AS TO THE ADMISSIBILITY OF
Application No. 25664/94
by Funsu MBEMBA
against Austria
The European Commission of Human Rights sitting in private on
19 January 1995, the following members being present:
MM. C.A. NØRGAARD, President
H. DANELIUS
C.L. ROZAKIS
E. BUSUTTIL
G. JÖRUNDSSON
S. TRECHSEL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
E. KONSTANTINOV
G. RESS
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 12 November 1994
by Funsu Mbemba against Austria and registered on 14 November 1994
under file No. 25664/94;
Having regard to :
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
30 November 1994 as well as their further observations submitted
on 2 January 1995 and the observations in reply submitted by the
applicant on 6 December 1994 and 10 January 1995;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the parties, may be
summarised as follows.
The applicant, born in 1934, is a Zairese national. When lodging
his application, he was detained at the Vienna Police Prison, with a
view to his expulsion to Zaire. He has meanwhile been released. In
the proceedings before the Commission he is represented by
Mr. G. Liedermann, a lawyer practising in Vienna.
A. Particular circumstances of the case
In May 1990, the applicant went to Vienna as the private
secretary of the Zairese ambassador.
In 1992 the applicant filed a request for asylum. According to
the applicant this request was, on 6 May 1992, submitted to the Vienna
Police Directorate, which was at that time competent to deal with it,
and was subsequently, after a change in law, transmitted to the Federal
Office for Asylum (Bundesasylamt). According to the Government, the
applicant filed his request for asylum on 24 September 1992.
On 24 September and on 1 October 1992, the applicant was heard
by the Federal Office for Asylum. He submitted in particular that,
despite his work at the embassy, he held a critical view of the Zairese
regime. In December 1991, when he was ordered to go on a mission to
Zaire, another employee of the embassy leaked a copy of a secret telex
to him, which had been sent by the Zairese secret service to the
ambassador, and mentioned him as a subversive element. Thereupon, he
refused to go to Zaire and was dismissed on 2 January 1992. One month
later, the ambassador reinstated him, but did not pay him any more.
In June 1992 he obtained a copy of another secret telex to the
ambassador, having mainly the same contents as the first one. He was
still formally employed by the embassy, but had been told that he need
not come to work any more and had recently been refused entry to the
building. The applicant stated that he would be able to submit the
above-mentioned copies of the secret telexes.
The applicant expressed his fear of being killed in case he had
to return to Zaire, as he was known to the secret service as a critic
of the regime. Moreover, he had been suspected of being the author of
leaflets, which had been distributed in Vienna, and which criticised
Mobutu's regime. His wife, who had returned to Zaire in November 1991,
had been refused permission to travel back to Austria and her passport
had been taken. He had been informed that she had fled to the Congo.
He had obtained a new passport for her at the embassy, which he will
send to her as soon as he has her address.
On 6 October 1992 the Federal Office for Asylum rejected the
applicant's request. It found that the applicant, who was still an
employee of the Zairese embassy, had not been subject to any specific
measures of persecution. The mere fact that he had a critical view of
the Zairese regime did not suffice for recognising him as a refugee.
On 22 October 1992 the applicant filed an appeal with the Federal
Ministry for the Interior (Bundesministerium für Inneres). He
submitted in particular that he was not only a critic of the regime,
but a member of Prime Minister Tshisekedi's opposition party. The
officer of the security service, present at the embassy, had reported
him as such to the Zairese authorities. He had stopped working at the
embassy in September. Before that, his salary had been blocked in
order to force him to return home, where he would risk persecution by
the secret service or the political police.
