AS TO THE ADMISSIBILITY OF
Application No. 36717/97
by Bahawal BAKHISH
against Germany
The European Commission of Human Rights sitting in private on
31 October 1997, the following members being present:
Mr S. TRECHSEL, President
Mrs G.H. THUNE
Mrs J. LIDDY
MM E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
C.L. ROZAKIS
L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
Mrs M. HION
MM R. NICOLINI
A. ARABADJIEV
Mr M. de SALVIA, Secretary to the Commission
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 April 1997 by
Bahawal BAKHISH against Germany and registered on 25 June 1997 under
file No. 36717/97;
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 Pakistani citizen, born in 1947 and residing
in Hamburg.
In the proceedings before the Commission he is represented by
Mr Alexander Munz, a lawyer practising in Hamburg.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
On 5 August 1990 the applicant reached the Federal Republic of
Germany via Dubai and London and applied for political asylum.
When interviewed on 22 March 1993 before the Federal Office for
Refugees (Bundesamt für die Anerkennung ausländischer Flüchtlinge), the
applicant stated that he belonged to the Ahmadiyya Muslim community in
Pakistan. Although he had encountered no particular problems with the
Pakistani authorities, he had left his country because, on account of
his religion, his clients had stopped buying the goods manufactured in
his factory.
By a decision of 22 November 1993 the Federal Office for Refugees
refused the applicant's request for asylum and informed him that he
would be expelled unless he left Germany within a month following this
decision. The Federal Office found that members of the Ahmadiyya
community were not subjected to group persecution in Pakistan and that
the applicant had not been persecuted when he had left his country.
The Federal Office concluded that the applicant had not demonstrated
that there was a sufficiently high degree of likelihood of his
persecution if he were to return to his country.
On 7 December 1993 the applicant lodged an appeal against this
decision.
At the hearing of 17 December 1996 before the Hamburg
Administrative Court (Verwaltungsgericht) the applicant stated that it
would be unsafe for him to return to Pakistan. As a member of the
Ahmadiyya Muslim community he had been threatened with death by
orthodox Muslims. According to him, the Government of Pakistan
tolerated, if not approved, the persecution of Ahmadi Muslims.
By a judgment of the same date the Hamburg Administrative Court
dismissed the appeal after having carefully considered all the
available information and evidence concerning the present situation of
Ahmadis in Pakistan in general and the applicant's personal situation
in particular.
The court pointed out that the Ahmadis regarded themselves as
Muslims and observed many Islamic practices. Their movement was founded
in 1889 by Mirza Ghulam Ahmed who was considered by the members of the
community as the promised Messiah and whose advent had been predicted
by the Holy Prophet of Islam. Since the Ahmadiyya community, consisting
in Pakistan of about four million members, denied the finality of the
Prophet Mohammed, it aroused opposition on the part of orthodox
Muslims.
In 1974 a constitutional amendment declared the Ahmadis a
non-Muslim minority. In 1984, Ordinance XX added Sections 298 B
and 298 C to the Pakistan Penal Code, expressly referring to the
Ahmadis and forbidding them to profess to be Muslims and to use Muslim
practices in their worship or in the propagation of their faith, any
offence being punishable with up to three years' imprisonment and a
fine. In 1986, the Criminal Law Amendment Act inserted the blasphemy
law in Section 295 C of the Penal Code. Under this amendment, any
person guilty of direct or indirect blasphemy against the name of the
prophet Mohammed was liable to life imprisonment, or even to the death
penalty, and to a fine (blasphemy law).
The court noted that Ahmadis were reported to be prosecuted under
these provisions namely for saying daily prayers, writing the kalima
(Article of Faith, God is One and Mohammed is His Messenger) on their
house, shop, and place of worship, calling to prayer (Azan), displaying
verses of the Koran on rings, badges, receipts and calendars, preaching
Muslim epithets and verses of the Koran and using the Islamic terms of
greeting "assalam-o-aleikum" with orthodox Muslims.
The Administrative Court admitted that as a member of the
Ahmadiyya community the applicant was individually affected by the
above provisions. However, the court considered that the applicant did
not incur the risk to be in conflict with these provisions and to be
arrested or sentenced to imprisonment on account of his religion.
According to the court, the provisions of the Pakistan Criminal Code
did not make the religious belief of Ahmadi Muslims as such a
punishable offence. Cases of prosecution against the Ahmadis arose
mainly from the public exercise of religious practices. The court
considered that the religious restrictions imposed on the applicant in
Pakistan were compatible with the human dignity and did not amount to
persecution relevant to the right of asylum for the purposes of Article
16 of the Basic Law (Grundgesetz).
The Administrative Court further observed that the applicant had
not left his country because he was subjected to persecution by other
private persons engaging the responsibility of the Government of
Pakistan. Single anti-Ahmadi events occurred solely in rural areas of
the Province of Punjab and concerned mainly prominent members of the
Ahmadiyya movement.
The Administrative Court finally considered that the applicant's
declarations made at the hearing of 17 December 1996 were in contrast
with his first statements before the Federal Office and did not appear
credible. Accordingly, the court did not believe that the applicant had
been threatened by orthodox Muslims before leaving his country.
The Administrative Court concluded that the Ahmadis were not a
persecuted group and that the applicant had not established a real and
substantial fear of persecution in Pakistan.
On 30 January 1997 the applicant lodged a constitutional appeal
against this judgment.
On 3 March 1997 a panel of three judges of the Federal
Constitutional Court (Bundesverfassungsgericht) declined to accept the
constitutional appeal for a decision.
