AS TO THE ADMISSIBILITY OF
Application No. 33052/96
by Hasan GÜNDOGDU
against Austria
The European Commission of Human Rights sitting in private on
6 March 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
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
Mr. R. NICOLINI
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;
- the application introduced on 19 September 1996 by Hasan GÜNDOGDU
against Austria and registered on 20 September 1996 under file
No. 33052/96;
- the report provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
4 October 1996 as well as on 15 November 1996 and the
observations in reply submitted by the applicant on
16 October 1996 as well as on 29 November 1996;
- the further observations submitted by the Government on
17 January 1997, and the observations in reply submitted by the
applicant on 10 February 1997
Having deliberated;
Decides as follows:
THE FACTS
The applicant, born in 1972, is a Turkish national. At the time
of lodging his application he was detained at the Salzburg Stadt Police
Prison. In the proceedings before the Commission he is represented by
Mr. W. Vacarescu, a lawyer practising in Graz.
A. Particular circumstances of the case
The facts of the case, as submitted by the parties, may be
summarised as follows.
On 16 August 1994 the applicant crossed the border between
Hungary and Austria. He carried a passport giving the name of
Ahmed Koyuncu. He was immediately taken into detention with a view to
his expulsion.
On 17 August 1994 he applied for asylum and was heard by the
Eisenstadt branch of the Federal Office for Asylum (Bundesasylamt),
which rejected his request on the same day. It noted the applicant's
submissions that he was of Kurdish origin and had, since 1989, been
active for the TKPML (Turkish Communist Party/Marxist Leninist), of
which he formally had become a member in 1991. His task was to make
propaganda for the party and to win supporters. Since 1991 the Turkish
police had frequently arrested members of his party, had tortured them
and thus obtained the names of further members. In May 1994 he had
participated in an illegal demonstration, had been beaten on the head
by the police and lost consciousness. In the first half of July 1994
about sixty members of TIKKO (Turkish Worker Peasant Liberation Army),
the militant wing of TKPML, had been arrested and the names of more
TKPML members had been disclosed. Also his cover name had become known
and the police was searching for him.
The Federal Office for Asylum found that the reasons invoked by
the applicant did not suffice to show that he suffered political
persecution within the meaning of the Geneva Convention relating to the
Status of Refugees (Refugee Convention). Rather he risked legitimate
criminal prosecution for supporting a terrorist organisation, namely
the TKPML. Moreover, referring to S. 2 para. 2 (3) of the Asylum Act
(Asylgesetz), it found in any case that he had no right to be granted
refugee status, as he had been in safe countries (sicheres Drittland)
prior to his arrival in Austria. In particular, he had stayed in
Bulgaria, Rumania, the Ukraine and Hungary.
On 18 August 1994 the Neusiedel District Administrative Authority
(Bezirksverwaltungsbehörde) ordered the applicant's deportation
(Ausweisung) on the ground of his illegal entry from Hungary.
On 2 September 1994 the Graz Federal Police Authority
(Bundespolizeidirektion), upon the applicant's request under S. 54 of
the Aliens Act (Fremdengesetz), heard him as regards the question
whether his expulsion to Turkey would be permissible. These proceedings
are still pending.
The applicant submitted in particular that he was of Kurdish
origin and had supported anti-government groups since his youth. Since
1990 he had lived in the underground, mainly in Istanbul, as the police
was searching for him. Since 1991 he had been an active member of an
illegal leftist party, namely TKPML, which supported minority groups,
like Kurds and Armenians. Being a journalist he had drafted propaganda
material for his party, had made interviews in the war zones and the
like. It was there that pictures had been taken of him which were
published in several newspapers and thus had come to the attention of
the Turkish authorities. His party had organised documents for him
carrying the name of Ahmed Koyuncu. His cover name within the party was
"Cemal". He used it for example when he was publishing articles in the
party newspaper. In May 1994 he had participated in a demonstration and
had received a heavy blow on the head. In July 1994 about sixty persons
belonging to minority groups had been arrested, including a member of
his party. He had left Turkey on 20 July 1994.
On 20 September 1994 the Burgenland Public Security Authority
(Sicherheitsdirektion) confirmed the deportation order against the
applicant. Referring to S. 17 para. 2 (6) of the Aliens Act, it found
that he had entered Austria illegally. As he had not come directly from
the country where he was allegedly persecuted this entry was not
justified under the Asylum Act. Finally, a deportation order obliged
him to leave Austria, but did not oblige him to return to his country
of origin. The question whether he could be returned to Turkey was
reviewed in separate proceedings under S. 54 of the Aliens Act.
