EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 25964/94
Sharif Hussein Ahmed
against
Austria
REPORT OF THE COMMISSION
(adopted on 5 July 1995)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-16) . . . . . . . . . . . . . . . . . . . . . . . . 1
A. The application
(paras. 2-4) . . . . . . . . . . . . . . . . . . . . . . 1
B. The proceedings
(paras. 5-11). . . . . . . . . . . . . . . . . . . . . . 1
C. The present Report
(paras. 12-16) . . . . . . . . . . . . . . . . . . . . . 2
II. ESTABLISHMENT OF THE FACTS
(paras. 17-54). . . . . . . . . . . . . . . . . . . . . . . . 3
A. The particular circumstances of the case
(paras. 17-38) . . . . . . . . . . . . . . . . . . . . . 3
B. The evidence before the Commission
(paras. 39-42). . . . . . . . . . . . . . . . . . . . . .6
C. Relevant law
(paras. 43-54) . . . . . . . . . . . . . . . . . . . . . 7
III. OPINION OF THE COMMISSION
(paras. 55-71). . . . . . . . . . . . . . . . . . . . . . . . 9
A. Complaint declared admissible
(para. 55) . . . . . . . . . . . . . . . . . . . . . . . 9
B. Point at issue
(para. 56) . . . . . . . . . . . . . . . . . . . . . . . 9
C. Article 3 of the Convention
(paras. 57-70) . . . . . . . . . . . . . . . . . . . . . 9
CONCLUSION
(para. 71) . . . . . . . . . . . . . . . . . . . . . . .11
APPENDIX I : DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION. . . . . . . . . . .12
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicant is a citizen of Somalia, born in 1963 and currently
resident in Graz. He was represented before the Commission by
Mr. W. Vacarescu, a lawyer practising in Graz.
3. The application is directed against Austria. The respondent
Government were represented by their Agent, Ambassador Mr. F. Cede,
Head of the International Law Department at the Federal Ministry of
Foreign Affairs.
4. The case concerns the applicant's complaint that his expulsion
to Somalia would expose him to a serious risk of being arrested,
tortured or killed. The applicant invokes Article 3 of the Convention.
B. The proceedings
5. The application was introduced on 13 December 1994 and registered
on 15 December 1994.
6. On 15 December 1994 the President of the Commission decided, in
accordance with Rule 36 of the Commission's Rules of Procedure, to
indicate to the Government of Austria that it was desirable in the
interest of the parties and the proper conduct of the proceedings not
to expel the applicant to Somalia until the Commission had an
opportunity to examine the application in the light of the parties'
submissions. On 20 January, 2 March, 12 April and 25 May 1995, the
Commission decided to prolong the application of Rule 36.
7. Also on 15 December 1994 the President of the Commission decided,
pursuant to Rule 34 para. 3 and Rule 48 para. 2 (b) of its Rules of
Procedure, to give notice of the application to the respondent
Government and to invite the parties to submit written observations on
its admissibility and merits.
8. The Government's observations were submitted on 3 January 1995.
The applicant replied on 1 February 1995 after an extension of the
time-limit.
9. On 2 March 1995 the Commission declared the application
admissible and decided to invite the Government to submit further
observations on the merits of the application.
10. The text of the Commission's decision on admissibility was sent
to the parties on 7 March 1995 and they were invited to submit further
observations on the merits. The applicant submitted observations on
14 April 1995. The Government submitted observations on 2 May 1995.
Further information was submitted by the Government on 5 May 1995 and
by the applicant on 23 and 24 May 1995.
11. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, also placed
itself at the disposal of the parties with a view to securing a
friendly settlement. In the light of the parties' reaction, the
Commission now finds that there is no basis on which such a settlement
can be effected.
C. The present Report
12. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes, the following members being present:
MM. C.A. NØRGAARD, President
H. DANELIUS
C.L. ROZAKIS
E. BUSUTTIL
G. JÖRUNDSSON
S. TRECHSEL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
D. SVÁBY
G. RESS
A. PERENIC
C. BlRSAN
13. The text of this Report was adopted on 5 July 1995 by the
Commission and is now transmitted to the Committee of Ministers of the
Council of Europe, in accordance with Article 31 para. 2 of the
Convention.
