AS TO THE ADMISSIBILITY OF
Application No. 26556/95
by A.B.A.
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 27 June 1995, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
Mrs. M.F. BUQUICCHIO, 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 1 June 1994 by
A.B.A. against Germany and registered on 17 February 1995 under file
No. 26556/95;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Tunisian citizen, born in 1949, and presently
hiding in Germany. He is represented by Mr. Feldmann, a lawyer
practising in Hohenwestedt.
The applicant complains about the imminent risk of being sent
back to Tunisia where he allegedly risks the death penalty.
It follows from his statements and the documents submitted that,
in 1975, the applicant had already made an unsuccessful request for
political asylum in Germany.
He returned to Tunisia in 1980. On 29 November 1990 he again
travelled to Germany and made a new request for political asylum. He
was summoned to a hearing at the Federal Office for the Recognition of
Foreign Refugees (Bundesamt für die Anerkennung ausländischer
Flüchtlinge) but did not appear. His lawyer stated in a letter of
28 January 1994 that the applicant had seen no reason to appear because
he had already been heard in 1975.
On 4 February 1994 the applicant submitted the following reasons
for his request to be granted asylum: he had been arrested after his
return to Tunisia and had been accused of being a member of an illegal
political party. He had been sentenced to six years' imprisonment.
Subsequent to his release from prison there were two attacks on Western
tourists in Tunisia. Afraid of being connected to these attacks, he
had gone into hiding. Allegedly criminal proceedings were nevertheless
instituted against him in his absence and he was convicted and
sentenced, the death sentence being imposed. This sentence was later
changed to life imprisonment.
On 7 April 1994 the above-mentioned Federal Office refused to
grant asylum and requested the applicant to leave Germany within one
week of receipt of the decision. The office stated that the request
had been made out of time and noted in addition that the applicant had
obtained a Tunisian passport on 14 July 1990.
The applicant then brought an action before the Administrative
Court in Schleswig-Holstein claiming asylum. This action was dismissed
on 12 October 1994. The Court considered that the applicant's
allegations were unproven. It noted that in 1987 the new Tunisian
Government introduced an amnesty with regard to all convictions prior
to 1987. Furthermore, the Court considered that if the applicant was
wanted in Tunisia in connection with attacks on tourists, this was a
criminal matter with no implications of political persecution. The
Court also noted that at the hearing the applicant had failed to
furnish any explanations or information showing that there was a
concrete danger for his life or physical integrity if he were sent back
to Tunisia.
It appears that the Administrative Court's decision was confirmed
on appeal by the Administrative Court of Appeal in Schleswig-Holstein
on 4 November 1994.
The applicant then lodged a constitutional complaint which was
rejected by a panel of three judges of the Federal Constitutional Court
on 29 December 1994.
PROCEEDINGS BEFORE THE COMMISSION
The applicant's request under Article 36 of the Rules of
Procedure was rejected by the Commission's President on 3 January 1995.
Subsequently his lawyer lodged the present application on behalf
of the applicant stating however that for some time already he had had
no contact with the applicant, and the applicant's whereabouts were
unknown to him.
COMPLAINTS
The applicant maintains that, if extradited to Tunisia, he risks
political persecution and invokes Article 3 of the Convention.
THE LAW
The applicant submits that the denial of political asylum and the
risk of being sent back to his home country Tunisia amount to a
violation of his human rights.
It is true that Article 3 (Art. 3) of the Convention forbids,
inter alia, inhuman or degrading treatment and the Commission has
consistently held that the expulsion or extradition of a person could,
in certain exceptional circumstances, infringe Article 3 (Art. 3) where
there is serious reason to believe that the deportee will be subjected
to treatment prohibited by the Article (Art. 3) in the receiving
country.
The expected ill-treatment must however attain a minimum level
of severity if it is to fall within the scope of Article 3 (Art. 3).
The assessment of this minimum depends on all the circumstances of the
case. Furthermore, the existence of the risk of ill-treatment must be
assessed primarily with reference to those facts known to the
Contracting State at the time of the decision denying a foreigner a
residence permit or asylum and/or threatening a person with expulsion
(cf. Eur. Court H.R., Vilvarajah and others, judgment of
30 October 1991, Series A no. 215, para. 107).
The Commission notes that according to the findings of the
Administrative Court the applicant is wanted in Tunisia under suspicion
of attacks on tourists, i.e. a criminal matter without any implication
of political persecution. The Court furthermore found that the
applicant had submitted no proof showing that there was a concrete
danger for his life or physical integrity if he were expelled.
In the present proceedings the applicant has likewise failed to
submit relevant evidence in support of his submissions.
The Commission concludes that in these circumstances there is no
indication of a concrete risk of possible persecution which could
amount to a breach of Article 3 (Art. 3) of the Convention (cf. Eur.
Court H.R., Vilvarajah and others, as cited above).
It follows that the complaint under Article 3 (Art. 3) of the
Convention has to be rejected in accordance with Article 27 para. 2
(Art. 27-2) of the Convention as being manifestly ill-founded.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
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