On 29 September 1994 the Federal Ministry for the Interior
(Bundesministerium für Inneres) rejected the applicant's appeal against
the refusal of his request for asylum. However, it granted the
applicant special leave to stay until 20 March 1995.
The Ministry found that the applicant had failed to show that he
had left his country of origin for a well-founded fear of persecution.
His submissions that the Turkish police was searching for him on
account of his membership in the TKPML were not credible, as he had not
been able to specify them. Moreover, he had only claimed to have
disseminated propaganda and tried to win supporters. In view of the low
profile of these activities, it was not clear why the State would have
any particular interest in persecuting him. As regards his submissions
that he had been beaten during an illegal demonstration, the Ministry
noted that the recourse to force which was necessary to maintain public
security, did not constitute persecution. Finally, the applicant had
obtained a Turkish identity card and a passport in April and May 1994,
respectively, i.e. before the events which allegedly caused him to
flee, which again cast doubt on his credibility.
Furthermore, the Ministry noted that the applicant in any case
had no right to asylum because he had been in safe countries before
coming to Austria. He had travelled via Bulgaria, Rumania, the Ukraine
and Hungary. As Bulgaria, Rumania and Hungary were parties to the
Refugee Convention, he could have requested asylum in one of these
countries without running the risk of being expelled to Turkey before
an examination of his request. The Ministry noted that the applicant
had submitted a document of 25 March 1994 by the United Nations High
Commissioner for Refugees (UNHCR) concerning the protection from
expulsion in Rumania and Bulgaria. However, UNHCR had not shown any
specific case where an expulsion had taken place contrary to the rules
of international law. As regards Hungary, it was true that this State
had only ratified the Refugee Convention with regard to European
refugees. However, as the application had been resident in Istanbul,
i.e. in the European part of Turkey, it would have been applicable to
him. Moreover, the Ministry referred to observations of 4 July 1994
submitted by UNHCR to the German Federal Constitutional Court,
according to which asylum seekers coming from outside Europe were
allowed to stay in Hungary until UNHCR had examined their asylum
requests. Hungary had also ratified the European Convention on Human
Rights and was thus bound by its Article 3.
Finally, the Ministry noted that it could, in accordance with
S. 8 of the Asylum Act, upon refusing a request for asylum, grant leave
to stay for a maximum period of one year, if an expulsion was
impossible for legal or factual reasons or if the person concerned
could not be expected to return to his country of origin on account of
the situation pertaining in that country. The Ministry, without giving
any specific reasons, noted that the conditions for granting such leave
to stay were met in the applicant's case.
On 27 June 1995 the Administrative Court (Verwaltungs-
gerichtshof), upon the applicant's complaint, quashed the Ministry's
decision as regards the refusal of asylum.
The Court found that the Ministry had not duly considered the
applicant's argument that following the disclosure of his cover name
and his membership in an illegal organisation, namely TKPML, he risked
persecution. In particular it noted that the applicant had, in the
appeal proceedings, submitted a newspaper article which showed his
membership of the TKPML and thereby also proved its disclosure. The
Ministry would have been required to deal with the applicant's
submissions that the penalty he risked to incur in this context was
disproportionate and was, in view of the practice of torture in Turkish
prisons, to be qualified as persecution on account of his political
beliefs. Without further investigations it was not possible to conclude
that the applicant would not suffer political persecution. In addition,
the Court, referring to its own case-law, noted that even a suspicion
of participation in armed conflict with Government troops - which might
possibly be indicated by the said newspaper article - did not prevent
the granting of refugee status. The fact that the applicant had
obtained a passport, under a wrong name, prior to the events which had
caused his flight, did not in itself cast doubt on his credibility.
Moreover, the Court rejected the Ministry's reasoning as to the
protection of the applicant in safe countries. If the Ministry had
doubts as regards the information contained in the UNHCR document
concerning Bulgaria and Rumania, which the applicant had presented, it
would have been called upon to carry out further investigations.
Hungary had limited its obligations under the Refugee Convention. Its
application depended on whether the events causing the flight had
occurred in Europe or not. It was irrelevant whether the applicant had
been resident in the European or in the Asian part of Turkey, as the
events relied on by him had possible repercussions in the entire
country. Thus, the Ministry's arguments as regards protection in
Hungary were not persuasive. Inasmuch as the Ministry had relied on
observations of UNHCR of 4 July 1994 it had failed to hear the
applicant. Moreover, this report was not enclosed in its file. A mere
reference to Hungary's adherence to the European Convention on Human
Rights was not sufficient either to qualify it as a safe country.