On 7 May 1993 the applicant had submitted a number of documents
in support of his appeal. They included the following:
- a personal letter of 23 April 1993 from the First Secretary of
the Zairese embassy in Paris (addressing the applicant as "Dear
brother" and transmitting a secret message to him);
- a telefax of 10 April 1993, allegedly sent with the above
letter, entitled "Transmis de Présidence", addressed to several
Zairese embassies in Europe, including the one in Vienna, calling
for the repatriation or, if not possible, for the taking of
"radical and urgent measures" against a number of persons,
including the applicant, and stating that the persons listed were
dangerous, subversive elements;
- a summons dated 14 April 1993 to appear before the Zairese
immigration authorities;
- a letter from the Secretary General of the Union pour la
Démocratie et le Progrès Social (UDPS) in Kinshasa of 10 January
1993 addressed to the Zairese Socialist Party in Vienna, for the
attention of its president, Mr. Ngongo, informing the latter that
the applicant was an active member of the UDPS and asking him to
intervene in favour of the applicant before the Austrian
authorities.
On 12 May 1993 the Federal Ministry for the Interior dismissed
the applicant's appeal. The Ministry found that the applicant had
worked at the Zairese embassy in Vienna, even after he had refused to
go on a mission to his home country. It concluded that the ambassador
did not consider the applicant's criticism of the regime as
significant. Therefore, there was no reason to assume that he would
be persecuted upon his return to Zaire. Moreover, the proceedings had
not shown that he had voiced his criticisms publicly and thereby drawn
the authorities' attention to himself. His submissions, that his
wife's passport was taken away from her, upon her return to Zaire, were
not credible, as he had apparently been able to obtain a new passport
for her at the embassy.
As regards the documents submitted by the applicant, the Ministry
found that they did not support the allegation that he would be subject
to prosecution in Zaire, as it was unclear how he had obtained them.
Moreover, the wording of the letter of 23 April 1993 from the Zairese
embassy in Paris indicated that it was not an official document but a
forgery. The summons of 14 April 1993 to appear before the Zairese
immigration authorities did not suffice to establish his status as a
refugee.
Subsequently, the applicant, now represented by counsel, lodged
a complaint with the Administrative Court (Verwaltungsgerichtshof).
On 24 February 1994 the Court, on the applicant's request, granted the
complaint suspensive effect.
Meanwhile, on 8 January 1994 the Vienna Police Directorate
(Bundespolizeidirektion) issued a residence ban (Aufenthaltsverbot),
valid for five years, against the applicant on the ground that he was
illegally resident in Austria since his request for asylum had been
rejected at second instance, and that he did not possess the necessary
means for his maintenance.
On 27 January 1994 the Vienna Police Directorate, on the
applicant's request of 8 January 1994, rendered a declaratory decision
under S. 54 of the Aliens Act (Fremdengesetz). Referring to the
results of the asylum proceedings, the Police Directorate found that
the applicant's expulsion to Zaire would not be contrary to 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 inhuman treatment or punishment or
capital punishment, or that he would be persecuted within the meaning
of the Geneva Convention on the Status of Refugees.
According to the applicant, this decision was not served on him.
However, his request for a transfer of jurisdiction (Devolutionsantrag)
was rejected by the Vienna Security Directorate on 8 November 1994.
It found that the decision of 27 January 1994 by the Vienna Police
Directorate had been duly deposited at the competent post office and
that it had apparently been collected by the applicant. The applicant
had not duly notified the authority that he had nominated another
person to receive service.
On 19 May 1994 the Vienna Security Directorate (Sicherheits-
direktion) dismissed the applicant's appeal against the residence ban
of 8 January 1994, as being lodged out of time.
On 31 May 1994 the Vienna Police Directorate ordered the
applicant's detention with a view to his expulsion (Schubhaft). It
found that the residence ban against him had become enforceable on
27 May 1994 and that he had not complied with his obligation to leave
Austria immediately.
On 4 July 1994 the applicant was arrested and taken into
detention at the Vienna Police Prison, with a view to his expulsion.
On 8 July 1994 the applicant filed a request for a declaratory
decision under S. 37 of the Aliens Act that his expulsion to Zaire
would expose him to a risk of being killed or sentenced to death, and
a request for a stay in his expulsion (Abschiebungsaufschub) on this
ground.
