AS TO THE ADMISSIBILITY OF
Application No. 12437/86
by G.M.
against the Federal Republic of Germany
The European Commission of Human Rights sitting in private on
14 May 1987, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
G. TENEKIDES
S. TRECHSEL
B. KIERNAN
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Mrs G.H. THUNE
Sir Basil HALL
Mr. F. MARTINEZ
Mr. H.C. KRÜGER, 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 9 October 1986
by G.M. against the Federal Republic of Germany and
registered on 9 October 1986 under file No. 12437/86;
Having regard to:
- the first report of October 1986 provided for in Rule 40 of
the Rules of Procedure of the Commission;
- the Commission's decision of 10 October 1986 to give
precedence to the application under Rule 27 in fine of the
Commission's Rules of Procedure as well as to bring the
application to the notice of the parties and to invite them under
Rule 42 para. 2 (a) to submit further information on the case;
- the information submitted by the respondent Government on
26 November 1986;
- the second report of November 1986 provided for in Rule 40 of
the Rules of Procedure of the Commission;
- the Commission's decision of 3 December 1986 to request the
applicant to comment on the information submitted by the
Government;
- the applicant's comments of 23 December 1986 and
19 January 1987;
- the third report of January 1987 provided for in Rule 40 of
the Rules of Procedure of the Commission;
- the Commission's decision of 19 January 1987 to bring the
application to the notice of the respondent Government and to
invite them under Rule 42 para. 2 (b) of the Rules of Procedure
of the Commission to submit written observations on the
admissibility and merits of the application;
- the observations submitted by the respondent Government on
16 March 1987 and the observations in reply thereto submitted
by the applicant on 15 April 1987;
- the fourth report of April 1987 provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, a stateless Palestinian from the Lebanon born
in 1926, is currently residing in Berlin. Before the Commission the
applicant is represented by Ms. Heidemarie Bischoff-Pflanz.
I.
The applicant states that she has no relatives left in the
Lebanon. There she resided in the Ain-el-helweh camp near Saida
where she has been registered since 1948. The house which she had
built was destroyed after the Israeli invasion in 1982. Thereafter,
she again lived in a tent. All her children had also lived in the
camp. No other possibilities of residence exist. In particular,
Palestinians are not allowed to live outside the camps or in another
camp where they are not registered and the UNRWA (United Nations
Relief and Works Agency for Palestine Refugees) cannot assure their
safety. In any event, the applicant has no relatives in other camps.
The Lebanese Government is also not in the position to afford her the
necessary protection since the country is currently being ruled by
various competing militias.
As regards the applicant's family, a blind daughter has been
abducted in the Lebanon and is since missing. One son, born in 1954,
was in Israeli captivity. When in 1986 he was brought to the Lebanese
border, he was killed, presumably by the Amal militia.
The son Ahmad Mohammad, born in 1962, lives in Berlin. He had
a residence permit which was valid until 10 February 1987. He is
almost blind and suffers from diabetes. His residence permit, which
was due to expire on 10 February 1987, has been extended.
The daughter Amné Mohammad, born in 1963, also lives, at a
different address, in Berlin. The applicant is currently residing
with this daughter, who has three children, born in 1981, 1982 and
1986 respectively, and does not possess a residence permit. As the
applicant points out, this daughter is married to a Palestinian though
the marriage document is not accepted by the Berlin authorities. She
is currently pregnant. While her application for asylum, filed in
1982, was pending, she was allowed to stay in Berlin. Thereafter, her
application was finally rejected. This daughter was convicted in 1984
of theft and assault and sentenced to a prison sentence of eight
months. As her youngest child, born in 1986, was ill, she and her
three children were not asked to leave the country immediately so that
medical treatment needed by the child could be completed. At present
her residence is being provisionally tolerated on account of the
changed situation in the Lebanon. The daughter was also sentenced on
15 May 1986 for theft to two months' imprisonment on probation.
The daughter Fatma Issa, born in 1956, who arrived in the
Federal Republic of Germany in 1979, lives with her husband, a
Palestinian, and three children in Wuppertal. In 1981 this daughter
withdrew her application for asylum. The family is permitted to
remain in the Federal Republic of Germany on humanitarian grounds.