In conclusion, the Court found that the proceedings had suffered
from considerable procedural defects, as the Ministry had failed to
carry out the necessary investigations and to respect the applicant's
right to be heard on their results.
On 19 March 1996 the applicant got married. His wife is also a
Turkish national, who had been granted refugee status on
19 January 1995 by the Salzburg branch of the Federal Office for
Asylum.
On 12 August 1996 the Ministry for the Interior in renewed
proceedings rejected the applicant's request for asylum on the ground
that prior to his arrival in Austria he had stayed in Hungary, which
had to be considered a safe country. Thus, he should have requested
asylum there. The Ministry again relied on the observations of UNHCR
of 4 July 1994. It noted that it had now given the applicant the
opportunity to comment on them. However, his submissions in which he
referred to a report of UNHCR from November 1995 in order to show that
Hungary was not a safe country, were irrelevant as the question had to
be assessed on the basis of the situation pertaining at the time of the
applicant's stay in Hungary. His request to hear a particular witness
had to be rejected on the same ground.
On 6 September 1996 the applicant was taken into detention with
a view to his expulsion at the Salzburg Stadt Police Prison. The
Salzburg Federal Police Authority has already requested a "laissez-
passer" (Heimreisezertifikat) in order to return him to Turkey.
On 10 September 1996 the applicant requested the Minister for the
Interior to look into his case. According to the Government, the
Salzburg Federal Police Authority was thereupon requested to submit a
report and to refrain from expelling the applicant.
On 11 September 1996 the applicant again lodged a complaint with
the Administrative Court and requested that it be given suspensive
effect.
On 17 September 1996 the Salzburg Independent Administrative
Panel (Unabhängiger Verwaltungssenat) dismissed the applicant's appeal
finding that his detention was lawful. It noted in particular that the
applicant was illegally residing in Austria and that there was an
enforcable deportation order against him. Thus, his detention served
the purpose of securing his expulsion. According to the case-law of the
Administrative Court, the question whether expulsion to a specific
State was permissible was not to be reviewed in the proceedings
relating to the lawfulness of the detention with a view to expulsion,
but in separate proceedings. The fact that proceedings under S. 54 of
the Aliens Act were still pending did not render the applicant's
detention unlawful. Moreover, the Federal Police Authority had already
taken steps to obtain a "laissez-passer" for the applicant.
On 19 September 1996 the Salzburg Independent Administrative
Panel dismissed the applicant's renewed appeal. It noted that contrary
to its finding in the first decision, the applicant was married.
However, this was rather an argument for and not against the assumption
that he would try to evade his expulsion. Moreover, he was not unfit
for detention. A medical examination of 18 September had shown that,
despite the fact that he had been on hunger strike since thirteen days,
his circulation was stable and he did not suffer from metabolic
disturbances. In conclusion, his further detention with a view to his
expulsion was lawful.
On 20 September 1996 the Administrative Court rendered a decision
on the applicant's request that his complaint against the Ministry's
decision of 12 August 1996 be given suspensive effect. It stated that
the request was granted with the effect that the applicant obtained the
legal status which he had had as an asylum seeker before the contested
decision was issued.
On 23 September 1996 the Salzburg Independent Administrative
Panel again found that his detention with a view to his expulsion was
lawful. It referred to its decision of 19 September 1996 and noted that
the applicant had, immediately after the service of this decision,
lodged a new appeal without dealing with the arguments contained
therein and without submitting any new facts. His submission of
20 September in which he referred to a letter of the Secretary of the
European Commission of Human Rights of the same day was irrelevant as
it only contained an indication of the Commission to the Austrian
Government to refrain from the applicant's expulsion until the
Commission could examine his application. However, the requirements for
his detention were still met and his release could only be envisaged
if his expulsion was impossible at all and not only temporarily.
The applicant was released on the same day.
B. Relevant domestic law
Asylum Act (Asylgesetz 1991)
S. 1 of the 1991 Asylum Act states that a refugee is a person,
who left his or her home country on account of a well-founded fear of
being persecuted on account of his or her race, religion, nationality
or adherence to a particular social group or political opinion.
S. 2 para. 3 states that asylum is not to be granted to a refugee
who has already been safe from persecution in another country.
S. 4 provides that, upon request, the granting of asylum is to
be extended to the spouse if the marriage has already existed before
the entry into Austria.
According to S. 7 para. 1 an asylum seeker who has entered
Austria in accordance with Article 6 (i.e. who has come directly from
the State where he allegedly suffered persecution) and who has filed
his request for asylum within one week, has a temporary right to
residence.