COMPLAINTS
1. The applicant complains that he and the members of his family
would be subjected to treatment in breach of Article 3 of the
Convention on their return to Pakistan. He contends that, while in
Pakistan, he risked any day to be arrested or even sentenced to death
by reason of his religious belief or to be a victim of violence and
harassment, namely by the Khatame Nabuwwat organisation dedicated
specifically to the persecution of Ahmadi Muslims in Pakistan.
According to the applicant, the Government of Pakistan encourages the
activities of this organisation by allowing them to murder Ahmadis with
impunity and accepting charges brought by this organisation against
Ahmadi Muslims under the provisions of the Pakistan Penal Code
currently in force. He compares this situation with that of the Jewish
people during the Nazi regime.
2. The applicant also complains that under the relevant provisions
of the Pakistan Penal Code he and the members of his family, if
returned to Pakistan, would be exposed to arbitrary arrest and
detention, contrary to Article 5 of the Convention.
The applicant submits furthermore that the kinds of acts that
would fall within an offence under the provisions of the Pakistan Penal
Code were not indicated with sufficient clarity and infringe Article
7 of the Convention. The applicant refers in particular to Section 295
C of the Pakistan Penal Code, according to which any person who defiles
indirectly the name of the "Holy Prophet (peace be upon him)", shall
be punished with death or life imprisonment. The applicant argues that
this offence is so far-reaching and imprecise that it might be applied
almost without limit.
The applicant next complains that he and the members of his
family, if returned to Pakistan, would be exposed to arbitrary action
by the Pakistani authorities. In this connection he alleges a breach
of the right to respect for their private life and their right to
freedom of religion within the meaning of Articles 8 and 9 of the
Convention.
The applicant finally invokes Article 14 of the Convention which
guarantees the enjoyment of the rights and freedoms protected by the
Convention without discrimination on account of the national origin.
THE LAW
1. The applicant complains that, if returned to Pakistan, he will
be prosecuted and possibly executed for his religious beliefs. He
alleges that he had been threatened with death before leaving his
country on account of his religious beliefs. He contends that his
deportation to Pakistan would constitute a violation of Article 3
(Art. 3) of the Convention, which states:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
The Commission recalls that Contracting States have the right,
as a matter of well-established international law and subject to their
obligations under international treaties including the Convention, to
control the entry, residence and expulsion of aliens. Moreover, it
must be noted that the right to political asylum is not contained in
either the Convention or its Protocols (see Eur. Court HR, Vilvarajah
and others v. the United-Kingdom 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), and hence engage the responsibility of the State under the
Convention, where substantial grounds have been shown for believing
that the person in question, if expelled, would face a real risk of
being subjected to treatment contrary to Article 3 (Art. 3) in the
receiving country. In these circumstances, Article 3 (Art. 3) implies
the obligation not to expel the person in question to that country (see
Eur. Court HR, Soering v. the United Kingdom judgment of 7 July 1989,
Series A no. 161, p. 35, paras. 90-91; Cruz Varas and others v. Sweden
judgment of 20 March 1991, Series A no. 201, p. 28, paras. 69-70; the
above-mentioned Vilvarajah and others judgment, p. 34, para. 103 and
Chahal v. the United Kingdom judgment of 15 November 1996, Reports
1996-V, No. 22, paras. 73-74).
The Commission further recalls that a treatment has to reach a
certain level of severity before it can be considered to be contrary
to Article 3 (Art. 3) of the Convention (see the above-mentioned Cruz
Varas and others v. Sweden judgment, p. 31, para. 83) and the mere
possibility of ill-treatment in a country is in itself insufficient to
give rise to a breach of Article 3 (Art. 3) of the Convention (see Eur.
Court HR, the above-mentioned Vilvarajah and others judgment of 30
October 1991, Series A no 215, p. 37, para. 111).
The Commission has examined the circumstances of the present case
as they have been submitted by the applicant. The Commission notes that
the Hamburg Administrative Court considered the applicant's allegations
concerning a risk of treatment contrary to Article 3 (Art. 3) of the
Convention as unsubstantiated and in part as being contradictory and
not credible. The Commission further notes that the applicant
criticises the findings of the Hamburg Administrative Court in respect
of the general situation of the Ahmadiyya community in Pakistan
without, however, providing any substantiation of his fears of facing
a real risk of ill-treatment upon his return to his country.
The Commission thus concludes, on the evidence before it, that
the situation of which the applicant complains is not such as to raise
an issue under Article 3 (Art. 3) of the Convention.
This part of the application is, therefore, manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant also complains under Articles 5, 7, 8 and 9
(Art. 5, 7, 8, 9) of the Convention, that he and the members of his
family, if expelled to Pakistan, risk to be prosecuted under Sections
298 B, 298 C and 295 C of the Pakistan Penal Code and to be deprived
of the right to liberty and security of person, of their right to
respect to their private and family life and of their right to freedom
of religion. Finally, the applicant alleges a discriminatory difference
in treatment in relation to the rights guaranteed by the Convention on
the grounds of his nationality, in breach of Article 14 (Art. 14) of
the Convention.
However, insofar as the complaints can be regarded as raising the
responsibility of the German Government, the Commission finds that they
are unsubstantiated and do not disclose any appearance of a direct
involvement of the German Government in a violation of the rights and
freedoms set out in the Convention and in particular in the above
Articles.
It follows that this part of the application is also 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.
M. de SALVIA S. TRECHSEL
Secretary President
to the Commission of the Commission
Full & Egal Universal Law Academy