CEDH · CASELAW;REPORTS;ENG — 15 avril 1998

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HERNDL           9   APPENDIX:   DECISION OF THE COMMISSION AS TO THE           ADMISSIBILITY OF THE APPLICATION         11     I.   INTRODUCTION     1.   The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.     A.   The application   2.   The applicant is a Turkish citizen, born in 1965.   He was represented before the Commission by Mr L. Weh, a lawyer practising in Bregenz.   3.   The application is directed against Austria.   The respondent Government were represented by their Agent, Ambassador F. Cede, Head of the International Law Department at the Federal Ministry of Foreign Affairs.   4.   The case concerns the imposition of a residence prohibition on the applicant.   The applicant invokes Article 8 of the Convention.     B.   The proceedings   5.   The application was introduced on 25 April 1994 and registered on 10 June 1994.   6.   On 20 October 1994 the Commission decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.     7.   The Government's observations were submitted on 23 January 1995 after an extension of the time-limit fixed for this purpose.   The applicant replied on 20 March 1995.   On 10 September 1996 he submitted supplementary observations and informed the Commission about further developments in his case.   8.   On 7 April 1997 the Commission declared the application admissible.   9.   The text of the Commission's decision on admissibility was sent to the parties on 17 April 1997 and they were invited to submit such further information or observations on the merits as they wished.   10.   After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.   In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.     C.   The present Report   11.   The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:       MM   S. TRECHSEL, President       J.-C. GEUS           G. JÖRUNDSSON       A.S. GÖZÜBÜYÜK       A. WEITZEL       J.-C. SOYER       H. DANELIUS     Mrs   G.H. THUNE           MM   F. MARTINEZ       C.L. ROZAKIS     Mrs   J. LIDDY     MM   L. LOUCAIDES       B. MARXER       M.A. NOWICKI       I. CABRAL BARRETO       N. BRATZA       I. BÉKÉS       J. MUCHA       D. ŠVÁBY       G. RESS       A. PERENIČ       C. BÎRSAN       P. LORENZEN       K. HERNDL       E. BIELIŪNAS           E.A. ALKEMA       M. VILA AMIGÓ     Mrs   M. HION     MM   R. NICOLINI       A. ARABADJIEV     12.   The text of this Report was adopted on 15 April 1998 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   13.   The purpose of the Report, pursuant to Article 31 of the Convention, is:     (i)   to establish the facts, and     (ii)   to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.   14.   The Commission's decision on the admissibility of the application is annexed hereto.   15.   The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.   ESTABLISHMENT OF THE FACTS   16.   The applicant arrived in Austria in 1972, at the age of seven, and he lived with his parents until 1984.   In 1990 he married an Austrian citizen with whom he has three children.   They were born in 1985, 1987 and 1991 respectively and have Austrian citizenship.   The applicant used to work in Austria.   17.   On 14 January 1992 the Feldkirch Regional Court (Landesgericht) convicted the applicant of offences under the Narcotics Act (Suchtgiftgesetz) and sentenced him to two years' imprisonment.   The court established that between January and July 1991 the applicant had sold a total of 700 grams of heroin, and that at different periods between July 1990 and August 1991 he had consumed cannabis, cocaine and heroin.     18.   The Feldkirch Regional Court took into account, inter alia, that the applicant had admitted the acts imputed to him, that he had a clear criminal record and that he had started undergoing therapy which was progressing successfully.   The execution of the sentence was stayed until 1 July 1993 and the applicant was ordered to undergo in-patient disintoxication therapy.     19.   On 6 March 1992 the District Administrative Authority (Bezirkshauptmannschaft) in Bregenz imposed a residence prohibition on the applicant.   The decision states that in 1989 the applicant had tried to transport illegally thirty-three Turkish nationals into Germany.   The applicant admitted before the Austrian authorities that he had spent five weeks in detention in Kempten (Germany) and had paid a fine of DM 5,000.   The Administrative Authority further established that in the course of the preceding five years the applicant had committed thirteen administrative offences (Verwaltungsübertretungen) in Austria.   20.   The District Administrative Authority held that both the applicant's attempt to smuggle foreigners out of Austria and his conviction for drug offences represented a relevant reason for imposing a residence prohibition on him.   21.   The residence prohibition was based on Section 3 paras. 