S. 8 provides that the asylum authority, upon refusing a request
for asylum, may in cases which merit particular consideration, ex
officio grant the alien a temporary right to residence, if his
expulsion is impossible for legal of factual reasons or if he cannot
be expected to return to his country of origin on account of the
situation pertaining there or for other important reasons
(paragraph 1). This temporary right to residence may be granted for a
period of up to one year and may be prolonged for a further period of
up to one year if the reasons for granting it persist (paragraph 2).
Aliens Act (Fremdengesetz 1992)
S. 17 para. 2 (6) of the Aliens Act states that a deportation
order may be issued against an alien in the interest of public order,
if he has entered Austria contrary to the provisions regulating the
entry of aliens or by evading boarder controls and has been discovered
within one month.
S. 37 deals with cases where it is prohibited to expel an alien.
Paragraph 1 states that an alien may not be expelled to a specific
State if there are firm reasons to believe that he would be in danger
of being subjected to inhuman treatment or punishment or to capital
punishment in that State.
S. 37 para. 2 refers to Article 33 (1) of the Refugee Convention,
and provides that an alien may not be expelled to a State if there are
firm reasons to believe that in that State his life or his security
would be endangered on grounds of his race, religion, nationality or
adherence to a social group or on the ground of his political opinions.
According to S. 37 para. 6 an alien may not be expelled as long
as this would be contrary to an interim measure taken by the European
Commission of Human Rights or the European Court of Human Rights.
S. 54 para. 1 states that the Authority, at the alien's request,
has to render a declaratory decision on whether or not there are firm
reasons to believe that the alien, in a State indicated by him, is
endangered within the meaning of S. 37 para. 1 or 2.
S. 54 para. 2 provides that such a request may only be made
during proceedings concerning the issue of an expulsion order or of a
residence ban and that the alien has to be informed in time of the
possibility to make the request.
S. 54 para. 4 states that an expulsion may not be carried out as
long as the decision relating to the request under S. 54 has not become
final.
Federal Constitutional Act (Bundes-Verfassungsgesetz)
Article 130 para. 1 of the Federal Constitutional Act provides
that the Administrative Court decides on complaints about the alleged
unlawfulness of decisions of the administrative authorities including
the Independent Administrative Panels.
According to Article 144 para. 1 of the Federal Constitutional
Act, the Constitutional Court decides on complaints about decisions of
the administrative authorities including the Independent Administrative
Panels, if the applicant alleges that the decision violated his
constitutionally guaranteed rights or that the decision was based on
an illegal decree, an unconstitutional law or an unlawful international
treaty and thereby violated his or her rights.
COMPLAINTS
1. The applicant complains that his expulsion to Turkey would expose
him to a real risk of being subjected to treatment contrary to
Article 3 of the Convention. In particular he risks being tortured and
being subjected to a disproportionate penalty on account of his
membership of the TKPML, an illegal leftist party. Being a journalist,
he stayed in the mountains with rebels of TIKKO, the militant wing of
the TKPML. Reports which also contained his picture were published in
Turkish newspapers. He points out that even the Austrian Administrative
Court has found that his membership and activity for TKPML were
established. In his observations of 10 February 1997 the applicant also
invokes Article 2 of the Convention. He submits that he risks to be
prosecuted for offences which carry the death penalty, namely treason
or attempt to owerthrow the constitution. Further, there is also a risk
of arbitrary execution for persons like him who are suspected of
terrorist activities or political offences.
2. In his observations of 16 October 1996 the applicant also
complains under Article 5 of the Convention that his detention was
unlawful and that the review by the Independent Administrative Panel
was not in conformity with paragraph 4 of this Article. He submits in
particular that the Panel could only review the formal aspects of the
lawfulness of his detention with a view to his expulsion, e.g. whether
it had been ordered by a decision and whether the time-limits were
respected, whereas it could not review the lawfulness of the expulsion
as such.
3. Also in his observations of 16 October 1996 the applicant
complains under Article 8 of the Convention that his expulsion would
violate his right to respect for his family life as he is married to
a Turkish national who has been granted refugee status in Austria in
1995 and can therefore not be expected to follow him to Turkey.
4. Again in his observations of 16 October 1996 the applicant
complains under Article 13 of the Convention that the proceedings under
S. 54 of the Aliens Act do not provide an effective remedy against an
expulsion which would be contrary to Article 3. In his submissions of
29 November 1996 the applicant further complains that he has no
effective remedy against a violation of his right to respect for his
family life under Article 8.
5. In further submissions of 25 October 1996 the applicant complains
under Article 6 that, in the proceedings under S. 54 of the Aliens Act,
he cannot obtain a decision by an impartial tribunal. He argues that
these proceedings concern his right to freedom from injury, which has
to be classified as a civil right.
