The European Commission of Human Rights sitting in private on
13 March 1986, the following members being present:

                MM C.A. NØRGAARD, President
                   G. SPERDUTI
                   J.A. FROWEIN
                   E. BUSUTTIL
                   G. JÖRUNDSSON
                   G. TENEKIDES
                   S. TRECHSEL
                   B. KIERNAN
                   A.S. GÖZÜBÜYÜK
                   A. WEITZEL
                   J.C. SOYER
                   H.G. SCHERMERS
                   G. BATLINER
                   J. CAMPINOS
                   H. VANDENBERGHE
               Mrs G.H. THUNE
               Sir Basil HALL

               Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Art. 25 (Art. 25) of the Convention for the
Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 1 December 1982 by
H.I. against Austria and registered on 3 December 1982 under
file No. 10215/82;

Having regard to:

-       the Commission's decision of 14 July 1983 to bring the
application to the notice of the respondent Government and invite them
to submit written observations on its admissibility;

-       the observations submitted by the respondent Government on
18 October 1983 and the observations in reply submitted by the applicant
on 13 January 1984;

-       the Commission's decision of 9 July 1984 to invite the parties
to an oral hearing on the admissibility and merits of the application;

-       the Commission's decision of 12 October 1984 to postpone the
hearing in the light of the parties' information that they were
engaged in negotiations with a view to reaching an agreed solution of
the case;

-       the information submitted by both parties on 10 December 1985
that a solution had been agreed upon;

-       the applicant's declaration of 13 February 1986 that in the
light of the above agreed solution he wishes to withdraw the

Having deliberated;

Decides as follows:


The applicant is a Turkish citizen born in 1946 who is actually living
at Höchst, Vorarlberg.  He is represented by Mr. W.L. Weh, a lawyer
practising in Bregenz.

The applicant has been living in Austria since 1971.  His wife joined
him in 1974 and two children born in 1978 and 1981 respectively also
live with him in Austria.  His five elder children have remained in

In April 1980, the District Authority of Bregenz issued a temporary
residence prohibition against the applicant until 31 December 1985.
It was based on Section 3 (1) of the Immigration Control Act
(Fremdenpolizeigesetz BGBl.75/1954) which provides that a residence
prohibition may be issued upon an alien whose presence in the federal
territory endangers the public peace, order or security or is
otherwise contrary to the public interest.  The reason for the measure
in this particular case were repeated road traffic offences, the last
one involving a withdrawal of the applicant's driving licence for
18 months.

The applicant's appeal was rejected by the Regional Directorate of
Police (Sicherheitsdirektion) in August 1980.  It confirmed that
repeated administrative offences against road traffic regulations,
although not included in the list of specific cases justifying a
residence prohibition under Section 3 (2) of the Immigration Control
Act, nevertheless could provide a basis for such a measure under the
general clause contained in Section 3 (1).  Despite the withdrawal of
his driving licence, the applicant was considered as constituting a
potential danger for the public peace, order and security.  In the
authority's opinion, considerations relating to the applicant's
personal circumstances did not outweigh the public interest in his
removal from the Austrian territory.

The applicant then filed a constitutional appeal in which he invoked
in particular Art. 8 (Art. 8) of the Convention, alleging that the
Immigration Control Act violated this provision because it did not
limit the authorities' power to issue a residence prohibition against
a person by any considerations based on his family situation.  He
claimed that he had an established family life in Austria, and that
the residence prohibition which interfered with this family life was
disproportionate in the circumstances in particular because the public
interest was already protected by the withdrawal of his driving
licence which moreover had been ordered for a shorter period than the
residence prohibition.

The Constitutional Court rejected this complaint by a decision of 28
February 1981.  It confirmed an earlier decision (B343/79, official
collection of decisions No. 8792) where it had expressed the opinion
that Section 3 of the Immigration Control Act was in principle capable
of being applied in conformity with Art. 8 (Art. 8) of the Convention.
The family situation of the person concerned had to be taken into
account and had to be weighed against the public interest in his
removal from the federal territory.  The applicant's further
complaints were rejected on the grounds that the constitutional law
did not provide any guarantee against expulsion measures concerning an
individual alien, and that the principle of equality before the law
which, inter alia, forbids an arbitrary or unreasonable application
of the law, could not be invoked by an alien because it was only
guaranteed to Austrian citizens.