14. The purpose of the Report, pursuant to Article 31 of the
Convention, is:
(i) to establish the facts, and
(ii) to state an opinion as to whether the facts found disclose
a breach by the State concerned of its obligations under
the Convention.
15. The Commission's decision on the admissibility of the application
is attached hereto as Appendix I.
16. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. The particular circumstances of the case
a. The asylum proceedings
17. On 30 October 1990 the applicant came to Austria.
18. On 4 November 1990 the applicant applied for asylum. On
27 November 1990 he was heard by the Lower Austria Public Security
Authority (Sicherheitsdirektion). He submitted in particular that his
uncle had been an active member of the United Somali Congress (USC).
His father and his brother, who had not been members of the USC, but
had supported his uncle's activities, had been executed in May 1990.
Since then, he himself and his whole family were suspected of being
members of the USC and of having participated in rebellious activities.
His car had been confiscated and he had been beaten and injured. He had
left Somalia for fear of being arrested and executed.
19. On 19 April 1991 the Styria Public Security Authority dismissed
the applicant's request. It found that the applicant had failed to show
that he was persecuted in his home country.
20. On 30 July 1991 the Graz District Court (Bezirksgericht)
convicted the applicant of damage to property (Sachbeschädigung) and
sentenced him to three weeks' imprisonment, suspended on probation.
21. On 15 May 1992 the Federal Ministry for the Interior (Bundes-
ministerium für Inneres), on the applicant's appeal, granted him
asylum, referring to the relevant legislation. The Ministry noted in
particular his alleged activities for an opposition party and the
notorious situation in his country of origin. It found that the
credibility of the applicant's submissions could not be denied and that
there were reasonable grounds for believing that he would be persecuted
in case of his return to Somalia. Therefore, he had the status of a
refugee and was entitled to reside in Austria.
22. On 25 August 1993 the Graz Regional Court (Landesgericht)
convicted the applicant of attempted robbery and sentenced him to two
and a half years' imprisonment. The Court found that he had, on
30 March 1993, together with an accomplice hit a pedestrian in the face
and had attempted to take the wallet from his pocket. The sentence
became final on 7 March 1994.
23. On 15 July 1994 the Graz Federal Office for Asylum
(Bundesasylamt), referring to S. 5 para. 1 subpara. 3 of the Asylum Act
(Asylgesetz), withdrew the applicant's right to asylum because of his
conviction.
24. On 12 September 1994 the Ministry for the Interior dismissed the
applicant's appeal. The Ministry noted the applicant's submission that
he would be persecuted upon his return on the ground that he belonged
to General Aideed's clan. The Ministry referred to S. 5 para. 1
subpara. 3 of the Asylum Act in connection with Article 33 para. 2 of
the Geneva Convention relating to the Status of Refugees (Refugee
Convention), and stated that the right to asylum may be withdrawn if
a refugee is convicted, by a final sentence, of a particularly serious
crime and is, therefore, a danger to the community in the country of
asylum. It followed from S. 37 para. 4 of the Austrian Aliens Act
(Fremdengesetz), that the Austrian legislator considered any crime
punishable with more than five years' imprisonment as a particularly
serious crime within the meaning of Article 33 para. 2 of the Refugee
Convention. The applicant had been convicted of attempted robbery,
which was punishable with one to ten years' imprisonment, and the
sentence had become final. Thus, the conditions for withdrawing his
right to asylum were met.
25. On 2 February 1995 the Administrative Court (Verwaltungsgerichts-
hof), on the applicant's complaint, quashed the decision by the
Ministry for the Interior of 12 September 1994. It confirmed the
Ministry's view that the term "particularly serious crime", which is
not defined in Article 33 para. 2 of the Refugee Convention, was to be
read in connection with S. 37 para. 4 of the Aliens Act as referring
to a crime punishable with more than five years' imprisonment. The
crime of which the applicant had been convicted was punishable with one
to ten years' imprisonment. However, it did not follow automatically
from such a conviction that the person concerned was a danger to the
community within the meaning of Article 33 para. 2 of the Refugee
Convention. The purpose of this provision was to weigh the interest of
the receiving state in protecting the community against the refugee's
interest in being protected against a danger to his life or security.
