AS TO THE ADMISSIBILITY OF
Application No. 22178/93
by Dilaver, Miradije, Gjuzela,
Ajhan, Sejhan and Erhan DAFEROFSKI
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 2 September 1994, 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
I. BÉKÉS
E. KONSTANTINOV
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 2 June 1993 by
Dilaver, Miradije, Gjuzela, Ajhan, Sejhan and Erhan DAFEROFSKI against
Germany and registered on 8 July 1993 under file No. 22178/93;
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, as they have been submitted by the applicants, may be
summarised as follows.
The applicants, a married couple - both born in 1957 - and their
four children, born between 1977 and 1979, are nationals of former
Yugoslavia and of Macedonian origin. They belong to the community of
Roma. Before the Commission, they are represented by Mr. R. Klever,
a lawyer practising in Hamburg.
On 22 May 1988 the applicants entered the territory of Germany.
On 6 February 1989 the Federal Office for Political Refugees
(Bundesamt für die Anerkennung ausländischer Flüchtlinge) dismissed
their request for political asylum. The Office noted in particular
that, when heard in January 1989, the applicants had indicated that
they did not have any employment in Yugoslavia and could not send their
children to school, and that they had suffered disadvantages as members
of the Roma community. However, they had not faced any problems with
the police or other public authorities. The Office concluded that the
applicants had not left their home country as political refugees, but
as emigrants in order to improve their living conditions. In this
respect, the Office had regard to information provided by the Foreign
Office and an opinion by the Institute for Eastern European Law at the
Cologne University according to which there was no open or publicly
furthered discrimination against members of the Roma community. The
applicants' appeals remained unsuccessful, and the proceedings were
terminated in 1990.
On 20 June 1991 the Federal Office for Political Refugees, having
again heard the applicants, dismissed their second request for
political asylum (Asylfolgeantrag) dated June 1990.
On 16 July 1991 the Head of the Lauenburg County Administration
(Landrat) requested the applicants to leave Germany and ordered their
deportation. The applicants' request for interim measures was
dismissed by the Schleswig Holstein Administrative Court (Verwaltungs-
gericht) on 8 August 1991.
On 4 November 1991 the Schleswig Holstein Administrative Court
dismissed the applicants' claim to be recognised as political refugees
and their action to have the decision of 16 July 1991 set aside. The
Administrative Court found that the applicants' failed to show that
they were persecuted for political reasons. The Court noted in
particular that the applicants, in their reasons regarding their second
request for asylum, had submitted that they had joined an organisation
in Germany fighting for residence rights for members of the Roma
community, that they had participated in meetings of this organisation
and also publicly criticised the situation in Yugoslavia, and that
members of the Yugoslav Consulate had taken photographs on the occasion
of demonstrations. The Court found that these submissions, even
assuming that they were in themselves conclusive, were at variance with
their submissions upon their second hearing before the Federal Office
for Political Refugees.
On 2 March 1993 the Schleswig Holstein Administrative Court
dismissed the applicants' request for interim measures to stop their
deportation and for provisional residence permits (Duldungen).
On 6 May 1993 the Schleswig Holstein Administrative Court of
Appeal (Oberverwaltungsgericht) dismissed the applicants' appeal
(Beschwerde). The Court noted in particular that the applicants had not
provided any information which had not already been considered in the
Court's decision of 8 August 1991. As regards the applicants' further
submissions, the Court observed that the first applicant's illness in
March/April 1993 did no longer hinder his travelling.
Appeal proceedings are apparently still pending.
COMPLAINTS
1. The applicants complain under Article 3 of the Convention about
the refusal of political asylum and the expulsion and deportation order
issued against them. They submit that, upon their return to Macedonia,
they risk persecution as members of the Roma community.
2. The applicants further complain under Article 8 of the Convention
that, upon their deportation to Macedonia, they would not be in a
position to find accommodation or to send the children to school.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 2 June 1993. On 8 June 1993
the President of the Commission decided not to apply Rule 36 of the
Commission's Rules of Procedure. The application was registered on
8 July 1993.
THE LAW
1. The applicants complain about the refusal of political asylum and
the expulsion and deportation order, respectively. They invoke
Article 3 (Art. 3) of the Convention which states, so far as relevant:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
The Commission recalls that no right of an alien to enter or to
reside in a particular country is as such guaranteed by the Convention.
However, the expulsion by a Contracting State of a foreigner 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, assuming exhaustion of
domestic remedies within the meaning of Article 26 (Art. 26) of the
Convention, notes that the German authorities, having regard to the
applicants' submissions, found that they had emigrated from former
Yugoslavia for personal reasons, and not as political refugees.
Moreover, the authorities considered that the applicants failed to show
that, due to their conduct during their stay in Germany, there were any
reasons to fear political persecution upon their return to Macedonia.
The Commission therefore concludes that the applicants'
submissions do not disclose any real risk that they would be subjected
to ill-treatment contrary to Article 3 (Art. 3) upon their deportation
to Macedonia.
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 Commission has further examined the applicants' complaint
that the impugned decisions infringed their right to respect for their
private and family life. However, the decisions of the German
authorities to expel and deport the applicants do not disclose any
appearance of a violation of Article 8 (Art. 8) of the Convention. In
particular, there is no indication in the file that the family will be
separated as a result of their deportation to Macedonia. The alleged
difficulties in finding accommodation and school facilities in
Macedonia do not engage the responsibility of Germany under Article 8
(Art. 8) of the Convention. 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.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (A. WEITZEL)
Full & Egal Universal Law Academy