In support of his request, the applicant, apart from the
documents he had already submitted in the asylum proceedings, submitted
a number of new documents. These included inter alia:
- two summonses to appear before the Zairese Civil Guard in
Kinshasa on 11 January 1994 and on 17 February 1994,
respectively, stating that he will be informed on the spot
about the reasons for summoning him ("motif: vous sera
communiqué sur place");
- an arrest warrant (mandat d'amener) against the applicant
from the Zairese Civil Guard dated 15 March 1994, on the
suspicion of distributing subversive writings and of
provoking civil disobedience ("Distribution tracts
subversifs, Provocation à la désobéissance civile");
- a search warrant from the Civil Guard dated 10 July 1994;
- a letter, dated Kinshasa 11 July 1994, from the First
Secretary of the UDPS and addressed to the President of the
Zairese Socialist Party in Vienna, Mr. Ngongo. The author
states that he has been informed about the applicant's
arrest by the international secretariat of the UDPS in
Brussels. He further states that he encloses documents,
which show that the applicant is persecuted by the
political police, and asks Mr. Ngongo to transmit these
documents to the Austrian authorities.
On 14 July 1994 the Vienna Independent Administrative Senate
(Unabhängiger Verwaltungssenat) dismissed the applicant's complaint of
11 July 1994, concerning the lawfulness of his detention. It found
that the applicant was entitled to stay in Austria until the
termination of the Administrative Court proceedings, on the ground that
this court, on 24 February 1994, had granted his complaint in the
asylum proceedings suspensive effect. However, such a right to
temporary residence did not prevent the authorities from issuing a
residence ban, which would become enforceable as soon as the temporary
right to residence ended. Nor did it prevent them from taking the
applicant into detention with a view to his expulsion, which in the
present case served the purpose of securing his expulsion and was
necessary as he did not have the means for his maintenance.
Subsequently, the applicant filed further complaints relating to the
lawfulness of his detention with a view to his expulsion on 21 July,
2 August and 14 September 1994, which were dismissed by the Vienna
Independent Administrative Senate. The latest of these decisions was
issued on 23 September 1994.
On 19 October 1994 the Administrative Court, referring to the
Constitutional Court's judgment of 1 July 1994 (which had found that
the relevant provision of the Asylum Act, limiting the scope of review
of the Ministry of the Interior and the Administrative Court in the
appeal proceedings, was unconstitutional) quashed the Ministry's
decision of 12 May 1993. The applicant's asylum proceedings are now
pending again before the Ministry of the Interior.
On 4 November 1994 the Zairese embassy in Brussels, at the
Austrian authorities' request, issued a certificate confirming that the
applicant would be allowed entry into Zaire (Heimreisezertifikat).
On 7 November 1994 the Vienna Police Directorate rejected the
applicant's request of 8 July 1994 to stay his expulsion. It
considered that it had already found in its decision of 27 January 1994
that the applicant's expulsion would not be contrary to S. 37 of the
Aliens Act. As regards the documents submitted by the applicant, it
found that the letter of 23 April 1993 of the Zairese embassy in Paris
was not worded like an official document and appeared to be a forgery.
The same had to be assumed as regards the telex entitled "Transmis de
Présidence", which was allegedly transmitted to the applicant with the
said letter. As regards the documents which had allegedly been
transmitted by Mr. Ngongo, the President of the Zairese Socialist
Party, namely the two summonses to appear before the Civil Guard, the
arrest warrant and the search warrant, their credibility was also open
to doubt. It had to be assumed that the Zairese authorities knew that
the applicant was resident abroad. Thus, it was inexplicable why they
should try to summon him to Kinshasa. Moreover, the Police Directorate
considered that the documents appeared to be for the internal use of
the police and that the applicant had failed to give a satisfactory
explanation as to how he had obtained them.
On 16 November 1994 the applicant was released.
On 21 and 25 November 1994 the applicant was heard by the Vienna
Office of the United Nations High Commissioner for Refugees.