Therefore, an assessment of the particular case had to be made, taking
into account, inter alia, the circumstances of the crime committed by
the refugee and his conduct since the commission of the crime. In the
proceedings before the Administrative Court, the applicant was
represented by Mr. Vacarescu.
26. On 10 April 1995 the Ministry for the Interior gave a new
decision, finding that the conditions laid down in S. 5 para. 1 (3) of
the Asylum Act for withdrawing the right to asylum were met in the
applicant's case. The Ministry, referring to the Administrative Court's
decision, noted in particular that the applicant had been convicted for
a particularly serious crime within the meaning of Article 33 para. 2
of the Refugee Convention. Further, he had, in 1991, been convicted of
damage to property and been sentenced to three weeks' imprisonment,
suspended on probation. In March 1992 he had been ordered to pay a fine
of AS 1,000 for unruly behaviour (ungestümes Benehmen) at a police
station. In December 1992 a criminal information on the suspicion of
having caused damage to property had been filed against him. These
incidents, though each one of them was rather minor, showed in their
entirety that he had a tendency to act aggressively. Thus, it could not
be excluded that he might commit further crimes in the future.
Consequently, he was a danger to the community.
b. The proceedings under the Aliens Act
27. On 14 November 1994 the Graz Federal Police Authority (Bundes-
polizeidirektion) imposed an unlimited residence ban (unbefristetes
Aufenthaltsverbot) based on S. 18 para. 1 and para. 2 subpara. 1 of the
Aliens Act (Fremdengesetz) on the applicant. It noted that the
applicant had been convicted of attempted robbery. Given the
seriousness of the crime, his residence would disturb public order and
security. Further, the Police Authority ordered that the applicant be
detained with a view to his expulsion (Schubhaft) as soon as his prison
sentence terminated.
28. On 22 November 1994 the Graz Federal Police Authority requested
a "laissez-passer" for the applicant from the Somalian embassy. In the
request it was stated explicitly that the "laissez-passer" was needed
for the purpose of returning the applicant to Somalia.
29. On 30 November 1994 the applicant informed the Graz Federal
Police Authority that he had nominated Mr. Vacarescu as his counsel.
He requested, in accordance with S. 54 of the Aliens Act, that a
declaratory decision be taken that his expulsion to Somalia would be
inadmissible as being contrary to Article 3 of the European Convention
on Human Rights, or for exposing him to persecution within the meaning
of the Geneva Convention relating to the Status of Refugees. He
referred in particular to the results of the 1992 asylum proceedings.
30. Also on 30 November 1994 the applicant lodged an appeal against
the residence ban of 14 November 1994.
31. On 10 December 1994 the Styria Public Security Authority
dismissed the applicant's appeal. However, it decided that the
residence ban should only be valid for ten years. The Public Security
Authority found that the issuing of the residence ban was in accordance
with S. 18 para. 1 and para. 2 subpara. 1 of the Aliens Act, given the
applicant's conviction for attempted robbery. It further noted that the
applicant, following the withdrawal of his right to asylum by decision
of 12 September 1994, did not have the right to reside in Austria any
more. The Public Security Authority also found that the interest in
issuing a residence ban outweighed the applicant's interest in staying
in Austria, as he had only spent four years in Austria and had not been
integrated. Furthermore, he had no family ties in Austria.
32. On 14 December 1994 the applicant, upon his conditional release
(bedingte Entlassung) from prison, was taken into detention at the Graz
Police Prison with a view to his expulsion.