1 and 2 (1) of the Aliens Police Act 1954 (Fremdenpolizeigesetz) under which administrative authorities may issue a residence prohibition against an alien who, inter alia, has been convicted by a court and sentenced to a prison term exceeding three months.   22.   The Administrative Authority considered that in the light of the above findings the prohibition was necessary for the maintenance of public order and security.   The public interest in preventing the applicant from committing further offences in Austria prevailed over the applicant's interest in staying united with his family.   23.   On 20 October 1992 the Vorarlberg Police Headquarters (Sicherheitsdirektion) upheld the Bregenz District Administrative Authority's decision of 6 March 1992.   The Police Headquarters found that the residence ban was justified also under Section 3 para. 2 (5) of the Aliens Police Act 1954 pursuant to which a residence prohibition may be imposed on an alien who assisted other aliens in entering or leaving Austria illegally.      24.   The applicant lodged a constitutional complaint with the Constitutional Court (Verfassungsgerichtshof).   On 11 January 1993   the latter granted the applicant's complaint suspensive effect, but on 22 March 1993 it decided not to deal with it.   The case was transferred to the Administrative Court (Verwaltungsgerichtshof).   25.   In his further and better particulars to the Administrative Court the applicant claimed that the interference with his right to respect for his private and family life was disproportionate to the aim pursued.   In his view, the administrative authorities should have taken into account his behaviour and, in particular, his readiness to undergo a therapy.   He further complained that the administrative authorities had not paid due attention to the progress he had made in the course of that therapy, and to the decision to stay the execution of his prison sentence of 14 January 1992.   26.   On 30 September 1993 the Administrative Court dismissed the applicant's complaint.   It pointed out that the applicant had very seriously violated public order and security in that he had illegally transported foreigners out of Austria and had committed drug offences.   27.   The Administrative Court found that, in view of the particularly dangerous character of drug offences, the public interest prevailed in such cases over the private interests of the person concerned.   The Administrative Court further held:   [Translation]     "In view of these facts, neither the applicant's readiness to undergo therapy, nor the stay of execution of the sentence granted by the court was capable of affecting the balance between the conflicting interests which was properly struck by the administrative authority to the disadvantage of the applicant."   [Original]     "Von daher gesehen vermochte weder die Bereitschaft des Beschwerdeführers, sich einer Therapie zu unterziehen, noch der vom Gericht gewährte Aufschub des Strafvollzuges die richtigerweise zuungunsten des Beschwerdeführers ausgegangene behördliche Interessenabwägung zu beeinflussen."   28.   On 5 October 1993 the Innsbruck Court of Appeal (Oberlandesgericht), after having examined the final report of the hospital in which the applicant had been treated, suspended the applicant's prison sentence for a three years' probationary period.   29.   According to the medical report, the applicant underwent in-patient treatment from 7 November 1991 until 23 February 1992.   From the latter date until 24 July 1992 he spent only nights in the hospital while he worked during the day.   Subsequently, the applicant received out-patient social therapeutic treatment.   On 8 September 1993 the institution "Clean", an advisory body on drug questions, attested his motivation to abstain from the use of drugs in the future.   The Court of Appeal concluded, therefore, that the applicant's treatment had been successful and decided to mitigate his sentence. 30.   In view of this decision, the applicant requested that the residence prohibition imposed on him should be lifted.   His request was dismissed by the Bregenz District Administrative Authority on 12 July 1994.   On 3 November 1994 the Vorarlberg Police Headquarters upheld this decision.   The District Administrative Authority noted that under Section 26 of the Aliens Act a residence prohibition shall be lifted either on request or ex officio when the grounds on which such a prohibition was based no longer exist.   It considered, however, that the applicant was likely to re-offend in the future, and that the decision to mitigate his sentence did not warrant lifting the residence prohibition which had been imposed on him.   31.   On 3 November 1994 the Constitutional Court refused to deal with the applicant's complaint about the refusal to lift the residence prohibition.   It held that the complaint only raised issues under ordinary law, and that the case was not excluded from the jurisdiction of the Administrative Court.   III.   OPINION OF THE COMMISSION     A.   