AS TO THE ADMISSIBILITY OF
Application No. 31182/96
by Nysret HALITI
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 3 December 1997, the following members being present:
Mrs J. LIDDY, President
MM M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs M. HION
Mr R. NICOLINI
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 12 April 1996 by
Nysret HALITI against Germany and registered on 25 April 1996 under
file No. 31182/96;
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, born in 1966, is a Kosovo-Albanian and a citizen
of Yugoslavia. When lodging his application he was staying in Krefeld.
In the proceedings before the Commission, he is represented by
Mr. T. Stauß, a lawyer practising in Krefeld.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
On 6 May 1992 the Applicant entered the territory of the Federal
Republic of Germany. He applied for asylum on 13 May 1992, indicating
that he had left Yugoslavia in order to avoid a field exercise of the
Yugoslav reserve.
On 3 June 1992 the Federal Office for Refugees (Bundesamt für die
Anerkennung ausländischer Flüchtlinge) dismissed the applicant's
request for asylum. The Office found that, upon his return to his home
country, the applicant did not run any risk of persecution for
political reasons. His non-compliance with a draft-order for a field
exercise did not constitute a valid reason for asylum.
On 24 June 1992 the Krefeld Municipality ordered the applicant
to leave the territory of Germany within one month and ordered his
deportation, should he not leave voluntarily. The Municipality, noting
that the applicant's request for asylum had meanwhile been dismissed,
found that he had no right to stay in Germany.
On 24 July 1992 the applicant, represented by Mr. Stauß,
instituted proceedings with the Düsseldorf Administrative Court
(Verwaltungsgericht), challenging the decisions of 3 and 24 June 1992.
On 16 March 1995 the Düsseldorf Administrative Court dismissed
the applicant's action. The Court confirmed that the applicant had
failed to show any risk of political persecution upon his return to his
home country, and that it remained doubtful indeed whether he would
face any punishment at all for desertion.
On 30 May 1995 the North-Rhine Westphalia Administrative Court
of Appeal (Oberverwaltungsgericht) dismissed the applicant's request
for leave to appeal (Antrag auf Zulassung der Berufung) on the ground
that his case did not raise any issue of fundamental importance. The
Court of Appeal referred in particular to its constant case-law
according to which non-compliance by Kosovo Albanians with draft-orders
and a possible punishment for desertion were not relevant for asylum
purposes.
On 5 October 1995 the Federal Constitutional Court (Bundes-
verfassungsgericht) refused to entertain the applicant's constitutional
complaint (Verfassungsbeschwerde). The decision was served on
13 October 1995.
COMPLAINTS
The applicant complains under Articles 3, 5, 6 and 7 of the
Convention about the refusal of asylum and his expulsion to Yugoslavia.
He submits in particular that the draft-order issued against him had
been illegal and his desertion had therefore been legitimate.
Consequently, he would face an unlawful prosecution and punishment for
desertion upon his return to his home country.
THE LAW
1. The applicant complains about the refusal of his request for
asylum and his expulsion to Yugoslavia.
The Commission has examined the application under Article 3
(Art. 3) of the Convention, which reads as follows:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
The Commission recalls that the Contracting States have the right
to control the entry, residence and expulsion of aliens (cf. 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) of the Convention and hence engage
the responsibility of that State under the Convention, where
substantial grounds have been shown for believing that the person
concerned would face a real risk of being subjected to torture or to
inhuman or degrading treatment or punishment in the country to which
he is to be expelled (Vilvarajah and Others judgment, op. cit., para.
103). Since the nature of the Contracting States' responsibility under
Article 3 (Art. 3) in cases of this kind lies in the act of exposing
an individual to the risk of ill-treatment, the existence of the risk
must be assessed primarily with reference to those facts which were
known or ought to have been known to the Contracting State at the time
of the expulsion; a mere possibility of ill-treatment is not in itself
sufficient (Vilvarajah and Others judgment, op. cit., p. 36, para. 107
and p. 37, para. 111).
The Commission finds that the general situation in Kosovo at the
relevant time was not such that an expulsion to that region would in
itself amount to a violation of the Convention or any of its Protocols
(No. 23159/94, Dec. 19.5.94, D.R. 77, p. 126).
As regards the applicant's non-compliance with the draft-order
and possible punishment for desertion, the Commission, considering that
there is nothing to show that he would have risked capital punishment,
finds that his possible imprisonment for that offence is not a penalty
so severe as to raise an issue under Article 3 (Art. 3) of the
Convention (cf. No. 12364/86, Dec. 17.10.86, D.R. 50, p. 280; No.
11017/84, Dec. 13.3.86, D.R. 46, p. 176).
The Commission therefore concludes, on the evidence before it,
that it has not been established that there are substantial grounds for
believing that the applicant would be exposed to a real risk of being
subjected to treatment contrary to Article 3 (Art. 3) of the
Convention, if expelled to his country of origin.
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 applicant further complains under Article 6 (Art. 6) that the
German court proceedings were unfair.
This provision, as far as relevant, reads as follows:
"1. In the determination of his civil rights or of any criminal
charge against him, everyone is entitled to a fair ... hearing
... by [a] ... tribunal ..."
The Commission recalls that the procedures followed by public
authorities to determine whether an alien should be allowed to stay in
a country or should be expelled do not involve the determination of
civil rights or of a criminal charge within the meaning of Article 6
(Art. 6) of the Convention (No. 12122/86, Dec. 16.10.86, D.R. 50, p.
268; No. 12364/86, Dec. 17.10.86, D.R. 50, p. 280).
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) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy