CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 17 janvier 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. 26495/95                       by Shahin MUSTAFAI-NEJAD                       against Austria        The European Commission of Human Rights (Second Chamber) sitting in private on 17 January 1997, the following members being present:              Mrs.   G.H. THUNE, President            MM.    J.-C. GEUS                  G. JÖRUNDSSON                  A. GÖZÜBÜYÜK                  J.-C. SOYER                  H. DANELIUS                  F. MARTINEZ                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN                  K. HERNDL                  E. BIELIUNAS                  E.A. ALKEMA              Ms.    M.-T. SCHOEPFER, 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 11 January 1995 by Shahin MUSTAFAI-NEJAD against Austria and registered on 13 February 1995 under file No. 26495/95;        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      5 December 1995 and the observations in reply submitted by the      applicant on 10 May 1996;        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 an Iranian national, born in 1970 and residing in Vienna.   In 1975, at the age of five years he arrived in Austria, together with his mother and three elder brothers and sisters.   His father, a former high-ranking officer of the Shah regime, remained in Iran.        On 10 February 1993 the applicant requested the Vienna Federal Police Authority to prolong his residence permit.        On 24 March 1993 the Police Authority informed the applicant that his residence permit would not be prolonged and that in view of previous criminal convictions it was intended to impose a residence prohibition (Aufenthaltsverbot) on him.        On 5 April 1993 the applicant, assisted by counsel, objected to the Police Authority's intention to impose a residence prohibition on him.   He submitted that he had arrived in Austria in 1975 together with his mother and three elder brothers and sisters.   At that time he had been five years old and ever since he had been living in Austria.   He hardly spoke Persian and had no family relationship in Iran any longer, as his parents divorced in 1976 and founded new families.   In Austria he was well integrated.   He ran a concert artists' agency organising also musical and social events.   He was living together with an Austrian girl-friend he intended to marry.        On 23 August 1993 the Vienna Federal Police Authority (Bundespolizeidirektion) imposed a ten years' residence prohibition on the applicant.   It noted that in September 1986 the applicant had been convicted of theft and sentenced to a suspended prison term of two months.   In June 1991 he had been convicted again of theft and sentenced to a suspended prison term of one month.   In August 1992 he had been fined by the police authorities for tumultuous behaviour against a police officer carrying out his duty (ungestümes Benehmen gegenüber einem Polizeibeamten).   The Federal Police Authority found that in view of the applicant's criminal record the imposition of a residence prohibition was necessary in the public interest and that the applicant's private interests in staying in Austria did not outweigh the public interest.        On 27 August 1993 the applicant appealed against the residence prohibition invoking Article 8 of the Convention.        On 14 January 1994 the Vienna Federal Security Authority (Sicherheitsdirektion) dismissed the applicant's appeal and confirmed the Federal Police Authority's decision.   It noted that further to the convictions taken into consideration by the Federal Police Authority, the applicant had also been convicted in June 1988 of theft and sentenced to a suspended term of imprisonment of three weeks and in April 1990 he had been convicted of having caused serious bodily harm and sentenced to a suspended term of imprisonment of nine weeks.   The applicant's criminal record therefore did not consist of two but of four convictions.        On 8 March 1994 the applicant filed a complaint with the Constitutional Court (Verfassungsgerichtshof) in which he submitted that the residence prohibition violated his right to respect for his private and family life.        On 12 March 1994 the Constitutional Court refused to entertain the applicant's complaint and referred the case to the Administrative Court (Verwaltungsgerichtshof).   On 1 June 1994 the Administrative Court dismissed the applicant's complaint.   COMPLAINTS   1.    The applicant complains under Article 8 of the Convention that his expulsion to Iran would violate his right to respect for his private and family life.   2.    He further complains under Article 3 of the Convention that his expulsion to Iran would constitute inhuman treatment.   He submits that he risks persecution in Iran as in 1981 and 1982 he and his brother had been active in an Iranian pro-monarchist exile movement and had been interrogated on these activities by the Iranian Embassy.   