In accordance with the applicant's request, the Constitutional Court
referred the case to the Administrative Court with a view to
establishing whether any provisions of ordinary law had been
infringed.  The applicant submitted supplementary observations to the
Administrative Court pointing out in particular that the authority had
omitted to take evidence on his personal and family situation and had
failed to give complete reasons for its decision.  The administrative
offence which had given rise to the residence prohibition had been
given an exaggerated weight in comparison to the cases explicitly
stated in Section 3 (2) of the Immigration Control Act.

The Administrative Court rejected the complaint by a decision of
29 September 1982.  It considered that the road traffic offences of
which the applicant had been found guilty and which he had not denied
were by no means insignificant and were therefore capable of
justifying a residence prohibition under Section 3 (1) of the
Immigration Control Act.  The authority's assumption that the
applicant might also in future endanger the road traffic despite the
withdrawal of his driving licence and the sale of his car was based on
sufficient grounds and did not violate the law.  The argument that the
authority had failed to investigate the applicant's personal and
family situation was without object because these circumstances could
only be relevant for a decision under Section 6 (2) of the Immigration
Control Act (enforcement of a prohibition order) but not for the
question of ordering a residence prohibition as such.  Insofar as the
applicant had invoked Arts. 8 and 14 (Art. 8, art. 14) of the
Convention, the Administrative Court referred to the Constitutional
Court's above decision according to which no violation of the
applicant's constitutional rights under these provisions had been
established. Apart from that it observed that the measure complained
of was a restriction of the applicant's rights under Art. 8, para. 1
(Art. 8-1) which was provided for by law as required by Art. 8,
para. 2 (Art. 8-2) and which in the concrete case was necessary to
protect the public order and security as appeared from the reasons
given which corresponded to the factual and legal situation.

No further remedy was available against this decision.

In connection with the above proceedings, the applicant encountered a
number of difficulties to remain in the Austrian territory pending the
final decision.  His work permit and visa expired on 20 July 1980 and
only a short prolongation of the visa was granted at his request by
the District Authority of Bregenz.  The work permit was extended until
31 December 1981.

Following the rejection of his appeal by the Vorarlberg Directorate of
Police on 22 August 1980, the applicant was arrested on 23 September
1980.  He was told that he would be detained with a view to his
expulsion to Turkey.  Due to intervention of the Federal Ministry of
the Interior he was however released on the following day and a
suspension of the execution of the order was granted to him.

The applicant subsequently complained of his detention to the
Constitutional Court which found by a decision of 26 February 1982
that it had in fact been unconstitutional because it had not been
ordered by a prior administrative decision.

On 16 October 1980, the District Authority allowed a request of the
applicant to suspend the execution of the residence prohibition.  The
suspension was subject to revocation at any time and limited until
31 March 1981.

On 31 March 1981, the applicant requested a prolongation of the
suspension order until the hearing of his case by the Administrative
Court or until 30 June 1981.  He referred in particular to the fact
that his wife had given birth to a child in February.  The request was
first refused by a decision of 28 April 1981, but this decision was
revoked on 4 May 1981 on the ground that the applicant had not been
heard on the result of his wife's medical examination. After having
received the applicant's submissions on this issue, the District
Authority again refused the application by a decision of 24 June 1981.
By decision of the same date it ordered the applicant's detention in
view of his expulsion to Turkey and the applicant was immediately
arrested and deported to Turkey.

However, on the very same day, the 24 June 1981, the Administrative
Court allowed an application for suspensive effect which the applicant
had in the meantime made in connection with the proceedings before
this court.  It noted that the public interest in the immediate
execution of the residence prohibition against the applicant was in
substance based on the mere possibility that he might commit further
road traffic offences, an assumption which was not supported by any
concrete evidence.  In the given circumstances the public interest did
not outweigh the important private interests of the applicant such as
the loss of his job, the possible rupture of his family ties, and the
inavailability of adequate housing in Turkey.

Following this decision of the Administrative Court, the applicant
applied for permission to re-enter the Austrian territory. This was
granted by a decision of the Bregenz District Authority of
13 August 1981.  The authorisation to stay on Austrian territory was
limited until the Administrative Court's decision on the merits.  A
new work permit was refused to him.

