Bilasi-Ashri v. Austria (dec.)

Avrupa İnsan Hakları Mahkemesi

Karar Metni

Information Note on the Court’s case-law 47

November 2002

Bilasi-Ashri v. Austria (dec.) - 3314/02

Decision 26.11.2002 [Section II]

Article 3

Extradition

Staying of extradition because of refusal of authorities of requesting State to accept conditions stipulated: struck out

The applicant is an Egyptian national. In the 1980s, he was an active member of a succession of Islamic fundamentalist groups. He was arrested on a number of occasions over the years because of his activities and detained for periods ranging from several days to a month. He was ill-treated on some of these occasions. In 1991, he obtained a passport and moved to Saudi Arabia for eight months before returning. By 1994 he was no longer politically active, but when Egyptian police began making mass arrests that year he went into hiding and then left the country. He went first to Albania to stay with his sister and was joined there by his wife and son. He arrived in Austria in 1995 and claimed asylum. He was interviewed by police. Later that day he submitted supplementary information about his name appearing in the Egyptian press. His application was dismissed. The authorities considered that although he might have been persecuted in the 1980s, the fact that he had been permitted to leave the country in 1991 and his lower political profile since then suggested that the threat of persecution had receded; moreover, he could have sought asylum in either Albania or Slovenia. He appealed against the refusal, arguing that he had not been allowed to present his case fully, in particular evidence about the renewed threat of persecution in Egypt. The appeal was dismissed. The applicant pursued his claim through the courts until, in March 1998, the Administrative Court transferred the case to the newly-established Independent Asylum Panel, before which proceedings are still pending. In the meantime, criminal proceedings had been instituted against the applicant in Egypt. In December 1995 he was convicted in absentia of serious criminal offences and sentenced to 15 years' imprisonment and hard labour. On the basis of this conviction, the Egyptian authorities requested the applicant's extradition in July 1998. The request was eventually granted in November 2001 by the Vienna Court of Appeal, which took the view that there was no real risk of ill-treatment of the applicant and considered that his claim that he had been tortured in the past lacked plausibility. The court stipulated several conditions, including the annulment of the 1995 conviction and the re-trial of the applicant before the ordinary courts, respect for the applicant's safety and an undertaking not to extradite him to a third country. The authorities approved the applicant's extradition the same day, adding a condition that, in the case of acquittal, the applicant would be permitted to leave Egypt within 45 days. The Egyptian authorities were formally notified of the extradition order in January 2002. In March, the UNHCR indicated to the Austrian authorities that it considered that the applicant had a well-founded fear of persecution and should be granted refugee status. It added that the applicant's case should be dealt with by the relevant specialised body, i.e. the Independent Asylum Panel. In August 2002, the Ministry of Justice stated that the Egyptian authorities did not accept the conditions laid down in the extradition order. The applicant was released that same day.

Article 37 § 1 (b) – The Court did not accept the argument that, since the extradition order of November 2001 was still in force, the applicant was still at risk of being returned to Egypt. The applicant had failed to substantiate his concern that the Austrian authorities would disregard the conditions stipulated by the Vienna Court of Appeal. The matter giving rise to the application had therefore been resolved within the meaning of Article 37 § 1 (b).

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