6. In his submissions of 29 November 1996 the applicant complains
that the proceedings under S. 54 of the Aliens Act are not in
conformity with Article 14 of the Convention. He refers to his
submissions relating to the question whether these proceedings provide
an effective remedy as regards complaints under Article 3.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 19 September 1996 and
registered on 20 September 1996.
On 19 September 1996 the President of the Commission decided to
apply Rule 36 of the Commission's Rules of Procedure and to communicate
the application to the respondent Government.
The Government's written observations were submitted on
4 October 1996. The applicant replied on 16 October 1996. The
Government made further submissions on 17 October 1996, to which the
applicant replied on 25 October 1996.
On 24 October 1996 the Commission decided to prolong the
application of Rule 36 of its Rules of Procedure and to communicate the
applicant's complaints which he had raised in his submissions of
16 October 1996 to the respondent Government.
The Governments written observations were submitted on
15 November 1996. The applicant replied on 29 November 1996.
On 6 December 1996 the Commission decided to prolong the
application of Rule 36 of its Rules of Procedure and to put a further
question to the Government as to the merits of the applicant's
complaint under Article 3 of the Convention.
The Government's further observations were submitted on
17 January 1997, after an extension of the time-limit. The applicant
replied on 10 February 1997.
THE LAW
1. The applicant complains under Article 3 (Art. 3) of the
Convention that his expulsion to Turkey would expose him to a real risk
of being tortured and subjected to a disproportionate penalty on
account of his membership of the TKPML, an illegal leftist party. The
applicant also relies on Article 2 (Art. 2) of the Convention, claiming
that he risks to be persecuted for offences which carry the death
penalty.
Article 2 para. 1 (Art. 2-1) of the Convention reads as follows:
"Everyone's right to life shall be protected by law. No one
shall be deprived of his life intentionally save in the execution
of a sentence of a court following his conviction of a crime for
which this penalty is provided by law."
Article 3 (Art. 3) of the Convention reads as follows:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
The Commission recalls that the expulsion of an alien may give
rise to an issue under Article 3 (Art. 3) of 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
torture or inhuman or degrading treatment in the country to which he
is expelled (see Eur. Court HR, Chahal v. the United Kingdom judgment
of 15 November 1996, to be published in Reports of Judgments and
Decisions 1996, paras. 73-74).
The Government submit that the applicant failed to exhaust
domestic remedies in accordance with Article 26 (Art. 26) of the
Convention. They submit in particular that the Administrative Court,
on 20 September 1996, granted the applicant's request that his
complaint against the refusal of asylum be given suspensive effect.
Moreover, the applicant failed to lodge a complaint with the
Constitutional Court. The Government refer to the case of C.R. and
Others v. Austria (No. 18101/91, Dec. 7.5.93, unpublished), concerning
the complaint of a group of Tamils from Sri Lanka that their expulsion
would violate Article 3 (Art. 3) of the Convention. In this case the
Commission found that the applicants failed to exhaust domestic
remedies on the ground that they had not lodged a complaint with the
Constitutional Court and the Administrative Court.
Further, the Government argue that proceedings under S. 54 of the
Aliens Act with the purpose of establishing whether the applicant's
expulsion to Turkey is permissible are still pending before the
Neusiedel District Administrative Authority. Inasmuch as the applicant
complains that no decision has been taken in these proceedings, the
Government submit that he failed to make a request for transfer of
jurisdiction to the higher authority (Devolutionsantrag). In any case,
as long as no final decision has been taken in these proceedings, the
applicant's expulsion is prohibited by S. 54 para. 4 of the said Act.
Moreover, the applicant could lodge a complaint with the Constitutional
Court and the Administrative Court against a decision in these
proceedings.
Finally, the Government refer to S. 37 para. 6 of the Aliens Act,
according to which the applicant may not be expelled as long as this
would be contrary to an interim measure indicated by the Commission.
The applicant contests the Government's view. He points to the
wording of the Administrative Court's decision of 20 September 1996
according to which he obtains the legal status he had before the
decision refusing his request for asylum. However, he did not have a
right to stay in Austria under S. 7 of the 1991 Asylum Act, as he had
not travelled to Austria directly from the persecuting state. The
special leave to stay, based on S. 8 of the Asylum Act, which the
Ministry for the Interior had granted him by decision of 29 September
1994 had expired on 20 March 1995 and had not been renewed. Thus,
despite the Administrative Court's decision, he was illegally in
Austria. As regards the Commission's decision in Application
No. 18101/91, the applicant submits that it concerned proceedings under
the 1968 Asylum Act, according to which the applicants in that case had
a temporary right to residence. Moreover, the Commission did not only
rely on the non-exhaustion of domestic remedies when declaring this
case inadmissible, but found that the applicants' complaint was in any
case manifestly ill-founded. Furthermore, the applicant points out
that the deportation order against him is final and can be executed at
any time.