After the negative decision of the Administrative Court, the applicant
was ordered to leave Austria by 28 December 1982.  He could then
obtain a further suspension of the execution of the residence
prohibition in view of the present proceedings before the Commission.
The applicant thus could in fact remain in Austria and subsequently
was also granted a new work permit.


The applicant complained of violations of his rights under Arts. 6, 8,
13 and 14 (Art. 6, art. 8, art. 13, art. 14) of the Convention.

1.      As regards Art. 6 (Art. 6), he invoked the Commission's
decision on the admissibility of Application No. 2991/66, Alam and
Khan v. the United Kingdom where the Commission recognised that the
right to entertain family contacts might come within the concept of a
civil right.  He further observed that the residence prohibition
interfered with his employment contract and, as a consequence of the
loss of his working income, with his maintenance obligations vis-à-vis
his family.

He considered Art. 6, para. 1 (Art. 6-1) had been breached by the
absence of full judicial control by an independent tribunal and by the
fact that throughout the proceedings he was never heard orally and in
person about his personal and family situation.

2.      As regards Art. 8 (Art. 8), the applicant submitted that his
family life was established in Austria where he lived with his wife
and a child and where a further child was born to him in February
1981.  The Constitutional Court has recognised that in similar
circumstances a residence prohibition must be considered as
constituting an interference with family life and must thus be
justified under Art. 8, para. 2 (Art. 8-2) of the Convention.

He submitted that in the present case the restriction was neither
"prescribed by law" nor "necessary in a democratic society". The
lawfulness of the residence prohibition was challeged because of the
authorities allegedly circumvented the more stringent requirement of
Section 3 (2)(b) of the Immigration Control Act by basing it on the
general clause in Section 3 (1) of that Act.

As regards the necessity of this measure, the applicant submitted that
it was not in line with the minimum response principle. Under the road
traffic regulations, the authority had apparently considered that he
would again be fit for driving after 18 months - otherwise it would
have been obliged to withdraw his licence for an indefinite period.
In these circumstances it was illogical to base a residence
prohibition for a considerably longer period (almost six years)
exclusively on the assumption of his being unfit for driving. The
disproportionality of the measure had in fact been recognised by the
Administrative Court in its decision on the suspensive effect.  In the
main decision, however, his family situation was not at all taken into
account although it should have been weighed against the public

3.      The applicant alleged a breach of Art. 13 (Art. 13)

of the Convention because the courts of public law in effect failed to
review the case under Art. 8 (Art. 8) of the Convention; the
Constitutional Court did not examine whether the measure was justified
under Art. 8, para. 2 (Art. 8-2) in the particular case, and the
Administrative Court expressly refused to apply Art. 8 (Art. 8) to the
issue of the residence prohibition as such.

4.      As regards Art. 14 (Art. 14) of the Convention, the applicant
did not submit any detailed arguments.  He only observed that the
constitu- tional principle of equality before the law as understood in
the Austrian legal system is not applicable to aliens who thus are not
protected against unreasonable or arbitrary application of the
Immigration Control Act.  This has been expressly confirmed by the
Constitutional Court in the present case.


The application was introduced on 1 December 1982 and registered on
3 December 1982.  The applicant's wife and his two children living with
him in Austria subsequently also introduced an application based on
the same facts and containing similar complaints (Application No.
10266/83), which the Commission examined jointly with the present
application.  However, this application was eventually rejected by a
decision of 9 July 1984.

The Commission first examined the application on 10 March 1983 when it
decided to ask the applicant for further information on his family
situation.  This information was submitted on 14 April 1983.

On 14 July 1983, the Commission resumed its examination and decided to
give notice of the application to the respondent Government and to
invite that Government, in accordance with Rule 42 (2)(b) of the Rules
of Procedure, to submit observations in writing on the admissibility
and merits of the application.  The parties were invited to deal in
particular with the following questions:

1.      Can the interference with the applicant's private and family
life brought about by the issue of a residence prohibition against him
be justified under Art. 8, para. 2 (Art. 8-2) of the Convention?

2.      Having regard to the combined effect of the Constitutional and
the Administrative Courts' decisions in the applicant's case, did the
proceedings before these courts constitute effective remedies in the
sense of Art. 13 (Art. 13) of the Convention to ensure that the residence
prohibition issued against the applicant was in fact in conformity
with the requirements of Art. 8 (Art. 8) of the Convention?