Complaint declared admissible   32.   The Commission has declared admissible the applicant's complaint that the residence prohibition imposed on him interfered with his right to respect for his private and family life.     B.   Point at issue   33.   Accordingly, the only point at issue in the present case is whether or not there has been a violation of Article 8 (Art. 8) of the Convention as a result of the imposition of a residence prohibition on the applicant.     C.   As regards Article 8 (Art. 8) of the Convention   34.   Article 8 (Art. 8) of the Convention, insofar as relevant, reads as follows:     "1.   Everyone 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 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."   35.   The Commission notes that it is not disputed between the parties that the imposition of a residence prohibition on the applicant amounted to an interference with his right to respect for his private and family life.   The Commission therefore finds that such an interference has occurred in the present case.   The question as to whether or not this interference can be justified, on the basis that it was "in accordance with the law", pursued one or several of the legitimate aims referred to in Article 8 para. 2 (Art. 8-2) and was "necessary in a democratic society", must therefore be addressed.   36.   It has not been contested in the proceedings before the Commission that the interference in question had a legal basis, namely Section 3 para. 1 and para. 2 (1) and (5) of the Aliens Police Act 1954, and that it sought to achieve aims which are compatible with the Convention, namely "the prevention of disorder or crime".   37.   As regards the necessity of the interference complained of, the applicant submits that it was disproportionate as his family and social ties were in Austria.   He maintains that the imposition of a residence prohibition on him was arbitrary as there existed no pressing social need for separating him from his family. 38.   The Government consider, with reference to the seriousness of the acts committed by the applicant and the risk that he could re-offend, that the interference with his rights was not disproportionate to the aim it pursued notwithstanding that the applicant was socially integrated in Austria.   39.   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 and residence of aliens and notably to order the expulsion of aliens convicted of criminal offences.   However, their decisions in this field must, in so far as they may interfere with a right protected under paragraph 1 of Article 8 (Art. 8), be necessary in a democratic society, that is to say, justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued.   40.   In determining whether the interference was "necessary", allowance has to be made for the margin of appreciation that is left to the Contracting States in this field.   The task of the Convention organs consists of ascertaining whether the measure in issue struck a fair balance between the relevant interests, namely the alien's right to respect for his or her private and family life, on the one hand, and the prevention of disorder or crime, on the other (see, e.g., Eur. Court HR, Boughanemi v. France judgment of 24 April 1996, Reports of Judgments and Decisions 1996-II, no. 8, pp. 609-610, paras. 41 and 42, with further references).   41.   The Commission notes, on the one hand, that the applicant was banned from Austria on the ground that he had been convicted of offences under the Narcotics Act and that he had been involved in illegal transport of foreigners from Austria to Germany.   In the Commission's view, the applicant's actions which gave rise to the imposition of a residence prohibition on him are of a serious nature.   42.   On the other hand, however, the Commission notes that the applicant arrived in Austria in 1972 when he was seven years old.   He lived there with his parents until 1984.   In 1990 he married an Austrian citizen with whom he has three children, all Austrian nationals.   The applicant used to work in Austria.   In sum, the   applicant was wholly integrated in Austria.   43.   Furthermore, when imposing the prison sentence on the applicant, the Feldkirch Regional Court took into account that the applicant had admitted the acts imputed to him, that he had a clear criminal record and that he had started undergoing disintoxication therapy which was progressing successfully.   The execution of the sentence was therefore stayed until 1 July 1993 with a view to permitting the applicant to undergo in-patient therapy.     44.   The Commission also notes that in the course of the proceedings concerning the imposition of a residence ban on him the applicant drew the attention of the Administrative Court to the progress which he had made in the course of his therapy.   However, in its decision of 30 September 1993 the latter held that neither the applicant's readiness to undergo therapy, nor the stay of execution of the sentence granted by the Feldkirch Regional Court could outweigh the public interest in banning the applicant from Austria. 