33. On 23 January 1995 the Styria Independent Administrative Tribunal
(Unabhängiger Verwaltungssenat) found that the applicant's further
detention would be unlawful, as it was already obvious that his
expulsion could not take place within the two-months' time-limit
provided for in the Aliens Act. The Administrative Tribunal noted in
particular that the European Commission of Human Rights, on
20 January 1995, had decided to prolong the application of Rule 36 of
its Rules of Procedure until the end of its next session in the
beginning of March. As long as the interim measure was applied, the
applicant's expulsion would be contrary to S. 37 para. 6 of the Aliens
Act. Moreover, the Graz Federal Police Authority had failed to take a
decision under S. 54 of the Aliens Act without delay, concerning the
question whether the applicant's expulsion to Somalia would be
admissible. Finally, given the recent escalation of the situation in
Somalia, it was not even sure whether it would actually be possible to
carry out an expulsion to that country.
34. Following the decision of the Independent Administrative
Tribunal, the applicant was released.
35. On 26 April 1995 the Graz Federal Office for Asylum heard the
applicant in proceedings, introduced ex officio under S. 37 para. 5 of
the Aliens Act. The applicant submitted in particular that the
situation had deteriorated since his flight in 1990. He was a member
of the Hawiye clan, which at that time was persecuted by the
government. Like all big clans it was divided internally. When he had
fled, his clan was supporting General Aideed, but it had later broken
away from him and would now also be persecuted by his forces. His clan
lived north of Mogadishu in the interior of the country. At present
several clans were fighting in Mogadishu, mainly those of General
Aideed and Ali Mahdi Mohamed. It could not be said which one of them
had control of the airport.
36. On 27 April 1995 the Graz Federal Office for Asylum rendered a
decision under S. 37 para. 5 of the Aliens Act. It noted the
applicant's submissions in the 1994 proceedings relating to the
withdrawal of his right to asylum and his submissions of 26 April 1995.
The Federal Office for Asylum found that, even assuming that the
applicant risked to be persecuted by other clans upon his return to
Somalia, his expulsion was admissible under S. 37 para. 4 of the Aliens
Act. He had been convicted for a crime which was punishable with more
than five years' imprisonment as, on 7 March 1993, his conviction for
attempted robbery had become final. Further, he had, in 1991, been
convicted of damage to property and had been sentenced to three weeks'
imprisonment, suspended on probation. In December 1992 a criminal
information had been filed against him on the suspicion of having
caused damage to property. These proceedings had been discontinued.
Thus, he had committed further offences, which showed in their entirety
that he had a tendency to act aggressively and was, therefore, a danger
to the community. Subsequently, the applicant lodged an appeal with the
Federal Ministry for the Interior, claiming in particular that the
Federal Office for Asylum had failed to assess the current situation
in Somalia. These appeal proceedings are still pending.
37. On 4 May 1995 the Graz Federal Police Authority, acting upon the
applicant's request of 30 November 1994, gave a decision under S. 54
of the Aliens Act. It found that there were no substantial grounds for
believing that the applicant, upon return to Somalia, would be in
danger of being subjected to treatment contrary to S. 37 para. 1 of the
said Act. Referring to case-law of the Administrative Court, the
Federal Police Authority found that such a danger had to emanate from
the State. In Somalia however, a State authority did not exist any more
since the Government of the former President Siad Barré had been
overthrown. As regards S. 37 para. 2, the applicant had failed to
submit that his life or security would be endangered on any of the
grounds listed. Moreover, the Graz Federal Office for Asylum had found
that the applicant's expulsion was admissible.
38. On 22 May 1995 the applicant lodged an appeal with the Styria
Public Security Authority. He submitted in particular that a danger of
inhuman treatment under S. 37 para. 1 of the Aliens Act or under
Article 3 of the Convention, respectively, did not necessarily have to
emanate from the State. Moreover, the Federal Police Authority had
failed to acknowledge that the applicant had been granted asylum and
that therefore substantial grounds had been shown for believing that
he would be exposed to a danger within the meaning of S. 37 para. 2 if
returned to Somalia. The Federal Police Authority had not established
any facts to the contrary. These appeal proceedings are also still
pending.
B. The evidence before the Commission
39. The Commission firstly had regard to the evidence obtained at the
domestic level.
40. In addition, the Commission requested the United Nations High
Commissioner for Refugees (UNHCR) for recent information on the
situation in Somalia. The most relevant parts of UNHCR's "Background
Paper on Somali Refugees and Asylum seekers", dated October 1994, may
be summarised as follows.