The last decisions permitting this residence are valid until
25 May 1987.
The son Omar Mohammad, born in 1968 in Ain-e-helwe, came to
the Federal Republic of Germany in 1979 and voluntarily returned to
the Lebanon in 1983. He returned to West Berlin with his mother, the
applicant, on 2 February 1986. He now lives with the Issa family in
Wuppertal where he is involved in subsequent application proceedings
(Folgeantragsverfahren).
As far as the applicant, who is illiterate, can remember, the
further family situation is as follows:
The son Kerim Mohammad, born in 1942, has been living in
Berlin since 1973. He is married with a Palestinian and has eight
children. His request for asylum has been rejected and his
expulsion is temporarily suspended (Duldung). He intends to apply
again for permission to stay.
The daughter Faouzie Al Tahar, born in 1948, lives with her
husband, a Palestinian, and five children in Berlin. Her expulsion has
also been temporarily suspended.
The daughter Fathiye Al Taha, born in 1944, lives with her
husband, a Palestinian, and eight children in Pirmasens in Germany.
Her expulsion has been temporarily suspended.
The daughter Souad Khalil Ayyache, born in 1956, lives with
her husband, a Palestinian, and four children, at a different address
in Pirmasens. Her expulsion has also been temporarily suspended.
II.
The applicant arrived for the first time in West Berlin on
28 July 1977 and applied for political asylum on 3 August 1977. She
withdrew that application on 12 September 1977 and returned to the
Lebanon on 15 September 1977. Later, when making her second
application for asylum, in November 1978, the applicant stated that in
1977 she had been in Berlin on a visit.
On 10 November 1978, she returned to West Berlin, where she
made a second application for asylum on 23 November 1978. She then
returned to the Lebanon on an unknown date, travelling again to West
Berlin on 23 September 1979, the validity of her travel document
having been extended in Beirut on 11 September 1979. On 23 May 1980
the Federal Office responsible for the Recognition of Foreign Refugees
(Bundesamt für die Anerkennung ausländischer Flüchtlinge) rejected her
application for asylum on the following grounds:
"The applicant has not provided sufficient evidence in support
of her case for asylum. She did not attend the preliminary
examination at the Federal Office, despite having been
properly summoned and told of the consequences of failure to
attend. ... The danger to her does not stem from persecution
by Lebanese Government authorities, but from the existence of
a virtual civil war in the Lebanon."
On 26 September 1980, the applicant was asked to leave the
country. She appealed against both this and the decision of
23 May 1980. However, on 9 February 1983, she withdrew her application
for asylum and declared that he would voluntarily return to the
Lebanon if the Berlin Welfare Office (Sozialhilfe) would meet the cost
of her journey. She returned to the Lebanon the same day.
On 12 October 1983, the applicant again arrived in West Berlin,
making her third request for asylum on 14 October 1983. She withdrew
that request on 6 April 1984 and voluntarily left for Damascus (Syria)
with her son Omar on 29 April 1984. The authorities had not at that
stage requested her to leave the country. In Damascus, the applicant
had two sisters, one of whom has meanwhile died. Thereafter, she
spent some time living with one of her sons and some time in hospital
in Beirut.
It appears that the applicant's last residence in the Lebanon
after her return in 1984 was again in the Ain-el-helweh camp.
The applicant realised that her son would not be released.
The situation in the Ain-el-helweh camp became increasingly dangerous
when it was bombed by the Israeli air force and attacked by the Amal
militia. The latter apparently control the camp and have set
themselves the aim to drive away the Palestinians. The inhabitants of
the camp cannot therefore rely on the protection by the Amal militia.
