CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 30 novembre 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 }                           Application No. 21818/93                        by Ibrahim SATAR                        against Austria         The European Commission of Human Rights (First Chamber) sitting in private on 30 November 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                  G. RESS              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 4 May 1993 by Ibrahim Satar against Austria and registered on 11 May 1993 under file No. 21818/93;         Having regard to:   -      the reports provided for in Rule 47 of the Rules of Procedure of       the Commission;   -      the observations submitted by the respondent Government on       19 August 1994 and the observations in reply submitted by the       applicant on 19 October 1994;         Having deliberated;         Decides as follows:   THE FACTS         The facts of the case, as submitted by the parties, may be summarised as follows.         The applicant is a Turkish citizen, born in 1944, who has been residing since 1971 in Vorarlberg.   The applicant's wife moved in 1978 to Austria, and their three children were all born in Austria.   In the proceedings before the Commission, the applicant is represented by Mr. W. Weh, a lawyer practising in Bregenz.   A.     Particular circumstances of the case         On 4 February 1991 the Bregenz District Administrative Authority (Bezirkshauptmannschaft) issued a residence prohibition against the applicant for the period until 31 December 1995.   The Authority found that the applicant, since 1985, had repeatedly committed serious administrative offences, namely drunken driving of a motor vehicle and other related traffic offences.   The Authority further considered that the withdrawal of the applicant's driving licence could not alter its decision. It also noted that no family relations in Austria were known.         On 9 August 1991 the Vorarlberg Police Directorate (Sicherheits- direktion) dismissed the applicant's appeal.   It emphasised that the applicant had already been warned in 1985 following a conviction for drunken driving of his car that a prohibition on residence would be imposed upon him, if he committed further offences.   On 6 July 1990, however, the applicant again had driven his car under the influence of alcohol and had even caused an accident.   Furthermore, the Directorate considered that the applicant's interests in staying, his family ties in Austria and the lack of relations to Turkey were outweighed by the pressing need to protect public safety.         On 15 November 1991 the Constitutional Court (Verfassungs- gerichtshof), upon the applicant's request, granted a stay of execution of the prohibition on residence.         On 24 February 1992, however, the Constitutional Court declined to entertain the applicant's complaint as not offering sufficient prospects of success, and referred the case to the Administrative Court (Verwaltungsgerichtshof).         On 8 October 1992 the Administrative Court dismissed the applicant's appeal.   The Administrative Court considered in particular that the applicant had already been warned that a prohibition on residence would be imposed upon him, if he committed further offences. Moreover, in the circumstances of the present case, the considerations relating to the preservation of public security outweighed the considerations concerning the applicant's family life.         The decision was served on 4 November 1992.         On 5 February 1993 the Bregenz Administrative Authority dismissed the applicant's request of 27 January 1993 to lift the prohibition on residence against him.         On 18 June 1993 the Vorarlberg Security Directorate (Sicherheitsdirektion), on the applicant's appeal, lifted the prohibition on residence against him, pursuant to S. 20 of the Aliens Act (Fremdengesetz) which had entered into force on 1 January 1993. The Directorate found that, in accordance with the new legislation, a prohibition on residence could not be issued in the applicant's situation as he has been resident in Austria without interruption for ten years before the relevant offences were committed.   This new legislation had to be taken into account when deciding on a request to lift a prohibition on residence issued before 1 January 1993.         It appears that administrative proceedings regarding the applicant's residence permit are still pending.         Moreover, on 8 May 1994 the Bregenz Administrative Authority imposed a fine amounting to AS 3,000 upon the applicant for having violated, between 28 May 1993 and 3 May 1994, the relevant provisions of the Aliens Act on the ground that he had stayed in Austria without a residence permit.   Appeal proceedings are still pending.   B.     Relevant domestic law         Under Section 3 of the Austrian Aliens' Act (Fremdenpolizei- gesetz), in force until 31 December 1992, administrative authorities could issue a prohibition on residence against any alien who, inter alia, was convicted more than once for serious administrative offences, unless such an order would contravene Article 8 of the Convention.         S. 20 para. 2 of the Aliens Act, which entered into force on 1 January 1993, provides that no prohibition on residence may be issued against an alien if it would have been possible to grant him citizenship under S. 10 para. 1 of the Citizenship Act (i.e. if he has been resident in Austria without interruption for 10 years), before the relevant offences were committed, except in case of offences punishable with more than five years' imprisonment.     COMPLAINTS         The applicant complains under Article 8 of the Convention about an alleged interference with his right to respect for his family life. He contends that the measure complained of was not necessary in a democratic society, as required by Article 8 para. 2 of the Convention.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 4 May 1993 and registered on 11 May 1993.         On 7 April 1994 the Commission decided to communicate the application to the respondent Government for observations on the admissibility and merits.         On 19 August 1994, after an extension of the time limit, the Government submitted their observations.   The observations in reply by the applicant were submitted on 19 October 1994.   REASONS FOR THE DECISION         The applicant complains under Article 8 of the Convention that the prohibition on residence issued against him violated his right to respect for his family life.         The Government consider that the application should be struck off the Commission's list of cases.   They submit in particular that the applicant can no longer claim to be a victim of a violation of his right to respect for his family life, as the prohibition on residence against him was lifted.   They point out that the question of his future residence permit will decided upon in the context of further administrative proceedings which are still pending before the Austrian authorities.         The applicant contests this view and maintains that his right to respect for his family life has been violated.   He considers that he continues to be affected by the residence prohibition as long he has not been granted a residence permit.         The Commission notes that in 1991 a prohibition on residence until 31 December 1995 was issued against the applicant.   This decision was not enforced, and the applicant continued living in Austria.   In May 1993 his request that the prohibition on residence be lifted was granted, in accordance with the new Aliens Act, which had entered into force on 1 January 1993.   Thus, the measure complained of under Article 8 para. 1 of the Convention, namely the residence prohibition issued in 1991 has meanwhile been set aside by the Austrian authorities.   In this context, the Commission observes that to the extent that the question of the applicant's residence permit is examined in separate proceedings which are still pending, any complaints under Article 8 of the Convention appear premature.         In these circumstances the Commission considers that the Convention issue underlying the present application has been resolved within the meaning of Article 30 para. 1 (b) of the Convention. Moreover, the Commission finds no reasons of a general character affecting respect for Human Rights, as defined in the Convention, which require the further examination of the application by virtue of Article 30 para. 1 in fine of the Convention.         For these reasons, the Commission, unanimously         DECIDES TO STRIKE THE APPLICATION OFF ITS LIST OF CASES.   Secretary to the First Chamber        President of the First Chamber          (M.F. BUQUICCHIO)                        (A. WEITZEL)