41. In January 1991 the Government of the former President Siad Barré
was overthrown. Since then a civil war, which is marked by clan
allegiances and conflicts, is dominating the country. By the end of
1991 it was evident that no central Government existed any more. In
December 1992 U.S. troops arrived in order to restore order. In May
1993 the United Nations mission for Somalia replaced them. It soon got
caught up in fighting with faction leader Mohamed Farah Aideed. In
March 1994 a cease-fire agreement was concluded in Nairobi between the
fifteen main fighting factions, three being assembled in the Somali
National Alliance (SNA), which is dominated by General Aideed's faction
of the divided USC, the other twelve belonging to the Somalia Salvation
Alliance (SSA) backing Ali Mahdi Mohamed. General Aideed's power base
is the Habar Gedir Hawiye clan, while Ali Mahdi Mohamed belongs to the
Abgal Hawiye clan. A peace conference which was scheduled for May 1994
was postponed to October 1994. As no progress towards peace was made
in the summer of 1994, the UN Security Council made first moves to
withdraw troops from Somalia. In October 1994 renewed fighting was
reported from Mogadishu.
42. Somali population is described as being ethnically homogeneous.
However, Somali people are divided into a number of clan families, the
six most important of which are the Dir, Darood, Isaaq, Hawiye, Digil
and Rahanweyn. Each of these families is divided into sub-clans and
lineage systems. Clan divisions, whereby identification with sub-clans
is even more important than with clans, are considered to play a role
similar to that of ethnic divisions in other African countries. The
whole clan organization is considered to be an unstable, fragile
system, characterised at all levels by shifting allegiances. Membership
of a particular clan appears to directly place a person at risk vis-a-
vis hostile militias based on other clans or sub-clans.
C. Relevant law
1. Asylum Act
43. S. 5 para. 1 subpara. 3 of the Asylum Act (Asylgesetz) provides
that a refugee loses the right to asylum, inter alia, if the conditions
set out in Article 33 para. 2 of the Geneva Convention relating to the
Status of Refugees (see below) are met.
2. Aliens Act
44. According to S. 18 para. 1 of the Aliens Act (Fremdengesetz), a
residence ban may be issued against an alien if there are reasonable
grounds for believing that his stay will disturb public order or
security (subpara. 1) or that it will be contrary to the public
interest, as provided for in Article 8 para. 2 of the European
Convention for the Protection of Human Rights and Fundamental Freedoms
(subpara. 2). Paragraph 2 of S. 18 illustrates cases in which
"reasonable grounds" within the meaning of para. 1 are given, e.g. if
an alien has been sentenced to more than three months' imprisonment by
an Austrian court, and this judgment has become legally effective
(subpara. 1).
45. S. 37 deals with cases where it is prohibited to expel an alien.
Paragraph 1 states that an alien may not be expelled to a State, if
there are firm reasons to believe that he would be in danger of being
subjected to inhuman treatment or punishment or to capital punishment
in that State.
46. S. 37 para. 2 refers to Article 33 (1) of the Geneva Convention
relating to the Status of Refugees (see below), and provides that an
alien may not be expelled to a State if there are firm reasons to
believe that in that State his life or his security would be endangered
on the grounds of his race, religion, nationality or adherence to a
social group or on the grounds of his political opinions.
47. S. 37 para. 4 refers to Article 33 para. 2 of the Geneva
Convention relating to the Status of Refugees (see below) and states
that the expulsion of an alien to a State, in which he would be
endangered within the meaning of paragraph 2, may only be carried out
if he is, on serious grounds, a threat to the security of the Republic
of Austria or if, after a conviction for a crime which is punishable
with more than five years' imprisonment, he presents a danger to the
community.
48. S. 37 para. 5 states that the asylum authority (in cases under
S. 5 para. 1 subpara. 3 of the Asylum Act), or (in other cases) the
Public Security Authority, have to take a decision as to whether the
conditions under the aforementioned paragraph 4 are met.
