CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 26 juin 1996

.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. 26112/95                       by Ferhat ALAZCIOGLU                       against Austria        The European Commission of Human Rights (First Chamber) sitting in private on 26 June 1996, the following members being present:              Mr.    C.L. ROZAKIS, President            Mrs.   J. LIDDY            MM.    A.S. GÖZÜBÜYÜK                  A. WEITZEL                  M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL              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 16 June 1994 by Ferhat ALAZCIOGLU against Austria and registered on 4 January 1995 under file No. 26112/95;        Having regard to the reports provided for in Rule 47 of the Rules of Procedure of the Commission;        Having regard to the observations submitted by the respondent Government on 12 February 1996 and the observations in reply submitted by the applicant on 1 April 1996;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a Turkish national born in 1975 and presently residing in Vienna.   Before the commission he is represented by Mr. Th. Prader, a lawyer practising in Vienna.        The facts of the case, as they have been submitted by the parties, may be summarised as follows.        The applicant arrived in Austria in 1977 together with his parents and his two elder brothers.   Ever since he has been living in Austria where he also attended school.   He only returned to Turkey for holiday visits and speaks German much better than Turkish.        On 28 April 1992 the Vienna Juvenile Court (Jugendgerichtshof) convicted the applicant, inter alia, of robbery and aggravated bodily harm and sentenced him to a 34 months' prison term, 25 months of which were suspended on probation.        On 22 October 1992 the Vienna Federal Police Authority (Bundespolizeidirektion) issued a ten years' residence prohibition (Aufenthaltsverbot) under Section 3 paras. 1 and 2 (1) of the Aliens Act (Fremdenpolizeigesetz) against the applicant.   The Police Authority found that in view of the applicant's conviction the residence prohibition was necessary in the public interest.   The Police authority had also regard to the applicant's private and family situation.   In this respect the authority noted that the applicant's parents were living and working in Austria and that the applicant since his early youth had lived in Austria and had attended school there.   The Police Authority concluded, however, that in view of the seriousness of the applicant's conviction the public interest in imposing the residence prohibition was not outweighed by the applicant's personal situation.        The applicant did not appeal against the Federal Police Authority's decision of 22 October 1992.   However, at an unspecified date with the assistance of a lawyer he filed a request for revocation of the residence prohibition.        On 18 August 1993 the Vienna Federal Police Authority dismissed the applicant's request.   It found that the situation had not substantially changed since the imposition of the residence prohibition and that it was too early to assess whether the applicant had changed in a positive way.        On 15 November 1993 the Vienna Federal Security Authority (Sicherheitsdirektion) dismissed the applicant's appeal. It found that the public interest in preventing offences of the kind committed by the applicant outweighed his personal interest in staying, and that the residence prohibition was necessary for the prevention of crime and the protection of the rights of others.   Moreover, the Federal Police Authority had duly considered the applicant's personal situation and had issued only a limited residence prohibition for a period of ten years.        Thereupon the applicant lodged a complaint with the Administrative Court (Verwaltungsgerichtshof) which the latter dismissed on 4 May 1994.   The Administrative Court pointed out that on 28 April 1992 the applicant had been convicted not of minor offences but of serious and numerous crimes including the formation of a gang, forty counts of gang robbery, theft and aggravated bodily harm.        On 15 June 1994 the applicant was taken in provisional detention with a view to securing his removal from Austria.        On 17 June 1994 he was released from detention on his assurance that he would voluntarily leave the country.   On 24 June 1994 he left Austria for Turkey.        On 29 June 1994 the Austrian authorities granted the applicant a visa for returning to Austria, valid for one year, whereupon he returned to Vienna.        On 1 August 1995 the Vienna Federal Police Authority lifted the residence prohibition against the applicant.   The Authority found that the applicant had meanwhile shown a good conduct so that the reasons for which the residence prohibition had been imposed had ceased to exist.        On 21 September the Vienna Regional Governor dismissed a request by the applicant for a residence permit.   He found that the applicant, under the provisions of the Aliens Act, had to file such a request from abroad.   According to the applicant appeal proceedings are pending against this decision.   COMPLAINTS        The applicant complains under Article 8 of the Convention that the residence prohibition imposed on him violates his right to respect for private and family life.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 16 June 1994 and registered on 4 January 1995.        On 18 October 1995 the Commission decided to communicate the application to the respondent Government, pursuant to Rule 48 para. 2 (b) of the Rules of Procedure.        The Government's written observations were submitted on 12 February 1996, after an extension of the time-limit fixed for that purpose.   The applicant replied on 1 April 1996.   THE LAW        The applicant complains under Article 8 (Art. 8) of the Convention that the residence prohibition imposed on him violates his right to respect for private and family life.        The Government submit in particular that the applicant can no longer claim to be a victim, as the residence prohibition against him had been lifted.   The applicant contests this view and maintains that his right to respect for his private and family life has been violated because, following the lifting of the residence prohibition, he has not yet been granted a residence permit.        The Commission notes that a residence prohibition was issued against the applicant on 22 October 1992.   He left Austria on 24 June 1994 and returned after he was granted a visa for returning on 29 June 1994.   On 1 August 1995 the residence prohibition, which formed the basis of the present application, has been lifted.        The Commission notes further that from June 1994 on the applicant remained in Austria.   The application does not concern a refusal to grant a residence permit, and so the applicant's submissions that he should now be given such a permit is not pertinent (see also Bulut v. Austria, Comm. Report 5.5.96, para. 22, not published).   The Commission considers therefore that the matter has been resolved, within the meaning of Article 30 para. 1 (b) (Art. 30-1-b) of the Convention.        The Commission further considers that respect for Human Rights as defined in the Convention does not require the continuation of the examination of the application by virtue of Article 30 para. 1 in fine (Art. 30-1) 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)