In order to save her life and her bodily integrity the
applicant again returned to Berlin. With the help of friends she
managed to undertake the dangerous voyage to Beirut during which she
had constantly to undergo controls by the various militia.
III.
On 2 February 1986, the applicant and her son Omar again
arrived in West Berlin, and on 5 February 1986 she made her fourth
request for political asylum.
On 17 April 1986, a hearing took place before the Berlin
Aliens' Authority, which rejected her application for asylum in
accordance with Section 14(1) and Section 10(1) and (2) of the Asylum
Procedure Act (Asylverfahrensgesetz). She was also requested to leave
the country and threatened with deportation.
Her subsequent action was rejected by the Berlin
Administrative Court (Verwaltungsgericht) on 7 October 1986. Already
on 27 May 1986 the Berlin Administrative Court and, on 17 July 1986,
the Berlin Administrative Court of Appeal (Oberverwaltungsgericht) had
decided not to endow the action with suspensive effect.
On 7 October 1986 the applicant underwent an official medical
examination in order to assess her fitness to travel. The respective
police doctor concluded that she was in a position to travel to the
Lebanon by air, provided that she was accompanied.
However, in view of the situation in the Lebanon the West
Berlin authorities have meanwhile decided for an indefinite period not
to deport Palestinians to the Lebanon. The applicant falls within the
scope of this decision, and her stay is currently being tolerated.
COMPLAINTS
The applicant originally complained under Article 3 of the
Convention of the proposed execution of the expulsion order. She
submitted that the exact date would be fixed once she had been
arrested for this purpose, and that this measure was imminent. The
applicant would have no other choice than to attempt to reach the
Ain-el-helweh camp where she would again be subjected to the above
mentioned dangers. Thus, in July 1986 the Israeli air force again
bombed the camp which continues to be surrounded by the Amal militia.
As a result, it is not the Lebanese Government but autonomous groups
which will subject her to inhuman treatment contrary to Article 3 of
the Convention.
In support of her application the applicant has submitted,
inter alia, a letter of the deputy representative of the Branch Office
in the Federal Republic of Germany of the United Nations High
Commissioner for Refugees of 13 August 1986. Therein, the deputy
representative urgently requests the Regional Inhabitants'
Registration Office to reconsider its decision to expel the applicant,
who has "apparently been recognised as a UNRWA-refugee", in view of
the special circumstances of the case, the situation in the Lebanon
and the existing dangers to body, life and freedom of the applicant.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced by telex on 9 October 1986 and
registered on the same day.
On 10 October 1986 the Commission, while not applying Rule 36
of the Commission's Rules of Procedure, decided to request the parties
to submit further information on the case under Rule 42 (2)(a) of the
Rules of Procedure.
On 14 October 1986 the Agent of the respondent Government
informed the Commission of her Government's position in respect of the
applicant's representation.
On 16 October 1986 the applicant submitted her reply to the
questions put to her under Rule 42 (2)(a). On 27 October 1986 the
applicant commented on the Government's telex of 14 October 1986.
The Government's information dated 26 November 1986 was
received on 1 December 1986.
On 3 December 1986 the Commission decided to request the
applicant to comment on the information submitted by the Government.
The applicant submitted her comments on 23 December 1983.
On 19 January 1987 the Commission decided to bring the
application to the notice of the respondent Government and to invite
them under Rule 42 para. 2 (b) of the Rules of Procedure of the
Commission to submit written observations on the admissibility and
merits of the application.
The Government's observations were submitted on 16 March 1987
and the applicant's observations in reply on 15 April 1987.
SUBMISSIONS OF THE PARTIES
A. The respondent Government
1. The Government submit that the applicant is a person who has
been shuttling to and from her homeland or her previous place of
residence and has therefore herself shown that she is not subject to
any persecution there.
