PROCEDURE

The case originated in an application (no. 20597/04) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Ms Ilknur Gursoy (“the applicant”), on 1 June 2004.

The applicant was represented by Mr W.L. Weh, a lawyer practising in Bregenz. The Austrian Government (“the Government”) were represented by their Agent, Ambassador F. Trauttmansdorff, Head of the International Law Department at the Federal Ministry of Foreign Affairs.

On 5 September 2006 the Court decided to give notice of the application to the Government. Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and merits of the application at the same time.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1977 and lives in Lustenau. Her father is an Austrian national of Turkish origin. In February 1998 she entered Austria on a temporary visa, valid until 30 June 1998.

Following a report by the Dornbirn Aliens Police (Fremdenpolizei), on 28 January 1999 the Dornbirn District Administrative Authority issued a provisional penal order (Strafverfügung) of 1,000 Austrian schillings (ATS) – equal to 73 Euros (EUR) and 24 hours’ imprisonment in default against the applicant for illegal sojourn.

Subsequently, on 11 February 1999, she filed an objection (Einspruch) against that decision with the Dornbirn District Administrative Authority.

On 22 March 1999 the applicant, upon the District Administrative Authority’s request, filed a statement in which she specified that she had entered Austria with a valid visa on 26 February 1998. As proceedings for a residence permit were underway, she was in her view allowed to stay until the decision had become final. In addition she claimed that, according to certain EC directives and the Constitutional Court’s jurisprudence and in line with the ECJ’s constant case-law, she was legally residing in Austria, since her father had Austrian citizenship.

The Aliens Police submitted their observations on 16 August 1999, which were served on the applicant’s counsel on 23 August 1999. They stated that neither European Law nor domestic provisions could justify the applicant’s sojourn in Austria, which was in fact in breach of section 31 of the Aliens Act.

On 21 December 1999 the applicant filed further observations.

On 1 December 2000 the District Administrative Authority, having regard to the applicant’s objection and the above investigations, maintained its view and imposed a penal order in the amount of ATS 1,000 with 30 hours’ imprisonment in default. It found that although the applicant had entered with a valid visa, it had expired, following which her stay in Austria was in breach of the Aliens Act.

On 19 December 2000 the applicant filed an appeal with the Independent Administrative Panel (IAP). She alleged, inter alia, that the first-instance decision did not comply with EC law.

Having held an oral hearing, on 25 June 2001 the IAP , dismissed the applicant’s appeal. It referred to the Aliens Act, which exhaustively stipulated the conditions under which a foreigner’s residence could be deemed to be legal. Upholding the first-instance decision, it concluded that the applicant had disregarded her visa’s validity period, following which her sojourn was unlawful.

Subsequently, on 13 August 2001, the applicant lodged a complaint with the Administrative Court and the Constitutional Court.

On 10 October 2001 the Constitutional Court declined to deal with the case on account of its lack of prospects of success and transferred it to the Administrative Court.

The IAP submitted its observations to the Administrative Court on 25 October 2001.

On 19 November 2003 the Administrative Court, relying on section 33a of the Administrative Court Act (Verwaltungsgerichts-hofgesetz), declined to deal with the applicant’s case, finding that it did not raise important legal issues. On 1 December 2003 that decision was served on the applicant’s counsel.