AS TO THE ADMISSIBILITY OF
Application No. 23830/94
by Zenel KRUETZI
against Austria
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 3 February 1994
by Zenel KRUETZI against Austria and registered on 11 April 1994 under
file No. 23830/94;
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 is a national of former Yugoslavia, and of Kosovo-
Albanian origin, born in 1958. He is presently residing in Rijeka
(Croatia). Before the Commission he is represented by Mr. W. Rainer,
a lawyer practising in Vienna.
The facts of the case, as presented by the applicant, may be
summarised as follows.
On 13 April 1993 the applicant arrived in Austria. The next day
he filed an asylum request with the Federal Asylum Office (Bundes-
asylamt). On 15 April 1993 he was questioned by the Asylum Office.
On 16 April 1993 the Asylum Office dismissed the applicant's
request. The Asylum Office referred to the applicant's statements of
15 April 1993 according to which he had left Jugoslavia because in the
course of a police check of a bus on which he had been travelling,
police officers had taken away his passport, had slapped him in the
face and had ordered him to come to the police station the next day.
He had not presented himself at the police station because he had
feared that he would be ill-treated. He had further stated that he did
not want to return to Jugoslavia because he feared to be drafted for
military service. Before arriving in Austria he had stayed for one and
half a month in Croatia. The Asylum Office found that the incident
with the police officers did not as such constitute persecution within
the meaning of the Geneva Refugee Convention. The Asylum Office
further considered that the fact that upon his return he would be
drafted for military service did not constitute a reason for granting
refugee status. Furthermore, he had stayed, before coming to Austria,
for some time in Croatia which had to be considered as a safe country.
Thus, he had already found refuge before coming to Austria. The Asylum
Office also decided that an appeal against its decision had no
suspensive effect.
On 16 April 1993 the Baden District Administrative Authority
(Bezirkshauptmannschaft), having found that he had entered Austria by
circumventing the border control and having noted that his asylum
request had been dismissed, issued a deportation order (Ausweisungs-
bescheid) against the applicant and ordered that he be taken into
detention with a view to expulsion (Schubhaft). The applicant appealed
against this decision.
On 28 April 1993 the applicant requested the District
Administrative Authority to render a declaratory decision that his
removal to Jugoslavia, Macedonia, Italy, Croatia and Slovenia was not
permitted (Feststellung der Unzulässigkeit der Abschiebung). He
invoked Section 37 of the Aliens Act (Fremdengesetz) according to which
the removal of an alien was not permitted to a country where he would
risk inhuman treatment, punishment and capital punishment or where his
life or liberty would be endangered because of his ethnic origin or
political opinion. He submitted that if expelled to Jugoslavia he
would be ill-treated and drafted for military service. He would also
risk to be expelled to Yugoslavia from the other countries mentioned.
On 6 May 1993 the District Administrative Authority rejected the
applicant's request of 28 April 1993. It noted that a deportation
order had been issued against the applicant on 16 April 1993 and
recalled that a request for a declaratory statement could only be filed
prior to the termination of the proceedings in first instance but not
during the appeal proceedings.
On 18 May 1993 the Federal Minister for the Interior
(Bundesminister für Inneres) dismissed the applicant's appeal against
the Federal Asylum Office's decision of 16 April 1993. The Minister
found that the applicant had failed to substantiate his allegation that
he would risk persecution in Jugoslavia. In particular, sovereign
states were entitled to institute and enforce military service, even
by severe punishment. The situation of civil war in the applicant's
country of origin was no sufficient reason for granting asylum.
On 3 June 1993 the Public Security Authority of Niederösterreich
(Sicherheitsdirektion) dismissed the applicant's appeal against the
District Administrative Authority's decision of 6 May 1993.
On 9 June 1993 the applicant filed a complaint with the
Administrative Court against the Public Security Authority's decision
of 3 June 1993. He submitted that a request for a declaratory
statement could also be filed during appeal proceedings. The applicant
also requested that suspensive effect be granted to his complaint.
On 18 June 1993 the Administrative Court granted suspensive
effect to the applicant's complaint.
