AS TO THE ADMISSIBILITY OF
Application No. 24258/94
by Dragan MANCE
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 12 October 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
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
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 24 January 1994
by Dragan MANCE against Austria and registered on 3 June 1994 under
file No. 24258/94;
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 facts of the case as submitted by the applicant may be
summarised as follows.
The applicant, born in 1965, is a national of Yugoslavia (Serb).
He is currently detained in the Tullnerbach Tuberculosis Sanatorium,
which belongs to the prison of the Vienna Regional Criminal Court.
A. Particular circumstances of the case
The applicant performed his military service in the Yugoslav army
from March 1987 until August 1987 as an infantry soldier. He was called
up to serve in January 1992 and was deployed in Sarajevo. He deserted
in early 1992 and came to Austria on 24 May 1992.
On 25 November 1992 the applicant filed a request for asylum. He
submitted in particular that he had attacked the officer leading his
unit, who had thrown a one-year-old child in an oven. After that he
deserted. According to his written request he shot the officer, while
at the hearing before the Federal Office for Asylum (Bundesasylamt),
where he was assisted by an interpreter, he said that he knocked him
down. On 23 December 1992 the Federal Office for Asylum dismissed the
applicant's request. On 11 August 1993 the Federal Ministry for the
Interior (Bundesministerium für Inneres) dismissed the applicant's
appeal. The Ministry found, inter alia, that penalties for draft
evasion or desertion did not in themselves constitute persecution as
they pursued the legitimate aim of enforcing the obligation to serve
in the army. A penalty for the attack on the officer, which was a
punishable act, did not constitute persecution either. On 27 April
1994 the Administrative Court (Verwaltungsgerichtshof) dismissed the
applicant's complaint.
On 31 August 1993 the Hollabrunn District Administrative
Authority (Bezirkshauptmannschaft) issued a residence ban (Aufenthalts-
verbot) based on S. 18 paras. 1 and 2 subpara. 1 of the Aliens Act
(Fremdengesetz) against the applicant. The Authority noted that the
applicant had, on 1 July 1993, been convicted of burglary by the Vienna
Regional Criminal Court and had been sentenced to two years'
imprisonment. The judgment had become legally effective. The Authority
found that, therefore, the applicant's residence would disturb public
order or, eventually, endanger national security. On 27 September 1993
the Lower Austrian Security Directorate (Sicherheitsdirektion)
dismissed the applicant's appeal. On 14 April 1994 the Administrative
Court dismissed his complaint.
Also on 31 August 1993, the Hollabrunn District Administrative
Authority dismissed the applicant's request under S. 54 Aliens Act to
render a declaratory decision that his expulsion to former Yugoslavia
was not permitted (Feststellung der Unzulässigkeit der Abschiebung) on
the ground that he would risk to be sentenced to death for desertion
or for having knocked down an officer, after he had had to watch, among
other atrocities, how two children were thrown alive into an oven. In
addition the applicant had submitted that he feared persecution because
the officer, whom he had attacked had a high position in a party of the
extreme right.
The Authority relied on S. 37 of the Aliens Act. This provision
prohibits the expulsion of an alien to a State, inter alia, if there
are firm reasons to believe that in that State he would be subject to
capital punishment or that he would be persecuted within the meaning
of the Geneva Convention on the Status of Refugees. The Authority noted
that the applicant's request for asylum had been rejected at first
instance, but that the appeal proceedings were still pending. With a
view to the applicant's allegation that he would risk capital
punishment for desertion or for the attack on the officer, the
Authority considered that desertion was punishable with several months'
imprisonment and in aggravated cases with one to two years'
imprisonment under the Yugoslav Military Service Act. Although the
attack on the officer would lead to more severe punishment, the
application of a death sentence was in any case excluded.
On 27 October 1993 the Lower Austrian Security Directorate, on
the applicant's appeal, upheld the District Authority's decision. The
Directorate confirmed the District Administrative Authority's view that
the applicant did not risk capital punishment for desertion or for the
attack on the officer. The Authority also referred to the asylum
proceedings, which had meanwhile been concluded at the appeal stage.
It noted inter alia that the applicant had only filed a request for
asylum six months after he came to Austria. Moreover, he had given
different accounts of his attack on the officer, in that, in his
request for asylum, he had submitted to have shot him, while in the
proceedings at issue he had claimed to have injured him. In conclusion,
the Authority considered that the applicant failed to show that he had
reasonable grounds to fear persecution if returned to former
Yugoslavia.
On 20 January 1994 the applicant filed a complaint with the
Administrative Court. He alleged that the authorities had wrongly
applied S. 37 of the Aliens Act. He submitted, in particular, that he
would risk being sentenced to death without trial or at least without
a fair trial, as the officer shot by him was a member of a party of the
extreme right. There were reasons to fear that his execution would be
ordered immediately after his return.
On 3 March 1994 the Administrative Court rejected the applicant's
complaint for defects as to formal requirements. On 1 June 1994 the
Administrative Court also rejected his request for reinstatement
(Wiedereinsetzung) for defects as to formal requirements.