In principle, the Land of Berlin examines every case
individually before deportation is ordered and enforced. The
situation in the Lebanon is under constant study. Accordingly, the
only people deported to the Lebanon are those for whom any dangers,
which exist to their lives and freedom, are not appreciably greater
than those faced by everyone in the Lebanon or by all members of the
ethnic or religious group to which the foreign deportee belongs.
Nobody is deported to areas of fighting.
Insofar as the applicant is represented before the Commission
by the chairperson of the Alternative List Fraction of the Berlin
Diet, the respondent Government regard it as essential that the
applicant is represented by a lawyer according to the laws of the
Federal Republic of Germany.
2. In the Government's view it need not be decided whether the
situation in certain regions of the Lebanon, which is similar to that
prevailing in a civil war, and the circumstances in which Palestinians
are living there, can be regarded as raising an issue under Article 3
of the Convention. The competent Berlin authorities as well as the
other Land Governments have on humanitarian grounds imposed a stop on
deportation owing to the present circumstances in the Lebanon. In
other words, in view of the changed situation in the Lebanon, it has
been decided for an indefinite period not to deport Palestinians to
the Lebanon. According to a decision of the Minister for Home Affairs
of the Land Berlin this now includes persons who have committed a
criminal offence as well as the so-called "shuttlers". Both groups
were previously excluded from the suspension of deportation. The
residence of such persons is now being tolerated until further notice.
The applicant falls within the scope of this decision.
Regardless of the place to which the applicant would go if she
returned to the Lebanon, she is in any case in no danger of being
treated in a manner incompatible with Article 3 of the Convention
until the situation in the Lebanon improves. Rather, her further stay
in West Berlin will continue to be tolerated.
A renewed request to leave the country and its possible
execution can only be contemplated in an indeterminate future when the
situation in the Lebanon has improved and the applicant can return
without danger to her life or physical security. Against such an
administrative order, which will be made on the basis of an
examination of the individual circumstances, the applicant will be
able to avail herself of the usual legal remedies.
Her application on the basis of Article 3 of the Convention is
therefore manifestly ill-founded.
3. The Government further observe that none of the applicant's
above-mentioned relatives have been recognised as entitled to
political asylum in the Federal Republic of Germany. They are only
tolerated there on humanitarian grounds owing to the situation in the
Lebanon. It may therefore be assumed that when that situation
improves, they, too, will have to return. In any event, they are free
to leave the country voluntarily with the applicant if they so desire.
As a result, regardless of whether the applicant at the moment still
has close relatives in the Lebanon, she would not have to live alone
in the Lebanon separated from all her relatives if she returned there
in the future.
The application is therefore also on this ground manifestly
ill-founded.
B. The applicant
1. The applicant submits that an individual examination by the
authorities of cases like the present one does not take place. It is
only routinely (formularmässig) determined that the person concerned
is a so-called shuttler. Three Palestinians are mentioned as examples
of persons who have nevertheless been expelled to Beirut in November
1986.
As regards the issue of representation, the applicant submits
that Article 26 para. 2 of the Commission's Rules of Procedure permits
the representation of applicants also by persons other than lawyers.
2. The applicant submits further that, even if her stay in West
Berlin is now being tolerated, at the moment for a further three
months, the original deportation order has not been cancelled and can
at any time be executed. The Senator for the Interior has ordered in
respect of deportation warnings which have already been issued that
they must be cancelled if administrative proceedings are pending.
The present application continues to be relevant since Article
3 of the Convention grants a right to the applicant not to be deported
to the Lebanon, and the Government have only submitted that her stay
will be tolerated on humanitarian grounds. Moreover, the applicant
submits a report of the organisation "medico international" according
to which there may be a danger of inhuman treatment and torture for
Palestinians in the Lebanon also in areas where there is no acute
fighting. For instance, the applicant's daughter was abducted at a
time when there was an official armistice.
