CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 6 septembre 1995

.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. 21510/93                       by Ücler KOCAK                       against Austria        The European Commission of Human Rights (First Chamber) sitting in private on 6 September 1995, the following members being present:              Mr.    C.L. ROZAKIS, President            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  M.P. PELLONPÄÄ                  G.B. REFFI                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV                  G. RESS                  A. PERENIC              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 2 March 1993 by Ücler KOCAK against Austria and registered on 11 March 1993 under file No. 21510/93;        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 Turkish citizen residing in Aksaray (Turkey).        In the proceedings before the Commission he is represented by Mr. Helmut Blum, a lawyer practising in Linz.        On 14 June 1991 the applicant entered Austria without a valid visa. On 20 June 1991 he registered his address with the police in Linz.        On 21 June 1991 the applicant personally called on the Linz Federal Police Directorate (Bundespolizeidirektion) and applied for a visa. He was immediately arrested and his detention pending deportation ordered by virtue of Section 57 para. 1 of the General Administrative Procedure Act (Allgemeines Verwaltungsverfahrensgesetz - AVG) on the grounds that he had circumvented the border control when he had entered Austria and had indicated a fictitious address. The applicant had thus committed administrative and criminal offences and there was a danger that he might commit further offences and evade the deportation procedure.        On 21 June 1991 the applicant appealed to the Independent Administrative Senate for Upper Austria (Unabhängiger Senat für das Land Oberösterreich).        On 25 June 1991 the applicant was deported.        On 28 June 1991 the Independent Administrative Senate for Upper Austria declared the applicant's detention pending deportation unlawful on the ground that, although the applicant's detention was not in breach of substantive law, the Federal Police Directorate had erroneously based its decision on Section 57 para. 1 of the General Administrative Procedure Act, instead of giving a well reasoned decision pursuant to Sections 58 and 60 of this Act. The Independent Administrative Senate held that the Federal Police Directorate should have stated explicitly the reasons for its assumption that there was an imminent risk (Gefahr im Verzuge) that the applicant might commit further offences and evade the deportation proceedings. In the absence of such reasons, the decision of the Federal Police Directorate did not constitute a valid legal basis for the applicant's deprivation of liberty.        Thereafter the applicant filed a compensation claim in an amount of 5 000 AS in respect of his unlawful arrest and detention from 21 to 25 June 1991.        By a judgment of 18 March 1992 the Linz Regional Court (Landesgericht) dismissed the applicant's claim.        The Regional Court found that the applicant's detention was not unlawful because of a possible procedural mistake, since there was no violation of substantive law in his case. His detention had been ordered in accordance with a procedure prescribed by law and did not give raise to any compensation under Article 5 para. 5 of the Convention or Section 7 of the law on the protection of the freedom of persons (Personenfreiheitsschutzgesetz).        On 24 December 1992 the Linz Court of Appeal (Oberlandesgericht) dismissed the applicant's appeal against this judgment. It confirmed the Regional Court's view that, the form of the contested decision did not affect in any way the lawfulness of the applicant's detention under Section 5 para. 1 of the Aliens Police Act.   COMPLAINT        The applicant complains that the Austrian authorities have violated his right to compensation as guaranteed by Article 5 para. 5 of the Convention.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 2 March 1993 and registered on 11 March 1993.        By a letter of 2 May 1995 the Secretariat informed the applicant's lawyer that it was intended to include the application in the list of cases for examination by the Commission in the near future.        He was therefore requested to inform the Commission whether the applicant wished to maintain his application and to submit a power of attorney.        On 15 May 1995 the applicant's lawyer replied that he intended to maintain the application on behalf of the applicant. He also informed the Commission that he was unable to submit a power of attorney in writing, since he could not contact the applicant who lived in Turkey. He had, however, been orally authorised by the applicant before his deportation to take all the necessary steps to defend his legal interests.   REASONS FOR THE DECISION        The Commission notes that when the application was registered it seemed that it had been lodged by the applicant himself as it was written in the first person singular and the signature was illegible.        It subsequently became clear that the case had been lodged by a lawyer and, in accordance with the Commission's usual practice, he was requested to submit a power of attorney which is essential to establish the validity of the application.        However, the applicant's representative has failed to provide such authorisation from the applicant with whom he apparently has had no contact for four years.        In these circumstances, the Commission considers that it is no longer justified, in accordance with   Article 30 para. 1 (c) of the Convention, to continue the examination of the petition. Moreover, the Commission finds no reasons of a general character affecting respect for Human Rights, as defined in the Convention, which requires 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)                         (C.L. ROZAKIS)