AS TO THE ADMISSIBILITY OF
Application No. 24131/94
by Mahmood AHMAD, Mohammad KHAN,
Afzal Ahmad RAZA, Abdul REHMANN
and Mirza Amjad HUSSAIN
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 15 October 1993
by Mahmood AHMAD, Mohammad KHAN, Afzal Ahmad RAZA, Abdul REHMANN and
Mirza Amjad HUSSAIN against Germany and registered on 11 May 1994 under
file No. 24131/94;
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
All applicants are Pakistan citizens who came to Germany
requesting political asylum which was granted by the competent
authority but, on appeal, was eventually denied. The relevant
documents have been produced on 26 July 1994 only in respect of the
case of the first applicant, Mahmood Ahmad. This applicant was born
in 1960, and is living in Böblingen. He is represented, like the other
applicants, by Mr. O. Seitter, a lawyer practising in Stuttgart.
It follows from his statements and the documents submitted that
the first applicant arrived in Germany on 8 May 1990 and requested
political asylum on 23 July 1990.
On 12 October 1990 the Federal Office for the recognition of
foreign refugees (Bundesamt für die Anerkennung ausländischer
Flüchtlinge) granted the first applicant asylum on the ground that as
a member of the religious Ahmadi community he was subject to political
persecution in his home country.
The Federal Agent for asylum matters (Bundesbeauftragte für
Asylangelegenheiten) brought an action with a view to having this
decision set aside. The action was dismissed by the Stuttgart
Administrative Court (Verwaltungsgericht) on 14 January 1992.
The Court found that for many years tensions had existed in
Pakistan between orthodox Muslims (Saneids) and the Ahmadi community.
Since 1974 the state had continuously introduced legislative amendments
to the disadvantage of the Ahmadi Muslim movement under the pressure
of the militant orthodox Muslims. On 26 April 1984
President Zia-ul-Haaq issued the "Anti-Islamic-Activities of the
Quadiani-Group, Lahori-Group and Ahmadis (Prohibition and Punishment)
Ordinance 1984". The Ahmadis were declared to be non-Muslims. The
Pakistan penal code (PPC) was amended to the effect that in practice
the expression by Ahmadis of their religious beliefs under certain
conditions could be considered to be blasphemy, punishable by the death
sentence or by life-long imprisonment plus a fine.
In 1990 the Federal Shariat Court of Pakistan decided that
lifelong imprisonment in severe cases of blasphemy was unconstitutional
and should be replaced by the death penalty only. In 1991 the Pakistan
Federal Government decided to amend the penal code accordingly.
However, parliament did not adopt the proposed amendment.
The Administrative Court considered that the new legislative
provisions of 1984 were not an empty threat but affected every
practising Ahmadi to the very core of his religious rights. Every
Ahmadi had, in view of the new legislation, reason to fear that in
future he risked up to three years' imprisonment simply for practising
his own religion. There was even a danger that the normal practice of
the religion might be interpreted as constituting blasphemy, punishable
by the death sentence. However, the application of the death penalty
has not occurred so far.
The court concluded that in these circumstances the first
applicant could not be expected to return to his home country.
An appeal was lodged by the Federal Agent for asylum matters
against this judgment with the Baden-Württemberg Administrative Court
of Appeal. On 4 December 1992 this court decided against the first
applicant. It noted that the first applicant had left his country as
a free man and not as a victim of political persecution. It noted that
until 1990 when the applicant left Pakistan there had only been a few
cases in which persons had been arrested and convicted because of
religious activities. As approximately three to four million Ahmadis
lived in Pakistan it could not be found that there existed a systematic
persecution pattern. The court further considered that the situation
had not drastically changed since the applicant's departure from
Pakistan. So in particular there were only a few cases of persecution
of Ahmadis for expressing their religious beliefs in the private sphere
or within their community.
It was true that extremist Islamic forces gained influence in the
inner political struggle of Pakistan but nevertheless there was not
sufficient evidence to the effect that the applicant had to be
considered as being subject to political persecution.
On 19 May 1993, the Federal Administrative Court
(Bundesverwaltungsgericht) refused to admit the appeals on points of
law (Revision) of the first four applicants, and on 4 June 1993 with
regard to the fifth applicant.
The first applicant as well as the four other applicants in the
same situation lodged constitutional complaints which were however
rejected by a panel of three judges of the Federal Constitutional Court
(Bundesverfassungsgericht) on 20 September 1993. The panel considered
that the complaints were inadmissible as they did not raise any
important issues under constitutional law.
On 20 December 1993 the Federal Office for the recognition of
foreign refugees dismissed the first applicant's request to conduct new
asylum proceedings and ordered him to leave Germany within one week.
From the documents submitted it appears that new legislation from
1992 requiring an indication of a person's religion on his identity
card had been abolished in the meantime.
COMPLAINTS
The applicants do not invoke any specific Article of the
Convention. They submit that Ahmadis are systematically persecuted in
their country. The situation was worsened by the fact that from 1992
a new law requires that a person's religion is to be indicated on his
identity card. They further submit that under Pakistan Penal Law even
the habitual form by which Ahmadis greet each other, namely the formula
"Assallam-o-aleikom", may lead to a death penalty.
THE LAW
The applicants submit that the denial of political asylum and the
risk of being sent back to their home country Pakistan amount to a
violation of their human rights.
The Commission considers that the complaints have to be dealt
with under Article 3 (Art. 3) of the Convention, which reads as
follows:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
The Commission recalls that Contracting States have the right to
control the entry, residence and expulsion of aliens. The right to
political asylum is not protected in either the Convention or its
Protocols (Eur. Court H.R., Vilvarajah and Others judgment of
30 October 1991, Series A no. 215, p. 34, para. 102). However,
expulsion by a Contracting State of an asylum seeker may give rise to
an issue under Article 3 (Art. 3) of the Convention, and hence engage
the responsibility of that State under the Convention, where
substantial grounds have been shown for believing that the person
concerned would face a real risk of being subjected to torture or to
inhuman or degrading treatment or punishment in the country to which
he is to be expelled (ibid., para. 103). A mere possibility of ill-
treatment is not in itself sufficient (ibid., p.37, para. 111).
The Commission notes that according to the findings of the
Administrative Court of Appeal, the first applicant had left his
country as a free man in the absence of any kind of personal
persecution. Taking into account that approximately three to four
million Ahmadis lived in Pakistan the Court denied that there existed
a systematic persecution pattern. The Court concluded that there was
not sufficient evidence to the effect that the first applicant was
subject to a risk of political persecution.
The Commission finds that substantial grounds have not been
established for believing that the applicants would be exposed to a
real risk of being subjected to treatment contrary to Article 3
(Art. 3) on their return to Pakistan.
It follows that the application must be rejected as being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
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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