On 24 November 1994 the Ministry for the Interior requested the
Federal Office for Asylum to conduct a further hearing with the
applicant, relating to his request for asylum. It added a list of
forty-six questions which should be put to the applicant. They
concerned in particular the following issues: what were his position
and duties at the embassy; what exactly were his political activities;
who had warned him not to return to Zaire and how had he obtained the
secret telexes; how had he obtained the letter of 23 April 1993 by the
First Secretary of the Zairese embassy in Paris; by whom would he be
persecuted if returned to Zaire? The Ministry also pointed out that
the applicant was to be given the possibility to make additional
submissions in view of his appeal.
On 28 November 1994, the Federal Office for Asylum heard the
applicant. The hearing, which followed the catalogue of questions
prepared by the Ministry for the Interior, was continued on 1 and
5 December 1994.
The applicant submitted in particular that he had been the
private secretary of ambassador B.. His duties included the typing of
secret reports which the ambassador sent to the President or to the
secret service and the filing of papers, including confidential
messages. Further, the applicant stated that he had been ambassador
B.'s secretary since 1972 and had been a member, though not an active
one, of the MPR (Mouvement Populaire de la Révolution). He noted that
he would not have obtained his job otherwise, and that most of today's
opposition leaders had once been members of the MPR. The UDPS had been
founded in 1985 and he had started to pass on information to them when
he worked at the Zairese embassy in France (1988-1990). He gave secret
documents to the cook of the embassy, who transmitted them to members
of the UDPS. He himself never contacted UDPS members personally and
never went to UDPS meetings as he was more rigorously controlled by the
secret service. The applicant submitted that he was persecuted by
President Mobutu's secret service. He considered that he would be
arrested and tortured or that he might "disappear" if returned to
Zaire.
As regards the secret telexes the applicant submitted that L.,
the employee handling the telex machine, had, when he had told him that
he was to be sent to Zaire, given him a copy of the telex of
21 December 1991. L. had also given him a copy of the telex of 14 May
1992. He did not know of L.'s present whereabouts, because as far as
he knew the Zairese embassy in Vienna had been closed. As regards the
letter of 23 April 1993, he submitted that it was a private letter
which had been sent to his private address.
On 12 December 1994 the applicant made additional submissions in
view of his appeal. He submitted inter alia that the Ministry for the
Interior, in the first set of proceedings, had, without hearing him on
this point, dismissed the credibility of the documents submitted by
him.
B. Relevant domestic law
S. 37 of the Aliens Act (Fremdengesetz) deals with cases where
it is prohibited to expel an alien. Paragraph 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. Paragraph 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. Paragraph 6 provides that 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 of the Aliens Act 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 paragraphs
1 or 2. According to paragraph 2, such a request may, inter alia, be
made during proceedings concerning the issue of a residence ban. The
alien has to be informed promptly of the possibility to make the
request.
COMPLAINTS
1. The applicant complains under Article 3 of the Convention about
the Austrian authorities' decision to expel him to Zaire. He submits
in particular that he would face arrest, torture or even being killed
on the ground that he used his position in the Zairese embassy to pass
on information to the UDPS, an opposition party, of which he is a
member.
2. In his observations of 6 December 1994 and of 10 January 1995 the
applicant further complains that his detention with a view to his
expulsion to Zaire was contrary to Article 3 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 12 November 1994 and registered
on 14 November 1994.
On 14 November 1994 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, pursuant to Rule 34
para. 3 and Rule 48 para. 2 (b) of the Rules of Procedure, for
observations on admissibility and merits.
On 30 November 1994 the Government submitted their observations,
to which the applicant replied on 6 December 1994.
On 9 December 1994 the Commission decided, pursuant to Rule 50
(a) of the Rules of Procedure, to invite the respondent Government to
submit further observations on the admissibility and merits of the
application, and to prolong the application of Rule 36 of its Rules of
Procedure.
On 2 January 1995 the Government submitted their further
observations, to which the applicant replied on 10 January 1995.