As regards the proceedings under S. 54 of the Aliens Act, the
applicant submits that his request for a decision that his expulsion
to Turkey would not be permissible has been pending at first instance
since 2 September 1994. No decision has been taken to date, whereas the
deportation order against him has become final. He points out that he
could only make a request under S. 54 of the Aliens Act while
proceedings concerning the deportation order were pending and that he
had no possibility of invoking this provision once he was taken into
detention with a view to expulsion.
Furthermore the applicant submits that these proceedings suffer
from various general defects. Firstly, the same authorities, namely the
Federal Police Authorities and the Public Security Authorities which
order detention with a view to expulsion are competent to decide
whether his expulsion to a specific country would be permissible. Once
a negative decision has been taken at second instance the expulsion is
permissible. It is true that the person concerned may lodge a complaint
with the Constitutional Court and with the Administrative Court
together with a request for suspensive effect. However, until these
courts take a decision on such a request the expulsion may be carried
out. The applicant alleges that this actually happens and that it comes
to a virtual race between the alien's counsel and the immigration
authorities. He submits a newspaper article and a number of documents
relating to the case of a Turkish national of Kurdish origin who was
expelled five days after the Public Security Authority had given a
negative decision in proceedings under S. 54 of the Aliens Act, and on
the very day the Constitutional Court granted his complaint against
this decision suspensive effect.
The Commission recalls that in the area of the exhaustion of
domestic remedies there is a distribution of the burden of proof. It
is incumbent on the Government claiming non-exhaustion to satisfy the
Convention organs that the remedy was an effective one available in
theory and in practice at the relevant time, that is to say that it was
accessible, was one which was capable of providing redress in respect
of the applicant's complaints and offered reasonable prospects of
success. However, once this burden of proof has been satisfied it falls
to the applicant to establish that the remedy advanced by the
Government was in fact exhausted or was for some reason inadequate and
ineffective in the particular circumstances of the case or that there
existed special circumstances absolving him or her from the requirement
(Eur. Court HR, Akdivar v. Turkey judgment of 16 September 1996, to be
published in Reports of Judgments and Decisions 1996, para. 68).
The Commission further recalls that a remedy which does not
suspend execution of a decision to expel an alien to a specified
country is not effective for the purposes of Article 26 (Art. 26) of
the Convention (cf. 17550/90 and 17825/91, Dec. 4.7.91, D.R. 70 p. 298,
315 with further references).
The Commission notes that the Administrative Court, by decision
of 20 September 1996, granted the applicant's complaint suspensive
effect. Thereby the applicant obtained the legal status which he had
had as an asylum seeker before the Ministry's decision of
12 August 1996. The Commission considers that it is not decisive
whether or not the applicant has a temporary right to residence under
the 1991 Asylum Act. What is important is that he has again the status
of an asylum seeker whose request for asylum has not yet been finally
rejected. In this context the Commission notes in particular that,
although the deportation order against the applicant has been final
since 20 September 1994, the police authorities did not take steps to
expel him before the rejection of his request for asylum became final
by the Ministry's decision of 12 August 1996. Moreover, they released
him from detention with a view to his expulsion three days after the
Administrative Court had taken its decision to grant his complaint
suspensive effect. In the circumstances of the case, the Commission has
no reasons to believe that the police authorities would proceed to the
applicant's expulsion while the proceedings before the Administrative
Court are still pending and despite the fact that his complaint has
been granted suspensive effect.
Moreover, the Commission notes that the applicant, in accordance
with Article 130 para. 1 of the Federal Constitutional Act, may
complain before the Administrative Court that the decision of the
Ministry for the Interior, refusing his asylum request, was unlawful,
i.e. contrary to the Asylum Act. Thus, the Administrative Court has to
consider basically the same elements the Commission has to consider
under Article 3 (Art. 3), in particular the question whether the
applicant has left Turkey on account of a well-founded fear of
persecution. The same considerations apply as regards the applicant's
submissions under Article 2 (Art. 2) that he would be subjected to the
death penalty on account of his illegal political activities. If the
Administrative Court finds that the asylum authorities wrongly applied
the law or violated certain procedural requirements, it has to quash
the decision. Thus, it is able to consider, in substance, the
complaints raised by the applicant and to redress the situation
complained of.
