AS TO THE ADMISSIBILITY OF
Application No. 20213/92
by I.B. and L.B.
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 7 September 1993, the following members being present:
MM. A. WEITZEL, President
C.L. ROZAKIS
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
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 27 April 1993 by
I.B. and L.B. against Germany and registered on 23 June 1992 under file
No. 20213/92;
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 facts of the case, as submitted by the applicants, may be
summarised as follows.
The applicants are a married couple, born in 1955 and 1962,
respectively. They are of Yugoslav origin and submit that they belong
to a group of Roma. When lodging their application, they were resident
in Bremerhaven. Before the Commission they are represented by Mr. E.
Heinsen, a lawyer practising in Hamburg.
In March 1988 the applicants entered the territory of the Federal
Republic of Germany. They applied for political asylum, and submitted
in particular that they risked persecution by a former fiancee of the
second applicant.
In December 1988 the Federal Office for Political Refugees
(Bundesamt für die Anerkennung ausländischer Flüchtlinge) dismissed
their requests for political asylum.
On 17 January 1989 Bremerhaven Municipality requested the
applicants to leave the territory of the Federal Republic of Germany
and ordered their expulsion. The applicants filed an appeal against
this decision with the Bremen Administrative Court (Verwaltungs-
gericht). In October 1989 the applicants withdrew their action
following an offer by the defendant Municipality of provisional
residence permits (Duldungen) for a period of three months.
On 30 March 1990 the Bremerhaven Municipality again requested the
applicants to leave the territory of the Federal Republic of Germany.
In April 1990 the applicants filed requests for political asylum
for a second time. They then argued inter alia that as members of the
group of Roma they risked persecution in Yugoslavia. The Bremerhaven
Municipality rejected these requests, considering that they were
irrelevant second requests (Folgeanträge).
On 25 April 1990 the Bremerhaven Municipality ordered the
applicants to leave the territory of the Federal Republic of Germany.
The applicants filed an appeal with the Bremen Administrative
Court and requested that the execution of the order of 25 April 1990
be suspended pending the court proceedings. Their request for a
suspension was dismissed on 27 June 1990. Their appeal (Beschwerde)
in this respect was dismissed by the Bremen Administrative Court of
Appeal (Oberverwaltungsgericht) on 20 July 1990. The applicants
withdrew their action in August 1990, and requested that, as an interim
measure (einstweilige Anordnung), the defendant Municipality be ordered
to grant them provisional residence permits. They withdrew this
request some days later.
On 11 October 1990 the applicants again filed a request with the
Bremen Administrative Court that, as an interim measure, the defendant
Municipality be ordered to grant them provisional residence permits.
In these and the following proceedings the applicants were represented
by Mr. Heinsen.
On 16 January 1991 the Bremen Administrative Court dismissed the
request. The Administrative Court found that the applicants had failed
to adduce prima facie evidence to show that they were entitled to
provisional residence permits.
The Court considered in particular that the decisions of 17
January 1989 and 25 April 1990 had become final, and that there no
indication of any change in the factual circumstances relevant for
these decisions. Furthermore, the defendant Municipality was not, for
legal reasons, hindered to expel the applicants. The applicants could
not rely on the Geneva Convention of Refugees on the ground that, after
having withdrawn their appeals against the refusal of political asylum,
they could no longer claim to be persecuted as members of a particular
ethnic or social group or for political reasons.
The Administrative Court, noting that the applicants had Yugoslav
passports, further considered that they were no stateless persons.
There was nothing to show that the Yugoslav State would not accept them
as its nationals. The applicants' submissions before the Court that
their Yugoslav passports were false, that they had left Yugoslavia in
1980 and since then lived in several European Countries were at
variance with their previous statements before the Federal Office for
Refugees, and, therefore, not credible.
The Administrative Court also observed that, in two other cases,
the Bremen Senator for the Interior (Senator für Inneres) had
exceptionally ordered the defendant Municipality to grant provisional
residence permits to two Yugoslav families belonging to the group of
Roma because of particular hardships. However, the Senator had later
stated that he did not intend to take similar decisions again. Under
these circumstances, the applicants could not claim that a positive
administrative practice be continued.
Finally, the Administrative Court stated that there were no
pressing humanitarian or other important public interests in permitting
the applicants' further stay in the Federal Republic of Germany.
On 4 July 1991 the Bremen Administrative Court of Appeal
dismissed the applicants' appeal.
The Administrative Court of Appeal noted that, upon their arrival
in the Federal Republic of Germany, the applicants had stated that they
were of Yugoslav nationality, and had indicated places of birth in
Yugoslavia. They had produced Yugoslav passports and submitted that
they had come from Yugoslavia. When questioned in serbo-croate
language at the Federal Office for Refugees, the first applicant had
stated that, after having attended school for nine years, he had done
his military service in the Yugoslav army. He had then worked as a
painter for a state enterprise for twelve years. He had come to
Germany because of his wife whose previous fiancé had been released
from prison in Yugoslavia. The second applicant had stated that she
had attended primary school for seven years and had always lived with
her mother in Naklo, Yugoslavia. A sister and three brothers were
living in Kosovo. Since the release of her previous fiancé from prison
after five years' imprisonment, she feared his revenge.