49. S. 37 para. 6 provides that an alien may not be expelled as long
as this would be contrary to an interim measure taken by the European
Commission of Human Rights or the European Court of Human Rights.
50. S. 54 para. 1 states that the Authority, at the alien's request,
has to render a declaratory decision on whether or not there are firm
reasons to believe that the alien, in a State indicated by him, is
endangered within the meaning of S. 37 para. 1 or 2.
51. S. 54 para. 2 provides that such a request may, inter alia, be
made during proceedings concerning the issue of a residence ban and
that the alien has to be informed in time of the possibility to make
the request.
52. According to S. 54 para. 3, the decision on an appeal against a
ruling that the expulsion to a particular State is admissible has to
be taken within a week.
53. S. 54 para. 4 states that an expulsion may not be carried out as
long as the decision relating to the request under S. 54 has not become
final.
3. Geneva Convention relating to the Status of Refugees
54. Article 33 of the Geneva Convention relating to the Status of
Refugees reads:
"1. No Contracting State shall expel or return a refugee in any
manner whatsoever to the frontiers of territories where his life
or freedom would be threatened on account of his race, religion,
nationality, membership of a particular social group or political
opinion.
2. The benefit of the present provision may not, however, be
claimed by a refugee whom there are reasonable grounds for
regarding as a danger to the security of the country in which he
is, or who, having been convicted by a final judgement of a
particularly serious crime, constitutes a danger to the community
of that country."
III. OPINION OF THE COMMISSION
A. Complaint declared admissible
55. The Commission has declared admissible the applicant's complaint
that his expulsion to Somalia would expose him to a real risk of
torture or inhuman or degrading treatment in that country.
B. Point at issue
56. Accordingly, the issue to be determined is whether the
applicant's expulsion to Somalia would be in violation of Article 3
(Art. 3) of the Convention.
C. Article 3 (Art. 3) of the Convention
57. The applicant invokes Article 3 (Art. 3) of the Convention which
provides as follows:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
58. The applicant submits that his return to Somalia would expose him
to a serious risk of being arrested, tortured or executed. In this
respect he particularly refers to the decision of the Austrian Ministry
for the Interior granting him asylum in 1992.
59. The Government consider that the application is unfounded. They
submit that it is not clear from the Convention organs' case-law that
an expulsion to a country in a state of civil war is to be regarded as
a violation of Article 3 (Art. 3) of the Convention. There are no
circumstances in the case which would militate against the applicant's
expulsion to Somalia.
60. The Commission recalls that Contracting States have the right,
as a matter of well-established international law and subject to their
treaty obligations including Article 3 (Art. 3), to control the entry,
residence and expulsion of aliens. However, expulsion by a Contracting
State of an asylum seeker may give rise to an issue under Article 3
(Art. 3), and hence engage the responsibility of that State under the
Convention, where substantial grounds have been shown for believing
that the person concerned faces 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 returned (Eur. Court H.R., Vilvarajah and
Others judgment of 30 October 1991, Series A no. 215, p. 34,
paras. 102-103).
61. The Commission, therefore, has to determine whether the applicant
has shown the existence of a real risk of being subjected to treatment
contrary to Article 3 (Art. 3) of the Convention upon his return to
Somalia.
62. In this context the Commission notes that the applicant was
granted asylum in Austria in 1992. The Ministry for the Interior, in
its decision of 15 May 1992, granting the applicant asylum, referred
in particular to the applicant's alleged activities for an opposition
party and the notorious situation in his country of origin. When
applying for asylum in November 1990, the applicant had submitted that
his uncle had been an active member of the USC and that his father and
brother, who had supported his activities had been executed in May
1990. Since then he and his whole family had been suspected of being
USC members and of having participated in rebellious activities. The
Ministry found that his submissions were credible and that there were
reasonable grounds for believing that he would be persecuted in case
of his return to Somalia.