On 12 July 1993 the Public Security Authority submitted its
observations on the applicant's complaint in which, inter alia, it
informed the Administrative Court that the latter's decision of
18 June 1993 to grant suspensive effect, had only been received by the
Authority on 5 July 1993, whereas the applicant had already been
removed to Yugoslavia on 24 June 1993.
On 29 July 1993 the Administrative Court discontinued its
proceedings as there was no longer a legitimate interest in pursuing
the matter (Wegfall des Rechtsschutzbedürfnisses): After the applicant
had been removed, his complaint had only a theoretical significance but
the purpose of the proceedings instituted could no longer be achieved.
COMPLAINTS
1. The applicant complains under Article 13 of the Convention that
the Administrative Court's decision to discontinue proceedings after
his removal had already been carried out, had violated his right to an
effective remedy to complain that his removal to Jugoslavia would
violate his right under Article 3 of the Convention not to be subject
to inhuman treatment.
2. The applicant further complains under Article 6 para. 1 of the
Convention that the Administrative Court's decision to discontinue
proceedings and not to deal with his complaint in substance had
violated his right to a fair trial.
THE LAW
1. The applicant complains under Article 13 (Art. 13) of the
Convention that the Administrative Court's decision to discontinue
proceedings after his removal had already been carried out, had
violated his right to an effective remedy to complain that his removal
to Yugoslavia would violate his right under Article 3 (Art. 3) of the
Convention not to be subject to inhuman treatment.
Article 13 (Art. 13) of the Convention 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 Commission recalls that Article 13 (Art. 13) of the
Convention requires a remedy in domestic law only in respect of
grievances which can be regarded as "arguable" in terms of the
Convention (Eur. Court H.R., Powell and Rayner judgment of
21 February 1990, Series A no. 172, p. 14, para. 31).
In order to ascertain whether Article 13 (Art. 13) was applicable
in the instant case, the Commission has to determine, in the light of
the facts of the case and the nature of the legal issue or issues
raised, whether the claim that the applicant's removal to Yugoslavia
exposed him to the risk of inhuman treatment prohibited by Article 3
(Art. 3) of the Convention was arguable.
In this respect, the Commission recalls that the Contracting
States have the right to control the entry, residence and expulsion of
aliens. The right to political asylum is not protected in either the
Convention or its Protocols (Eur. Court H.R., Vilvarajah and Others
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 (ibid., para. 103). A mere possibility of ill-
treatment is not in itself sufficient (ibid., p. 37, para. 111).
The Commission observes that the Austrian police authorities
refused the applicant's request for political asylum as they found that
he had failed to substantiate a risk of being persecuted in Yugoslavia
upon his return.
The Commission finds in particular that the risk of prosecution,
upon his return to Yugoslavia for evasion of military service, does not
in itself constitute treatment contrary to Article 3 (Art. 3) of the
Convention (cf. No. 11017/84, Dec. 13.3.86, D.R. 46 p. 181;
No. 12364/86, Dec. 17.10.86, D.R. 50 p. 289; No. 22199/93,
Dec. 21.10.93, unpublished).
Moreover, the Commission considers that the applicant has not
shown any further serious risks of being prosecuted on other grounds
or otherwise exposed to treatment forbidden by Article 3 (Art. 3) of
the Convention.
The Commission therefore finds that the applicant's submissions
do not give rise to a prima facie issue under Article 3 (Art. 3) of the
Convention, and thus cannot be considered to be an "arguable claim".
Consequently, Article 13 (Art. 13) of the Convention does not apply in
respect of the applicant's complaint under Article 3 (Art. 3) of the
Convention.
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 complains further under Article 6 para. 1
(Art. 6-1) of the Convention that the Administrative Court's decision
to discontinue proceedings and not to deal with his complaint in
substance had violated his right to a fair trial.
The Commission recalls that a decision as to whether an alien
should be allowed to stay in a country does not involve the
determination of civil rights or of a criminal charge within the
meaning of Article 6 (Art. 6) of the Convention (No. 8118/77, D.R. 25
p. 105, at 119).
It follows that Article 6 para. 1 (Art. 6-1) of the Convention
is not applicable in the present case.
This part of the application is therefore incompatible ratione
materiae with the provisions of the Convention in accordance with
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