The Administrative Court of Appeal considered that its decision
had to be based upon the facts as recounted by the applicants in the
proceedings before the Federal Office for Refugees. The submissions
presented on their behalf in their appeal, namely that they were
stateless, that their places of birth were unknown, that they had been
wandering for more than eight years in different European countries,
was incredible. The changed version of facts corresponded to counsel's
strategy, pursued in similar cases, to play down any connections with
Yugoslavia and to present the applicants as factually stateless
persons.
On 15 October 1991 the Federal Constitutional Court (Bundes-
verfassungsgericht) refused to admit the applicants' constitutional
complaints (Verfassungsbeschwerden) on the ground that they offered no
prospects of success.
On 5 March 1992 the President of the Bremen Municipal Council
(Bürgerschaft) informed the applicants that on 27 February 1992 their
request of 14 August 1991 for provisional residence permits pending
their constitutional complaint proceedings had been dismissed. The
President referred to their obligation to leave the Federal Republic
of Germany following their unsuccessful asylum proceedings. There was
no possibility to allow the applicants' further stay in Germany.
Having regard to the civil war in Yugoslavia, no Croats were expelled
for the time being. However, the applicants were Yugoslav nationals
and had come from Macedonia. There were no indications that, upon
their return, they risked torture, capital punishment, or that there
was any risk for their life, health or liberty.
By letter of 11 December 1992, the applicants' representative
informed the Commission that he had obtained his mandate through an
association of Roma and Sinti in Germany with seat in Hamburg, and that
he did not have contact with the applicants. He also stated that so
far no expulsion had taken place because of the general situation in
former Yugoslavia.
COMPLAINTS
1. The applicants complain under Article 3 of the Convention about
their envisaged expulsion to former Yugoslavia. They submit in
particular that the first applicant risks being forced to join one of
the fighting groups. They also complain that their destination in
former Yugoslavia was unclear. They point out that they came from
Kosovo. Should they be sent to Macedonia, they risked having to live
in camps for Roma.
2. The applicants further complain under Article 6 para. 1 of the
Convention that, in the proceedings concerning provisional residence
permits, the German courts did not duly consider their new account of
the relevant facts.
THE LAW
1. The applicants complain that the German authorities refused to
grant them provisional residence permits. They submit that their
expulsion to Yugoslavia would amount to inhuman treatment contrary to
Article 3 (Art. 3) of the Convention.
The Commission has consistently held that the right of an alien
to reside in a particular country in not as such guaranteed by the
Convention. 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 faced a real risk of being subjected to torture or to inhuman
or degrading treatment or punishment in the country to which he was
returned (see Eur. Court H.R., Vilvarajah and Others judgment of 30
October 1991, Series A no. 215, p. 34, para. 103).
In the present case, the Commission finds that there is no
indication that the applicants were subjected to ill-treatment in
Yugoslavia prior to their departure. Upon their arrival in Germany,
the applicants indicated that they had left Yugoslavia for personal
reasons. They did not pursue their court actions regarding the refusal
of political asylum in 1988, or against the orders to leave Germany
dated 17 January 1989 and 25 April 1990. In the administrative court
proceedings instituted in October 1990, the applicants for the first
time retracted their earlier version and submitted that they were in
fact stateless and had been travelling for several years in different
European States before coming to Germany. This new account was not
found to be credible by the German courts.
The Commission considers that the applicants' submissions in the
course of the domestic proceedings do not disclose any risk of
ill-treatment upon their return to former Yugoslavia.
As regards their reference to the general situation in former
Yugoslavia, the Commission recalls that the mere possibility of
ill-treatment on account of the unsettled general situation in a
country is in itself insufficient to give rise to a breach of Article 3
(Art. 3) (see Eur. Court H.R., Vilvarajah and Others judgment, loc.
cit., p. 37, para. 111).
The Commission finds that the applicants failed to show that,
upon their return to former Yugoslavia, they would face any real risk
of being subjected to treatment contrary to Article 3 (Art. 3) of the
Convention.
The Commission also observes that, according to the statements
of their representative, the actual whereabouts of the applicants, who
were ordered to leave Germany, are not known. However, there is no
indication that they have left the country. Moreover, their expulsion
is not imminent.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicants complain under Article 6 para. 1 (Art. 6-1) of the
Convention about the alleged unfairness of the German court proceedings
concerning their requests to be granted provisional residence permits.
The Commission recalls that a decision as to whether an alien
should be allowed to stay in a country or be expelled does not involve
either the determination of the alien's civil rights and obligations
or of a criminal charge within the meaning of Article 6 para. 1
(Art. 6-1) (see No. 8118/77, Dec. 19.3.81, D.R. 25 p. 105).
It follows that this part of the application is incompatible
ratione materiae with the provisions of the Convention 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) (A. WEITZEL)
Full & Egal Universal Law Academy