3.      Having regard to the inapplicability of the principle of
equality before the law to foreign nationals as found by the
Constitutional Court in the applicant's case, is there a
discrimination as between Austrian and foreign nationals as to the
protection of their right to respect for their family life, in
particular against arbitrary measures or measures based on an
unreasonable interpretation of the law (Art. 14 (Art. 14)
combined with Arts. 8 and 13 (Art. 8, art. 13) of the Convention)?

The Government's observations were submitted within the time-limit
fixed for that purpose, on 18 October 1983.  The applicant was invited
to reply before 8 December 1983, but this time-limit was subsequently
extended, at his request, until 15 January 1984.  The observations
were in fact submitted on 13 January and supplemented on 2 April 1984.

Without the case having returned before the Commission, the Government
submitted additional observations on 24 April 1984 and the applicant
commented thereon on 23 May 1984.

The applicant had already previously applied for legal aid, and this
was granted by the Commission on 16 December 1983.

On 14 July 1984, the Commission decided in accordance with Rule 42
(3)(b) of the Rules of Procedure, to invite the parties to submit
further observations orally at a hearing on the admissibility and
merits of the application.  The hearing was scheduled to take place on
7 March 1985.

However, by a letter received on 4 February 1985, the applicant's
lawyer informed the Commission that the respondent Government had
contacted him with a view to reaching an agreed solution, and he would
not exclude that such a solution might in fact materialise.
On 22 February 1985, the respondent Government requested the
Commission to postpone the hearing as there were good prospects of
reaching an agreed solution with the applicant.  In the light of these
developments, the Commission's President ruled on 25 February 1985 to
cancel the hearing on 7 March 1985.

The Commission considered the state of procedure on 12 October 1985.
It noted that the negotiations between the parties were still
continuing and therefore it decided to adjourn the further
consideration of admissibility.

On 10 December 1985, the Government informed the Commission that a
solution had been agreed with the applicant on the following basis:

1.      A lump-sum of AS 240,000.-  will be paid to the applicant as
compensation for all fees for the procedures and for all other
financial claims.

2.      The Federal Ministry of the Interior has instructed all its
authorities handling matters concerning foreigners (Fremdenpolizei)
in Austria to take particularly into account the family situation when
taking measures affecting such persons.

3.      The banishment from Austrian territory (Aufenthaltsverbot) is
formally withdrawn.  Likewise unrestricted visa will be granted to the
applicant and his family.

4.      The Federal Ministry for Foreign Affairs will use its
influence on the Federal Ministry for Social Affairs in order to
assure that the applicant will not suffer in his future career from
any damages resulting from the temporary interruption of his

The applicant's attorney, in turn, stated that he will not make any
further claims and will withdraw his application which he filed with
the Commission.

The applicant informed the Commission by a letter of the same date
(10 December 1985) that this agreement still required the approval of
the Federal Ministry of Finance, and that he would withdraw the
application as soon as this approval had been given.

By a further letter of 13 February 1986 the applicant informed the
Commission that most parts of the agreement had already been
fulfilled.  The necessity to consider the family situation of a
foreign national subject to a residence prohibition had not only been
emphasised in a circular instruction of the Federal Ministry of
Interior of 14 November 1985 (GZ 79030/10-II/14/85), it now would even
be regulated by specific legislative provisions.  In fact, by a
decision of 12 December 1985 the Constitutional Court had quashed
Section 3 of the Immigration Control Act, on the ground of lacking
precision, because it failed to provide for the consideration of the
family situation of a person struck by a residence prohibition.
Therefore, not only the applicant's claims had been satisfied, but
respect for Art. 8 (Art. 8) had been ensured on a general basis.
The applicant considered that in these circumstances the general
interest did not require the continuation of the proceedings, and
therefore he declared himself willing to withdraw the application.


The Commission finds that an agreed solution has been reached between
the parties which not only includes individual measures satisfying the
applicant's claims, but also a general instruction to the authorities
concerned intended to bring the practice of these authorities in
conformity with the requirements of Art. 8 (Art. 8) of the Convention.
The Commission finds that in these circumstances there are no reasons
of a general character affecting the observance of the Convention
which require further examination of the application. Accordingly the
Commission accedes to the applicant's request to withdraw his case.

For these reasons, the Commission:


Secretary to the Commission               President of the Commission

(H.C. KRÜGER)                              (C.A. NØRGAARD)