YAVUZ v. AUSTRIA
Inadmissible
Nicolas Bratza
The applicant is a Turkish national, born in 1965 and living in Turkey. He is represented before the Court by Mr L. Weh, a lawyer practising in Bregenz. A. In November 1991 the applicant arrived in Austria. On 1 June 1992 he married an Austrian citizen. Subsequently he requested a work permit and a residence permit. In June 1992 he was given a work permit. The residence permit, however, was refused. On 12 August 1993 the Bregenz District Administrative Authority (Bezirkshauptmannschaft) issued a deportation order (Ausweisungsbescheid) against the applicant. It found that the applicant had no residence permit and that his stay in Austria was therefore unlawful. Thus, his removal from Austria was necessary in the public interest. The applicant, assisted by counsel, instituted appeal proceedings, which were terminated in April 1994 by the decision of the Administrative Court (Verwaltungsgerichtshof) which found that the deportation order was lawful. These proceedings were the issue of Application No. 25050/94 which was declared inadmissible by the European Commission of Human Rights on 16 January 1996. On 11 May 1994 the District Administrative Authority ordered the applicant to leave Austria. On the basis of the deportation order, the applicant was arrested in October 1994. On 12 October 1994 the applicant, assisted by lawyer, appealed to the Vorarlberg Independent Administrative Panel (Unabhängiger Verwaltungssenat) against his detention with a view to expulsion. He argued that his detention was not necessary because five months had already elapsed since the Authority’s order to leave Austria in May 1994. Besides, the Administrative Court’s decision of April 1994 was no longer enforceable for lapse of time. Furthermore, he requested the resumption of the expulsion proceedings and a hearing before the Independent Administrative Panel. On 18 October 1994, having taken into account the case-file and the Administrative Authority’s comments on the applicant’s appeal (Gegenschrift), the Independent Administrative Panel dismissed the appeal and upheld the applicant’s detention. It found that it was not competent to review the lawfulness of the underlying deportation order. It noted that the Administrative Court had found that the measure was lawful and that the applicant had been ordered to leave Austria on several occasions, but had not complied. He had been lawfully detained with a view to enforcing the expulsion, in accordance with Section 41 of the Aliens Act (Fremdengesetz). It noted further that the applicant was mistaken when arguing that the deportation order was no longer enforceable. Finally, it found that no hearing was necessary because the factual basis was clear from the file. On 29 November 1994 the applicant filed a complaint with the Constitutional Court (Verfassungsgerichtshof). He argued that his detention was not necessary and that the Independent Administrative Panel had violated Article 5 § 4 of the Convention as it had not held a hearing and had not communicated the District Authority’s comments on his appeal. On 28 February 1995 the Constitutional Court refused to deal with the case and transferred it to the Administrative Court. It found that Article 5 § 4 of the Convention did not guarantee a public hearing, and that access to the file as well as the submission of any further observations had been possible for the applicant throughout the proceedings. On 10 October 1995 the Administrative Court dismissed the complaint. It found that the detention with a view to expulsion had been necessary. As to a hearing, access to the file and the possibility to submit further information, it agreed with the Constitutional Court. The Administrative Court’s decision was served upon the applicant on 27 December 1995. B. Relevant domestic law Section 41 of the Aliens Act 1992 (Fremdengesetz), applicable at the material time, allows the arrest and detention of an alien if these measures are necessary to ensure, inter alia, expulsion. The detainee must be released as soon as the grounds for detention cease to exist. The maximum period of detention is limited to two months (Section 48). Everyone arrested and detained under the Aliens Act has the right to apply to the competent Independent Administrative Panel and to challenge the lawfulness of the arrest and the detention order (Section 51 § 1). An appeal may be filed either directly with the Independent Administrative Panel or with the authority of first instance. In the latter case this authority has to present the appeal to the Independent Administrative Panel within a maximum delay of two days (Section 51 § 2). Besides, the detaining authority has to inform the Panel immediately in case of the applicant’s release (Section 51 § 3). If the detainee, however, is not released before, the Independent Administrative Panel has to decide on the continuation of the detention within one week (Section 52 § 2). Section 17 of the General Administrative Procedure Act (Allgemeines Verwaltungsverfahrensgesetz) provides for the right to inspect the case-files. This section is applicable to proceedings concerning the review of an arrest or a detention with a view to expulsion.