THE LAW
As a preliminary point the Commission notes that the
respondent Government have called in question the validity of the
applicant's representation before the Commission in as much as her
representative is not a lawyer. The applicant submits that persons
other than lawyers may represent applicants under Rule 26 of the
Commission's Rules of Procedure which states:
"Any such applicant may appoint, and be represented in
proceedings before the Commission by, a lawyer or any
other person, resident in a Convention country, unless
the Commission at any stage decides otherwise."
However, the Commission finds it unnecessary to resolve this
issue since the application is in any event manifestly ill-founded for
the following reasons.
The applicant has complained of her proposed expulsion to the
Lebanon. She submits that she has no other choice than to live in
the Ain-el-helweh camp where she is registered. However, that camp is
subjected to attacks by the Israeli air force and the Amal militia
surrounding the camp. Her expulsion to the Lebanon would thus amount to
inhuman treatment contrary to Article 3 (Art. 3) of the Convention. If the
applicant's stay in West Berlin is currently being tolerated on humanitarian
grounds, this does not mean that the deportation order concerned could not at
any time be executed.
The Government submit that the competent Berlin authorities
have decided on humanitarian grounds, owing to the present
circumstances in the Lebanon, for an indefinite period not to deport
Palestinians to the Lebanon. This also includes persons who have
committed a criminal offence as well as the so-called "shuttlers".
Accordingly, the applicant is in no danger of being treated in a
manner incompatible with Article 3 (Art. 3) of the Convention until the
situation in the Lebanon improves. Her further stay in West Berlin
will continue to be tolerated. If and when a new administrative order
of deportation should be made in an indeterminate future, the
applicant will be able to avail herself of the usual legal remedies.
Article 3 (Art. 3) of the Convention forbids, inter alia, inhuman or
degrading treatment, and the Commission has consistently held that the
expulsion or extradition of a person could, in certain exceptional
circumstances, involve a violation of Article 3 (Art. 3) where there is serious
reason to believe that the person to be expelled or extradited will be
subjected to treatment prohibited by the Article in the receiving country (see
No. 8581/79, Kilic v. the United Kingdom, Dec. 6.3.80, D.R. 29 p. 48).
In the present case the Commission notes that the dangers
alleged by the applicant upon her return to the Lebanon, arise, in
part, not from Government authorities but from autonomous groups. The
Commission recalls its previous case-law in which it left open the
question whether, in examining a case of this kind from the standpoint of
Article 3 (Art. 3), it may take into account an alleged danger arising, not
from public authorities, but from autonomous groups (see No. 8581/79, ibid.).
Even assuming that in the present case an alleged danger
arising from autonomous groups may be taken into account, the
Commission observes that in view of the situation in the Lebanon the
West Berlin authorities have decided, for an indefinite period of
time, not to deport Palestinians to the Lebanon, and the applicant's
stay in West Berlin is currently being tolerated.
This information has been confirmed by the applicant.
However, the applicant has called in question the Government's further
submissions according to which, should she be requested to leave the
country in the indeterminate future, she may again avail herself of
the normal domestic remedies. The applicant contends in particular
that the original deportation warning may at any time be executed.
The Commission observes, on the one hand, that the applicant
has not substantiated her allegation that the original deportation
order may at any time again be executed. She has in particular not
shown that, should her toleration (Duldung) be repealed, she would be
unable to avail herself of the normal remedies under German law.
On the other hand, the Commission is satisfied that the
assurances of the respondent Government provide sufficient guarantee
that the applicant, whose stay in the Federal Republic of Germany is
currently being tolerated, can again avail herself of remedies under
German law, should her toleration be repealed.
As a result, there is at present no serious reason to believe
that the applicant will be subjected to treatment prohibited in
Article 3 (Art. 3) of the Convention. In these circumstances, and in
particular in view of the Government's assurances, the Commission
considers that the applicant can no longer claim to be a victim of the
alleged violation within the meaning of Article 25 (Art. 25) of the
Convention. It follows that the application is manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)