CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 29 juin 1994

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 21630/93                       by Yao Min SUN                       against Austria         The European Commission of Human Rights (First Chamber) sitting in private on 29 June 1994, the following members being present:                MM.    A. WEITZEL, President                  C.L. ROZAKIS                  F. ERMACORA                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK            Mrs.   J. LIDDY            MM.    M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV              Mrs.   M.F. BUQUICCHIO, Secretary to the Chamber.         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 15 December 1992 by Yao Min Sun against Austria and registered on 7 April 1993 under file No. 21630/93;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:   THE FACTS         The applicant is a Chinese citizen, born in 1971.   He is currently living in Wenzou/China.   Before the Commission, he is represented by Mr. K.-P. Schrammel, a lawyer practising in Vienna.         The facts, as they have been submitted by the applicant, may be summarised as follows.   A.     Particular circumstances of the case         On 6 February 1991 the Vienna Regional Court (Landesgericht) convicted the applicant and four other co-accused under S. 14 subpara. 2 of the Aliens Act (Fremdenpolizeigesetz) of having, from May to December 1990, professionally organised and abetted the illegal entry (Schlepperei) of 30 aliens.   He was sentenced to a four months' prison term, suspended on probation.         On 14 February 1991 the Vienna Federal Police Authority (Bundes- polizeidirektion) issued a residence prohibition against the applicant for an indefinite period.   The Authority based its decision on S. 3 subpara. 2 (5) of the Aliens Act.   It noted that the applicant was living with his parents in Austria since 1983 and that he was working in their restaurant and that he had been convicted under S. 14 subpara. 2 of the Alien's Act.   The Authority considered that imposition of a residence prohibition on the applicant was necessary in the public interest as the organisation of illegal entry of aliens into Austria severely obstructed the police authorities' possibility to control the movements of aliens.   The Authority, weighing the public interests at stake and the applicant's interest in staying, found that the prevention of further crimes necessitated the applicant's expulsion and that his private interests did not outweigh the public interest in imposing the residence ban.         On 2 July 1991 the Vienna Federal Security Authority (Sicher- heitsdirektion) dismissed the applicant's appeal.   It noted that, beside his conviction of organising and abetting the illegal entry of aliens, the applicant had already been convicted in 1990 of illegally using identity documents of third persons (Gebrauch fremder Ausweise). It pointed at the utmost public interest in preventing such offences as committed by the applicant and, moreover, took into consideration the professional way in which he had organized the illegal entry of aliens.   The Federal Security Authority found in particular that the applicant's offences were not just a one time lapse but constituted a serious infringement of the public interest in securing an effective control over immigration and movement of aliens and the prevention of their exploitation.   Thus, the applicant's important private and family interests in staying and the lack of his links with China were clearly outweighed by the eminent public interest at stake.         On 9 June 1992 the Constitutional Court (Verfassungsgerichtshof) declined to entertain the applicant's complaint on the ground of no sufficient prospects of success and referred the case to the Administrative Court (Verwaltungsgerichtshof).         On 4 September 1992 the Administrative Court, confirming the reasoning of the administrative authorities, dismissed the applicant's complaint.   The Administrative Court referred to its previous case-law according to which the organisation and abetting of illegal entry of aliens interfered with the correct implementation of the Aliens Act and caused considerable costs for the Republic stemming from the removal of the aliens who had been brought illegally into the country. Furthermore, the exploitation of aliens who wished to be brought illegally to Austria by the organisers of such transports could only be effectively prevented by imposing residence prohibitions on the latter.         The applicant was meanwhile expelled to China.   B.     Relevant domestic law         Under S. 3 subpara 2 (5) of the Aliens' Act (Fremdenpolizei- gesetz), as in force at the material time, administrative authorities may issue a residence prohibition against an alien who, for his own benefit, was involved in abetting and organising the illegal entry of aliens.         Under S. 14 subpara. 2 of the Aliens' Act, everyone who, in a professional manner, abets and organises the illegal entry of aliens, shall be liable to up to 3 years' imprisonment.   COMPLAINTS         The applicant complains under Article 8 of the Convention that the Austrian authorities, when expelling him to China, did not have sufficiently regard to his family life.   He submits, in particular, that the expulsion was not necessary in a democratic society, as his conviction had been sufficient to prevent him from committing further offences.   THE LAW         The applicant complains under Article 8 (Art. 8) of the Convention about his expulsion to China.   He submits that this measure was not necessary in a democratic society, and thus constituted an unjustified interference with his right to respect of his family life.         Article 8 (Art. 8) of the Convention, as far as relevant, provides as follows:         "1.   Everybody has the right to respect for his private and       family life...         2.    There shall be no interference by a public authority with       the exercise of this right except such as in accordance with the       law and is necessary in a democratic society ... for the       prevention of disorder and crime ..."         The Commission considers that the applicant's expulsion to China amounted to an interference with his right to respect for his private and family life (see, Eur. Court H.R., Abdulaziz, Cabales and Balkandali judgment of 28 May 1985, Series A no. 94, pp. 32-33, para. 62-65; Beldjoudi judgment of 26 March 1992, Series A no. 234-B, p. 25, para. 67).   In this respect, the Commission notes that the applicant had been living for eleven years together with his parents in Austria.         Such an interference violates Article 8 (Art. 8) of the Convention, unless it is "in accordance with the law", pursues one of the legitimate aims enumerated in para. 2 of that provision and is "necessary in a democratic society" for the protection of the aforementioned aim.         The Commission notes that the legal basis for the expulsion was S. 3 subpara. 2 (5) of the Aliens Act.   Thus, the measure complained of was "in accordance with the law".         The Commission further considers that the measure complained of had a legitimate aim under Article 8 para. 2 (Art. 8-2) of the Convention, namely the prevention of disorder and crime.         As regards the question whether the interference was "necessary in a democratic society" for the above-mentioned aims, the Commission recalls that it is for the Contracting States to maintain public order, in particular by exercising their right, as a matter of well-established international law and subject to their treaty obligations, to control the entry, residence and expulsion of aliens (see, Eur. Court H.R., Beldjoudi judgment, loc. cit., p. 27, para. 74).         The Commission notes that the applicant has been found guilty of abetting and organising, in a professional manner, the illegal entry of aliens.   When issuing the residence prohibition, the Austrian authorities duly took into account the applicant's family links in Austria, and the lack of his links with China.   However, they found that the applicant's private interest in staying was clearly outweighed by the gravity of the offence at stake, committed on a professional basis.         Thus, the Commission, taking into account the margin of appreciation left to the Contracting States, is satisfied that the residence prohibition complained of did not go beyond what could be regarded as necessary in democratic society for the prevention of disorder and crime.   Thus, the interference with the applicant's family life complained of was justified under Article 8 para. 2 (Art. 8-2) of the Convention.         Consequently, there is no appearance of a violation of the applicant's rights to respect for his private and family life as guaranteed by Article 8 (Art. 8) of the Convention.         It follows that the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission unanimously         DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the First Chamber         President of the First Chamber        (M.F. BUQUICCHIO)                        (A. WEITZEL)