B. Relevant domestic law
According to S. 18 para. 1 of the Aliens Act (Fremdengesetz) a
residence ban (Aufenthaltsverbot) may be issued against an alien, if
there are reasonable grounds to believe that his stay will disturb
public order or security (subpara. 1) or that it will be contrary to
public interest as provided for in Article 8 para. 2 of the European
Convention for the Protection of Human Rights and Fundamental Freedoms
(subpara. 2). Paragraph 2 of S. 18 illustrates cases in which
"reasonable grounds" within the meaning of para. 1 are given, e.g. if
an alien has been sentenced to more than three months' imprisonment by
an Austrian Court, and this judgment has become legally effective
(subpara. 1).
S. 22 states that, once the residence ban has become legally
effective, the alien is obliged to leave the territory of the Federal
Republic immediately. S. 36 deals with cases in which the authorities
may resort to expulsion (Abschiebung) to enforce a residence ban
against an alien, e.g. if the surveillance of his departure appears
necessary in the interest of public order or security, or if there are
reasonable grounds to believe that he will not fulfil his obligation
to leave.
S. 37 deals with cases where it is prohibited to expel an alien.
Para. 1 states that an alien may not be expelled to a 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. Para. 2 refers to Article 33 of the Geneva Convention
on the Status of Refugees, and states 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 the grounds of his race,
religion, nationality or adherence to a social group or on the grounds
of his political opinion.
S. 54 para. 1 provides 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. According
to para. 2 such a request may, inter alia, be made during proceedings
concerning the issuance of a residence ban. The alien has to be
informed timely of the possibility to make the request.
COMPLAINTS
The applicant complains under Articles 2 and 3 of the Convention
that his expulsion to former Yugoslavia would expose him to the risk
of being executed. He argues that, even assuming that he would not be
sentenced to death for desertion or for the attack on the officer, he
had to fear for his life as the extremist party to which the officer
belonged was known to kill their adversaries. Moreover, he submits
that he would risk being persecuted for his political convictions.
THE LAW
1. The applicant complains that, if he is expelled to former
Yugoslavia he risks being sentenced to death for desertion or for
having attacked an officer, or to be killed by the extremist party to
which the officer belongs. Moreover, he submits that he risks being
persecuted for his political convictions. He invokes Articles 2 and 3
(Art. 2, 3) of the Convention.
2. The Commission recalls that, although Article 2 (Art. 2) of the
Convention does not prohibit capital punishment, Article 1 of Protocol
No. 6 (P6-1) provides that the death penalty shall be abolished and
that no one shall be condemned to such a penalty or be executed. The
mere allegation, otherwise unsubstantiated, by the applicant that he
may be subject to the risk of being sentenced to death or of being
executed, does not suffice, however, to bring an expulsion measure
within the ambit of the latter provision.
3. However, the applicant's complaints may fall within the scope of
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. 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).
In the present case the applicant was refused asylum and a
residence ban was issued against him. Moreover, the Austrian
authorities, on the applicant's request, dealt with the question wether
his expulsion to former Yugoslavia would be prohibited under S. 37 of
the Aliens Act on the ground that he would risk to be subjected to
inhuman treatment or punishment or to capital punishment, or to
persecution within the meaning of the Geneva Convention on the Status
of Refugees. They found that he would risk to be sentenced to up to two
years imprisonment for desertion under the Yugoslav Military Service
Act or eventually to a longer term for the attack on an officer.
However, the Austrian authorities found that the applicant would not
risk capital punishment.
The Commission itself does not consider it established that the
applicant would face capital punishment for desertion or for having
attacked an officer, if returned to former Yugoslavia. Concerning his
possible imprisonment for these offences, the Commission does not find
such a penalty so severe as to raise an issue under Article 3 (Art. 3)
of the Convention (No. 12364/86, Dec. 17.10.86, D.R. 50 p. 280;
No. 11017/84, Dec. 13.3.86, D.R. 46 p. 176; 22325/93, Dec. 8.9.93,
unpublished).
As regards the applicant's allegation that he would be killed by
the extremist group to which the officer attacked by him belonged, the
Commission notes that the applicant gave different accounts of the
incident at issue in the asylum proceedings and in the proceedings
under the Aliens Act. In particular it remains unclear whether he only
injured the officer or whether he shot him. Moreover, the applicant
failed to make specific submissions about the risk of being persecuted
by this group upon his return to former Yugoslavia.
The Commission further finds no substantiation of the applicant's
allegation that he would be persecuted for his political convictions
if being expelled to his country.
In conclusion, the Commission does not consider it established
that the applicant would be exposed to a real risk of being subjected
to treatment contrary to Article 3 (Art. 3) of the Convention on his
return to former Yugoslavia.
In these circumstances the application must be rejected as
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission, by a majority
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (A. WEITZEL)
Full & Egal Universal Law Academy