For these reasons, the Commission finds that the proceedings
which are currently pending before the Administrative Court provide an
effective remedy as regards the applicant's complaint that his
expulsion would expose him to a real risk of being tortured and
subjected to a disproportionate penalty or even the death penalty.
Having regard to this finding, the Commission is not required to
decide whether, in the particular circumstances of the case, the
proceedings under S. 54 of the Aliens Act also provide an effective
remedy.
In conclusion, the Commission finds that the applicant has failed
to exhaust domestic remedies as required by Article 26 (Art. 26) of the
Convention.
It follows that this part of the application has to be rejected
in accordance with Article 27 para. 3 (Art. 27-3) of the Convention.
2. The Commission will next examine the applicant's complaint under
Article 8 (Art. 8) of the Convention that his expulsion would violate
his right to respect for his private and family life as he is married
to a Turkish national who has been granted refugee status in Austria
in 1995 and can therefore not be expected to follow him to Turkey.
Article 8 (Art. 8), so far as relevant, reads as follows:
"1. Everyone has the right to respect for his private and
family life, ... .
2. There shall be no interference by a public authority with
the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society in the interests
of national security, public safety or the economic well-being
of the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the
rights and freedoms of others."
As regards the exhaustion of domestic remedies the Government
rely on the same arguments as above. Further, they point out that the
applicant did not have a right to have his wife's right to asylum
extended to him under S. 4 of the Asylum Act.
The applicant maintains that he has no effective remedy as
regards his complaint under Article 8 (Art. 8) of the Convention.
The Commission recalls that the proceedings concerning the
applicant's complaint about the refusal of his request for asylum are
still pending before the Administrative Court and are having suspensive
effect. In these circumstances, the applicant's separation from his
wife is not yet imminent and his complaint appears to be premature.
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.
3. The applicant also complains under Article 5 (Art. 5) of the
Convention that his detention was unlawful and that the scope of review
of the Independent Administrative Panel was not in conformity with
paragraph 4 of this Article.
Article 5 (Art. 5) of the Convention, so far as relevant, reads
as follows:
"1. Everyone has the right to liberty and security of person.
No one shall be deprived of his liberty save in the following
cases and in accordance with a procedure prescribed by law:
...
f. the lawful arrest or detention of a person ... against
whom action is being taken with a view to deportation or
extradition.
4. Everyone who is deprived of his liberty by arrest or
detention shall be entitled to take proceedings by which the
lawfulness of his detention shall be decided speedily by a court
and his release ordered if the detention is not lawful."
As regards the exhaustion of domestic remedies as required by
Article 26 (Art. 26) of the Convention, the Government rely on the same
arguments as above.
The applicant submits that he could have lodged a complaint with
the Constitutional Court and the Administrative Court against the
decision of the Independent Administrative Panel. However, he refers
to case-law of the Constitutional Court according to which such
complaints would not have offered prospects of success.
The Commission is not required to examine whether the applicant
has exhausted domestic remedies, as this part of the application is in
any event inadmissible for the reasons set out below.
As to the merits of the complaint, the Government point out in
particular that the Salzburg Independent Administrative Panel found
that there was a final deportation order against the applicant and
that, thus, his detention with a view to his expulsion was lawful.
The applicant submits that the Independent Administrative Panel
could only review the formal aspects of the lawfulness of his
detention, e.g. whether it had been ordered by a proper decision and
whether the time-limits were respected, whereas it could not review the
lawfulness of the expulsion as such. The question whether his expulsion
to Turkey was permissible had to be dealt with in separate proceedings
under S. 54 of the Aliens Act.
The Commission notes that the applicant has not substantiated his
complaint under Article 5 (Art. 5) that his detention was unlawful
under domestic law. However, on the basis of the material before it,
there is no doubt that he was detained from 6 to 23 September 1996 with
a view to his deportation within the meaning of Article 5 para. 1 (f)
(Art. 5-1-f).
The Commission recalls that all that is required under this
provision is that "action is being taken with a view to deportation"
and that it is, therefore, immaterial for the purposes of Article 5
para. 1 (f) (Art. 5-1-f), whether the underlying decision to expel can
be justified under national or Convention law (Eur. Court HR, Chahal
v. the United Kingdom judgment of 15 November 1996, to be published in
Reports of Judgments and Decisions 1996, para. 112).
In the present case there was a final deportation order against
the applicant and specific steps to enact his expulsion, such as
requesting a "laissez-passer" for him, were taken. The applicant's
detention was, thus, in conformity with Article 5 para. 1 (f)
(Art. 5-1-f).