45.   The Commission is of the opinion that when, as in the present case, the individual interests weigh sufficiently heavily in the balance to be struck, the interests of the State must give way to those individual interests.   In particular, and given the applicant's integration and strong family ties in Austria, his intensive effort to diminish the danger of his committing further offences under the Narcotics Act and the acknowledgment of his successful progress in this effort by the competent authorities prior to the delivery of the Administrative Court's decision of 30 September 1993, the Commission finds no "pressing social need" which would justify the residence prohibition imposed on the applicant.   Accordingly, the interference complained of was not proportionate to the legitimate aims pursued.     CONCLUSION   46.   The Commission concludes, unanimously, that in the present case there has been a violation of Article 8 (Art. 8) of the Convention.           M. de SALVIA                         S. TRECHSEL          Secretary                            President       to the Commission                    of the Commission      (Or. English)       CONCURRING OPINION OF M K. HERNDL         I fully share the Commission's view that not lifting the residence prohibition imposed on the applicant in the present case constitutes a violation of Article 8 of the Convention. There are, however, certain specific elements of the case, partly noted in the Commission's Report, which in my view have to be regarded as the decisive ones for the final assessment. I should accordingly like to refer to those elements once more even if this may be seen as repetitive in some way.     In the deportation/expulsion cases concerning the application of Article 8 which have come before the Court, the latter has inevitably and consistently taken into account as an important element for its assessment of the situation the personal conduct of the applicant (see i.a. the cases of Moustaquim (1991), Beldjoudi (1992) Nasri (1995) and most recently Boughanemi (1996); see in particular Eur. Court HR, Boughanemi v. France, judgment of 24 April 1996, Reports of Judgments and Decisions 1996-II, pp. 609-610, paras. 43 and 44).     A careful examination of the case-file tends to show that in the present case this decisive element was not adequately taken into consideration, if not misinterpreted, by the authorities of the respondent State when deciding that the interests of the State outweighed those of the applicant. When balancing the legitimate interests of the State especially in the area of the prevention of disorder or crime, against the legitimate interests of the individual, the authorities must under all circumstances proceed fairly and objectively and avoid jumping to conclusions which are not really substantiated. This is, in fact, one of the basic tenets of the Convention, a tenet which has found expression mainly in Article 6.     Has this principle been respected in the present case? While the applicant admittedly was convicted for offences under the Narcotics Act, the criminal court of first instance, when assessing his degree of guilt and dangerousness, had regard to his good conduct (see para. 18 of the Report) and stayed the execution of the sentence. Given the success of the therapy which the applicant underwent following his conviction, as certified by medical reports, the competent Court of Appeal then suspended the applicant's sentence altogether for a probationary period (see paras. 28 and 29 of the Report). This contrasts with the Administrative Court's decision upholding the residence ban without entering into a proper evaluation of the applicant's behaviour and conduct after his trial and conviction. While the lower instances simply had stated that the ban was necessary "to prevent further criminal acts" by the applicant, the Administrative Court based its decision mainly on the opinion that drug related offences are in general particularly dangerous and that this would per se justify the imposition of a residence ban even in cases where an offender is completely integrated in Austria. Neither view would seem to correspond to the reality of the applicant's case.       It is this element, namely the lack of an adequate appraisal of the applicant's conduct when determining whether his continued presence in Austria indeed endangered public security and was thus necessary for the "prevention of disorder or crime" - a determination which presupposed a fair balancing of the interests involved (on the basis of the objective elements of the case including the applicant's subjective and objective situation) - which may be considered as bordering on the arbitrary. The Commission was therefore correct in concluding that the interference with the applicant's rights under Article 8 of the Convention was not proportionate to the legitimate aim pursued.