CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 3 décembre 1997

.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. 22782/93                       by Mesut and Göker GÜMÜSKAYA                       against Austria        The European Commission of Human Rights (First Chamber) sitting in private on 3 December 1997, the following members being present:              Mrs    J. LIDDY, President            MM     M.P. PELLONPÄÄ                  E. BUSUTTIL                  A. WEITZEL                  C.L. ROZAKIS                  L. LOUCAIDES                  B. MARXER                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  M. VILA AMIGÓ            Mrs    M. HION            Mr     R. NICOLINI              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 28 September 1993 by Mesut and Göker GÜMÜSKAYA against Austria and registered on 18 October 1993 under file No. 22782/93;        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      27 October 1995 and the observations in reply submitted by the      applicants on 19 December 1995;        Having deliberated;        Decides as follows:   THE FACTS        The applicants are brothers and Turkish citizens.   They were both born in Vienna, Mesut Gümüskaya ("the first applicant") in 1972 and Göker Gümüskaya ("the second applicant") in 1974.   Before the Commission the applicants are represented by Mr. T. Prader, a lawyer practising in Vienna.        The facts of the case, as submitted by the parties, may be summarised as follows.        Both applicants were brought up by their parents in Vienna.   In 1979 the first applicant left his parents and lived with his grandparents in Turkey.   He came back in 1984 and terminated his school in Vienna.   Subsequently he worked as a manual worker for various Austrian firms.   The second applicant lived exclusively with his parents and sister in Vienna and visited Turkey only for short holiday visits.   He attended school in Vienna and subsequently went on to a commercial school.   He worked as a manual worker, too.        On 4 October 1990 the Vienna Juvenile Court (Jugendgerichtshof) convicted   the second applicant of aggravated robbery (schwerer Raub), serious bodily harm (schwere Körperverletzung) and burglary (Einbruchsdiebstahl) and the first applicant of aggravated robbery and attempted burglary.   The court sentenced the second applicant to twenty-one months' imprisonment, fourteen months of which were suspended on probation, and the first applicant to eighteen months' imprisonment, twelve months of which were suspended on probation.        The Juvenile Court established that in the course of the night from 5 to 6 May 1990 the applicants, together with six other young persons most of whom belonged to a gang, had forcibly taken away sums of money between twenty and fifty schillings respectively from some sixteen persons, a pair of sports shoes from another person and had attempted to rob money and cigarettes from another three persons.        The court noted that the perpetrators had surrounded their victims in a threatening manner and punched and kicked them when they refused to hand over cash and other objects.   One of the perpetrators threatened the victims also with a knife.    The court held further that the applicants and five other accused had acted as look-outs while another member of the group had been trying to force a cigarettes vending machine.        In addition, the court found that, in the same night, the second applicant and another accused had stolen a tennis racket from a cabriolet and that later the second applicant had hit the head of two persons with that racket.        When imposing the sentences the Juvenile Court noted that the offences in question had been committed by an organised gang.   As regards the applicants, the court took into consideration, inter alia, that they had so far no criminal record, had admitted the offences, had not benefitted from the robbed objects, that there was nothing to show that they had a tendency to committing criminal offences and that they had a regular job.   The court also noted that the applicants had not belonged to the most aggressive perpetrators of the offences in question and that, unlike four other accused, they had committed no further offences after 6 May 1990.          On 23 April 1992 the Vienna Federal Police Authority (Bundes- polizeidirektion) imposed, pursuant to Section 3 paras. 1 and 2 (1) of the Aliens Act (Fremdenpolizeigesetz), a residence prohibition expiring on 30 June 2002 on the applicants.        The Police Authority held, with reference to the applicants' conviction of 4 October 1990, that their further stay in Austria constituted a danger to public order and security and that the public interest in imposing the residence prohibition was not outweighed by the applicants' personal links to Austria.        The Police Authority also noted that on 18 July 1991 the first applicant had been accused of being in the possession of drugs and on 18 October 1991 proceedings had been instituted on suspicion of his having committed a theft.   In the case of the second applicant the Police Authority noted that on 18 November 1991 charges had been laid against him for having caused bodily harm.        On 1 September 1992 the Vienna Security Authority (Sicher- heitsdirektion) dismissed the applicants' appeals.   It held that, contrary to the applicants' allegations, the conviction of 4 October 1990 related to serious offences that could not be minimised.        The decisions further stated that the situation of the applicants had been duly taken into account in that the residence prohibition had been imposed on them for a limited period expiring in 2002.   The Security Authority also noted that the applicants' grandparents lived in Turkey and that consequently they had family ties also in that country.        As regards the case of the first applicant, the Security Authority noted, in addition, that he had lived with his grandparents and had attended school in Turkey from 1979 to 1984.   The Security Authority considered it irrelevant that the proceedings instituted on 18 October 1991 had been discontinued and recalled that the decision to impose a residence prohibition on the first applicant had been based on his conviction of 4 October 1990.        As to the case of the second applicant, the Security Authority refused to wait for the outcome of the criminal proceedings that were then pending against him and noted that he did not contest the facts imputed to him in the context of those proceedings.        On 23 November 1992 the Vienna Juvenile Court convicted the second applicant of having organised a gang, of serious bodily harm and assault (gefährliche Drohung) and imposed a conditional five months' prison sentence on him.   At the same time the Juvenile Court extended his period of probation relating to his conviction of 4 October 1990 to five years.        On 9 December 1992 the Constitutional Court (Verfassungs- gerichtshof) decided not to deal with the applicants' complaints.        On 14 April 1993 the Administrative Court (Verwaltungs- gerichtshof) dismissed the applicants' complaints.   It noted that the applicants did not contest that the measure complained of had been taken in accordance with the relevant provisions of the Aliens Act and held that the authorities had struck a correct balance between the interests of public safety and maintaining order and peace as compared to the private interests of the applicants in staying in Austria.        