As to Article 5 para. 4 (Art. 5-4), the Commission recalls that
the judicial review under this Article should be wide enough to bear
on those conditions which are essential for the "lawful" detention of
a person according to Article 5 para. 1 (Art. 5-1). In cases of
detention with a view to deportation it follows from the requirements
of Article 5 para. 1 (Art. 5-1) that Article 5 para. 4 (Art. 5-4) does
not demand that the domestic courts should have the power to review
whether the underlying decision to expel could be justified under
national or Convention law (Chahal v. the United Kingdom judgment, loc.
cit., paras. 127-128). In view of this case-law, the applicant's
complaint that the scope of review of the Independent Administrative
Panel was insufficient in that it could not examine the lawfulness of
his expulsion, does not disclose any appearance of a violation of
Article 5 para. 4 (Art. 5-4).
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.
4. The applicant complains under Article 6 (Art. 6) of the
Convention that, in the proceedings under S. 54 of the Aliens Act, he
cannot obtain a decision by an impartial tribunal. He argues that these
proceedings concern his right to freedom from injury, which has to be
classified as a civil right.
The Commission recalls that the proceedings under S. 54 of the
Aliens Act deal with the question whether an alien may be expelled to
a specific State or whether his expulsion would be prohibited on the
ground that he would risk treatment contrary to Article 3 (Art. 3) of
the Convention or political persecution within the meaning of the
Refugee Convention in that country. They are, thus, closely linked to
the proceedings concerning the deportation order and do not fall within
the scope of Article 6 (Art. 6) (cf. No. 12972/87, Dec. 9.11.87, D.R.
54 p. 207, 212).
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).
5. The applicant complains under Article 13 (Art. 13) of the
Convention that the proceedings under S. 54 of the Aliens Act do not
provide an effective remedy against an expulsion which would be
contrary to Article 3 (Art. 3). He further complains that he did not
have an effective remedy as regards his complaint that his expulsion
would violate his right to respect for his family life under
Article 8 (Art. 8).
Article 13 (Art. 13) reads as follows:
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy before a
national authority notwithstanding that the violation has been
committed by persons acting in an official capacity."
The Government submit that the proceedings under S. 54 of the
Aliens Act satisfy the requirements of Article 13 (Art. 13) of the
Convention. They refer to the Commission's admissibility decision in
the case of Ahmed v. Austria (No. 25964/94, Dec. 7.3.95, unpublished),
in which the Commission found that these proceedings "may, in
principle, provide an effective remedy against a foreigner's
expulsion". Further they point out again that S. 54 para. 4 of the
Aliens Act prohibits a foreigner's expulsion as long as no final
decision is taken in these proceedings.
The applicant submits in particular that the immigration
authorities which decide in the proceedings under S. 54 of the Aliens
Act are not sufficiently independent and are, thus, not in conformity
with the requirements of Article 13 (Art. 13). As regards a review by
the Administrative Court he refers to his above submissions, alleging
in particular that the immigration authorities in most cases carry out
the expulsion without waiting for the Court's decision on a request for
suspensive effect and that the Administrative Court holds that the
applicant has no longer a legitimate interest in the decision once an
expulsion has taken place.
The Commission, having regard to its above finding that the
Administrative Court granted the applicant's complaint in the asylum
proceedings suspensive effect, considers that the applicant in the
particular circumstances of the case, cannot claim to be a victim of
a violation of his right to an effective remedy as regards his
complaint under Article 3 (Art. 3) of the Convention. The applicant's
submissions concerning the alleged lack of an effective remedy as
regards his complaint under Article 8 (Art. 8) are unsubstantiated.
In conclusion, the Commission finds that this part of the
application is manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
6. Finally, the applicant complains that the proceedings under S. 54
of the Aliens Act are not in conformity with Article 14 (Art. 14) of
the Convention. He refers to his submissions relating to the question
whether these proceedings provide an effective remedy as regards
complaints under Article 3 (Art. 3).
Article 14 (Art. 14) reads as follows:
"The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any ground
such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national
minority, property, birth or other status."
The Commission recalls that this provision only prohibits
discrimination regarding enjoyment of the rights and freedoms
guaranteed by the Convention (cf. No. 19819/92, D.R. 78 p. 88).
It appears that the applicant wishes to complain that he has been
discriminated against in the enjoyment of his rights under Article 3
(Art. 3) of the Convention. However, he has failed to substantiate in
what respect the proceedings under S. 54 of the Aliens Act are
discriminatory. The Commission finds that the applicant's submissions
do not disclose any appearance of a violation of Article 14 in
combination with Article 3 (Art. 14+3).
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 14 (Art. 14) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
H.C. KRÜGER S. TRECHSEL
Secretary President
to the Commission of the Commission
Full & Egal Universal Law Academy