YAGIZ v. AUSTRIA
Inadmissible
Nicolas Bratza
The applicant is a Turkish national, born in 1958, and living in Natters. He is represented before the Court by Mr. Horst Lumper, a lawyer practising in Bregenz. The applicant came to Austria in November 1989 without having a valid visa. In 1990 the Innsbruck District Administrative Authority (Bezirkshauptmannschaft) found him guilty of illegal entry and imposed a fine of 2,200 Austrian Schillings (ATS) on him. Subsequently, the applicant obtained a residence permit which was periodically renewed. In August 1991 his wife, who is also a Turkish national, as well as their son, born in 1975, and their daughter, born in 1985, were allowed to join him under a family reunion scheme. The applicant found employment as a worker. In 1993 the Innsbruck District Administrative Authority found him guilty of drunken driving and imposed a fine of ATS 12,100 on him. In 1994 the same authority found him guilty of refusing to undergo a breathalyser test when being reasonably suspected of drunken driving and imposed a fine of ATS 15, 400 on him. On 9 February 1995 the Innsbruck District Administrative Authority issued a residence ban valid for five years against the applicant. Referring to S. 18 § 1 and § 2 (2) of the 1992 Aliens Act (Fremdengesetz), according to which a residence ban has to be issued against an alien, inter alia, if he has been convicted more than once of a serious administrative offence, it found that the applicant’s convictions for drunken driving in 1993 and refusing to undergo a breathalyser test in 1994 constituted such serious offences. Although the residence ban constituted an interference with the applicant’s private and family life, this measure was necessary, as there were specific reasons to fear that his further stay would be a danger for public security. On 22 February 1995 the applicant, represented by counsel, filed an appeal. He argued that the residence ban against him was disproportionate, as the offences committed by him were not of a serious nature. Moreover, it forced him to separate from his family who were dependent on his income. Further, the applicant argued that Austria had become a member of the European Union on 1 January 1995 and was therefore bound by the Association Agreement between the European Union and Turkey. According to this Agreement and the decisions on its implementation, Turkish workers who had been legally employed in a member State for four years had a right of free access to the employment market and also to a residence permit. Moreover, measures of public security against such workers could not be based solely on criminal convictions but had to be justified by the specific conduct of the person concerned. On 3 October 1995 the Tyrol Public Security Authority (Sicherheitsdirektion) dismissed the applicant’s appeal. It confirmed that the applicant’s convictions in 1993 and 1994, relating to drunken driving and refusing a breathalyser test, constituted serious administrative offences within the meaning of S. 18 § 2 (2) of the Aliens Act. Referring to S. 20 of the said Act which requires the authority to weigh the negative consequences the residence ban would have for the alien and his family against the public interest in issuing a residence ban, it found in particular that the applicant had only lived in Austria since 1989 and his family since 1991. Moreover, his family could leave Austria with him. Having regard to the conduct of the applicant and the particular risks it entailed for life and limb as well as the property of others, he had to be considered as a danger for public safety. In sum, the interest in issuing the residence ban outweighed the interests of the applicant and his family in staying in Austria. Finally, the Association Agreement between the European Union and Turkey, relied on by the applicant, did not prohibit the issuing of a residence ban. On 25 October 1995 the applicant filed a complaint with the Constitutional Court (Verfassungsgerichtshof). He repeated the arguments he had already forwarded in his appeal to the Public Security Authority. On 27 November 1995 the Constitutional Court refused to entertain the applicant’s complaint and referred the case to the Administrative Court (Verwaltungsgerichtshof). On 20 March 1996 the Administrative Court dismissed the applicant’s complaint. It found that the contested residence ban was necessary within the meaning of Article 8 § 2 of the European Convention on Human Rights in the interests of public safety and the prevention of crime. Referring on the one hand to the gravity of the offences committed by the applicant and on the other hand to his short stay in Austria, the Court confirmed that the Public Security Authority had duly weighed the interests involved.