In the Administrative Court's view, the offences of which the applicants had been convicted showed that they had little respect for the physical integrity of other persons and therefore the public interest had to prevail.   The Administrative Court considered it irrelevant that the applicants had an employment in Austria and that their only family tie in Turkey was their grandfather.        On 3 February 1995 the Vienna Juvenile Court irrevocably remitted a part of the sentence which it had imposed on the first applicant on 4 October 1990.        On 28 November 1995 the Federal Ministry of Interior instructed the Austrian diplomatic missions to Turkey to issue tourist visa with a year's validity to the applicants.        On 7 April and on 20 August 1997 the applicants' lawyer informed the Commission that the aforesaid tourist visa had expired on 17 December 1996.   The first applicant had unsuccessfully tried to obtain a new permission to enter Austria and continued to live there without any legal basis.   As a result, he had no right to work in Austria and was under the constant threat of being expelled.   The applicants' lawyer further informed the Commission that the second applicant lived in Turkey and tried, with the assistance of another lawyer, to have the residence prohibition in Austria lifted.   COMPLAINT        The applicants invoke Article 8 of the Convention considering that in their cases the residence prohibition amounts to a disproportionate and unjustified interference with their right to respect for their private and family life.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 28 September 1993 and registered on 18 October 1993.        On 27 June 1995 the Commission decided to communicate the application to the respondent Government.        The Government's written observations were submitted on 27 October 1995, after an extension of the time-limit fixed for that purpose.   The applicants replied on 19 December 1995.   THE LAW        The applicants complain that the residence prohibition which was imposed on them amounts to a disproportionate and unjustified interference with their right to respect for their private and family life.   They allege a violation of Article 8 (Art. 8) of the Convention which provides as follows:        "1.    Everyone has the right to respect for his private and      family life, his home and his correspondence.        2.     There shall be no interference by a public authority with      the exercise of this right except such as is in accordance with      the law and is necessary in a democratic society in the interests      of national security, public safety or the economic well-being      of the country, for the prevention of disorder or crime, for the      protection of health or morals, or for the protection of the      rights and freedoms of others."        The Government contend that the interference complained of had a legal basis, namely Section 3 paras. 1 and 2 (1) of the Aliens Act, and that it pursued the legitimate aim of maintaining public safety and order.        The Government further submit that the applicants were convicted of unusually serious offences which they had committed as members of a gang and that subsequently the second applicant was again convicted of other serious offences.   The Government therefore consider that the applicants' further stay in Austria constituted a serious risk to public safety and order and that the imposition of a residence prohibition on them was therefore necessary within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.        In the Government's view, the interference in question was proportionate to the legitimate aim pursued as the Austrian authorities had taken into account the applicants' age and had imposed a residence prohibition on them only for a limited period.   Furthermore, the respondent Government refer to the fact that the first applicant spent, while he was a child, five years in Turkey and that the second applicant did not claim that he did not speak Turkish.        Finally, the Government submit that the applicants are not married and have no children, and that they can reasonably be expected to find in their home country a similar job as they had in Austria.        The applicants admit that they violated Austrian law while belonging to a juvenile gang.    They explain that they were members of the gang, similarly as it is the case of many other young persons both in the cities and in the countryside, because of the feelings of resentment towards the recognized values of the society which is a characteristic feature of transition from puberty to early adulthood. They contend that their membership in the gang was not of a lasting character and that they played only a subordinate role in it.        In the applicants' view, their conviction of 4 October 1990, account being taken of their age and the circumstances under which they committed the offences, does not justify the conclusion that they represent a serious and lasting risk to public safety and order in Austria.        In particular, the applicants contend that their acting as such was not particularly serious and that it formally constituted an aggravated robbery under Austrian law because the offences had been committed by a juvenile gang a member of which had threatened the victims with a knife.        They further point out that they were convicted of attempted burglary on the ground that they had acted as look-outs while another member of the group had tried to force a cigarettes vending machine with a knife.   The second applicant contends that he did not inflict serious injuries on anybody but that his acting was formally qualified as causing serious bodily harm because the injuries were inflicted by three perpetrators acting together.        The applicants therefore consider that their acting in the night to 6 May 1990 did not constitute, in its very substance, particularly serious offences.            The applicants consider it irrelevant in the circumstances of their case whether or not they speak Turkish and whether or not they are married.   They conclude that the decision to impose a residence prohibition on them was not proportionate to the aim pursued.        In addition, the second applicant objects that the decision to impose a residence prohibition on him was based exclusively on his conviction of 4 October 1990.   He therefore submits that his subsequent conviction of 23 November 1992 should not be taken into consideration when deciding on his application.        The Commission considers, in the light of the parties' submissions, that the case raises complex issues of law and of fact under the Convention, the determination of which should depend on an examination of the merits of the application.   The Commission concludes therefore, that the application is not manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   No other grounds for declaring it inadmissible have been established.        For these reasons, the Commission, by a majority,        DECLARES THE APPLICATION ADMISSIBLE, without prejudging the      merits of the case.       M.F. BUQUICCHIO                                  J. LIDDY      Secretary                                     President to the First Chamber                          of the First Chamber