63. On 15 July 1994 the Federal Office for Asylum withdrew the
applicant's right to asylum on the ground that he had been convicted
of attempted robbery, and sentenced to two and a half years'
imprisonment. On 12 September 1994 the Ministry for the Interior
confirmed this decision. In a further decision of 10 April 1995,
following appeal proceedings before the Administrative Court, the
Ministry for the Interior again found that the applicant's right to
asylum should be withdrawn. It considered in particular that the
applicant had committed a particularly serious crime within the meaning
of S. 5 para. 1 (3) of the Asylum Act. Further, referring to several
other incidents, it found that he had a tendency to act aggressively
and was, therefore, a danger to the community.
64. Subsequently, two sets of proceedings were conducted in order to
establish whether the applicant's expulsion to Somalia was admissible.
One set of proceedings was introduced ex officio by the Graz Federal
Office for Asylum in 1995 under S. 37 para. 5 of the Aliens Act. It
heard the applicant, who submitted inter alia that his clan, which had
supported General Aideed when he fled, had meanwhile broken away from
him and was, therefore, persecuted by his forces. However, the Federal
Office for Asylum, in its decision of 27 April 1995, found that, even
assuming that the applicant would be persecuted by other clans upon his
return to Somalia, his expulsion was admissible as he had been
convicted of criminal offences and was a danger to the community. It
adduced the same reasons as the Ministry for the Interior in its
decision to withdraw the applicant's right to asylum. The second set
of proceedings was started upon the applicant's request of
30 November 1994 under S. 54 of the Aliens Act. The applicant,
referring in particular to the result of the 1992 asylum proceedings,
submitted that his expulsion to Somalia would be contrary to Article 3
(Art. 3) of the Convention. The Graz Federal Police Authority, on
4 May 1995, found that the applicant's expulsion was admissible. It
considered in particular that only a danger of ill-treatment emanating
from the State could prohibit expulsion. However, in Somalia a State
authority did not exist any more. The applicant lodged appeals against
both decisions. The appeal proceedings are still pending.
65. The Commission attaches particular weight to the fact that the
applicant was granted asylum in May 1992. The Austrian Ministry for the
Interior referred in particular to the applicant's alleged activities
for the USC and the general situation in his country and found that he
would risk persecution in Somalia. In the asylum proceedings, the
Austrian authorities had to consider basically the same elements under
Austrian law as the Commission must consider under Article 3 (Art. 3).
Moreover, they heard the applicant and, thus had the benefit of a
personal impression.
66. Further, the Commission observes that the competent domestic
authorities, in their subsequent decisions relating to the withdrawal
of the applicant's right to asylum and to the question whether the
applicant's expulsion to Somalia was admissible, have not adduced any
arguments in order to establish that the situation had changed to an
extent that the applicant would no longer risk persecution, if returned
to Somalia. Nor have the Austrian Government made any submissions to
this effect in the proceedings before the Commission.
67. On the basis of the material before the Commission, there is no
indication that the situation has changed fundamentally since May 1992,
when the applicant was granted asylum. At that time, Somalia had
already been in a state of civil war for more than a year, following
the overthrow of the Government of President Siad Barré in
January 1991. This civil war, which is marked by clan allegiances and
conflicts, is still ongoing. It appears that the applicant's clan,
which originally supported the USC, one faction of which is led by
General Aideed, meanwhile broke away from the latter and would now have
to fear persecution from his forces. In this context, the Commission
also notes the UNHCR's assessment, according to which membership of a
particular clan directly places a person at risk vis-a-vis hostile
militias based on other clans or sub-clans.
68. The position of the Austrian authorities that there is no
substantial risk for the applicant since the State authority had ceased
to exist in Somalia cannot be accepted. It is sufficient that those who
hold substantial power within the State, even though they are not the
Government, threaten the life and security of the applicant. That is
clearly the situation in the present case, given the powerful position
of General Aideed.
69. In these circumstances, the Commission does not see any reasons
to question the assessment made by the Austrian authorities in the
asylum proceedings.
70. In conclusion the Commission finds that substantial grounds have
been shown for believing that the applicant faces a real risk of being
subjected to treatment contrary to Article 3 (Art. 3), if returned to
Somalia.
CONCLUSION
71. The Commission concludes, unanimously, that in the present case
the applicant's expulsion to Somalia would be in violation of Article 3
(Art. 3) of the Convention.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
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