Furthermore, part of his present business activities is the catering of alcoholic beverages which constitutes an offence in Iran and if prosecuted for this offence he would risk imprisonment between six months and two years.   He had not been able to invoke these circumstances before the police authorities, which could have led to the issuing of an order under Section 54 of the Aliens Act prohibiting his deportation to Iran as he had not been informed by the authorities of the possibility to file such a request.   3.    Lastly, he complains under Article 1 of Protocol No. 7 that he had no possibility to submit reasons against his expulsion as the police authorities had failed to inform him about the possibility of obtaining an order under Section 54 of the Aliens Act.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 11 January 1995 and registered on 13 February 1995.        On 6 September 1995 the Commission decided to communicate the application to the respondent Government and invited it to submit observations with regard to the applicant's complaint that the residence prohibition against him violated his right to respect for his private and family life.        The Government's written observations were submitted on 5 December 1995.   The applicant replied on 10 May 1996 after the time- limit had expired.   THE LAW   1.    The applicant complains under Article 8 (Art. 8) of the Convention that his expulsion to Iran would violate his right to respect for his private and family life.        Article 8 (Art. 8) of the Convention reads 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 submit that the residence prohibition imposed on the applicant was necessary in an democratic society in view of the applicant's criminal record.   He had been convicted four times of offences which related to the same type of unlawful behaviour.   In view of his criminal record the Austrian authorities could reasonably conclude that the applicant's stay in Austria was likely to endanger the country's public peace, order and safety.   Moreover, he had been warned that in case of further convictions of criminal offences a residence prohibition would be imposed on him but nevertheless he became recidivist.   As regards the applicant's family life, the Government submit that the applicant has family links to the country of his origin as his father is still living there and other members of his family, at least temporarily, moved to Iran.        This is contested by the applicant.   He submits that he has been living in Austria for nineteen years and arrived there at the age of five.   He had attended school in Austria and had only little command of Persian.   As regards his criminal record, it merely consisted of four convictions of offences which were not particularly serious and the sentences imposed by the criminal courts were light.   The residence prohibition imposed on him therefore constituted a disproportionate measure which violated his rights under Article 8 (Art. 8) of the Convention.        The Commission finds that this complaint raises serious questions of fact and law which require an examination of the merits.   This aspect of the case cannot, therefore, be regarded as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention, and no other ground for declaring it inadmissible has been established.   2.    The applicant further complains under Article 3 (Art. 3) of the Convention that his expulsion to Iran would constitute inhuman treatment as he risks persecution there.   He also invokes Article 1 of Protocol No. 7 (P7-1) in this respect.        However, the Commission is not required to decide whether or not the facts alleged by the applicant disclose any appearance of a violation of Article 3 (Art. 3) of the Convention or of Article 1 of Protocol No. 1 (P1-1) as, under Article 26 (Art. 26) of the Convention, it may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law.        The Commission notes that the applicant neither filed an asylum request nor requested an order under Section 54 of the Aliens Act prohibiting his deportation to Iran.   Since the applicant was represented by counsel throughout the proceedings on the residence prohibition the Commission is not persuaded by the applicant's argument that the authorities failed to inform him of the provision of Section 54 of the Aliens Act.        It follows that in this respect the applicant did not comply with the requirement of exhaustion of domestic remedies stipulated by Article 26 (Art. 26) of the Convention.        This part of the application must, therefore, be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.        For these reasons, the Commission, by a majority,        DECLARES ADMISSIBLE, without prejudging the merits, the      applicant's complaint that the residence prohibition against him      violates his right to respect for his private and family life;        DECLARES INADMISSIBLE the remainder of the application.      M.-T. SCHOEPFER                               G.H. THUNE       Secretary                                   President to the Second Chamber                       of the Second Chamber