THE LAW
The applicant complains under Article 3 (Art. 3) of the
Convention about the Austrian authorities' decision to expel him to
Zaire.
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."
a. Preliminary questions under Articles 25 and 26
(Art. 25, 26) of the Convention
The Government submit that, on 16 November 1994, following the
indication under Rule 36 of the Commission's Rules of Procedure, the
applicant was released from detention. They refer in particular to
S. 37 para. 6 of the Austrian Aliens Act, which provides that an
expulsion may not be carried out as long as it would be contrary to an
interim measure taken by the European Commission of Human Rights.
Thus, the applicant's expulsion is not imminent any more and he can,
therefore, no longer claim to be a victim of a violation of his
Convention rights within the meaning of Article 25 (Art. 25) of the
Convention.
The Government further submit that the applicant is at present
illegally residing in Austria. There is a legally effective residence
ban against him. However, he may not be expelled as long as the
indication under Rule 36 of the Commission's Rules of Procedure is
upheld.
The applicant submits in particular that the mere fact that he
has been released did not change his legal status. He argues that the
residence ban against him is still in force and can be enforced without
any further decision. Moreover, he does not have a right to temporary
residence under the Asylum Act for the duration of his asylum
proceedings. Finally, he considers that the Austrian authorities do
not "de facto" tolerate his residence in Austria, as the preparations
for his expulsion had been made and he had only been released because
the Commission had given an indication under Rule 36 of its Rules of
Procedure.
The Commission finds that the applicant can still claim to be a
victim within the meaning of Article 25 (Art. 25) of the Convention.
In this respect, the Commission notes in particular that the residence
ban of 8 January 1994 against him is still in force. Further, it
appears that the asylum proceedings, which are, following the
Administrative Court's judgment, pending again before the Ministry for
the Interior, do not give the applicant a temporary right to residence.
Given that the Austrian authorities had already prepared the
applicant's expulsion, which was only stopped following the
Commission's indication under Rule 36 of its Rules of Procedure, it
cannot be assumed that his residence is "de facto" tolerated by the
Austrian authorities.
Further, the Commission finds, for the aforementioned reasons,
that the asylum proceedings, which are still pending, cannot be
regarded as an effective remedy within the meaning of Article 26
(Art. 26) of the Convention in respect of the applicant's expulsion.
The Austrian authorities, in separate proceedings under SS. 37 and
54 of the Aliens Act, which are already terminated, found that the
applicant's expulsion to Zaire would be acceptable. The Commission's
finding is confirmed by the fact that the Government have not objected
to the admissibility of the present application for non-exhaustion of
domestic remedies.
b. The merits
As regards the merits of the application, the Government contend
that the applicant's allegations are unfounded.
The applicant submits that he would face arrest, torture or even
death on the ground that he used his position as secretary of the
Zairese ambassador in Vienna to pass on information to the UDPS, an
opposition party, of which he is a member.
After an examination of this issue in the light of the parties'
submissions, the Commission considers that it raises questions of fact
and law which can only be determined by an examination of the merits.
It follows that this complaint cannot be declared inadmissible as being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention. No other grounds for declaring it
inadmissible have been established.
2. The applicant further complains that his detention with a view
to his expulsion to Zaire was contrary to Article 3 (Art. 3) of the
Convention.
The Commission notes that Article 5 para. 1 (f) (Art. 5-1-f) of
the Convention provides for the lawful arrest or detention of a person
against whom action is being taken with a view to deportation or
extradition. In the present case the Vienna Independent Administrative
Senate, in its decision of 14 July 1994 and subsequent decisions, found
that the applicant's detention with a view to his expulsion was lawful.
The Commission finds that the applicant failed to show that his
detention involved suffering or humiliation which went beyond the
inevitable element of suffering or humiliation connected with the
legitimate deprivation of liberty (see, mutatis mutandis, Eur. Court
H.R. Soering judgment of 7 July 1989, Series A no. 161. p. 39,
para. 100).
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.
For these reasons, the Commission, unanimously,
DECLARES ADMISSIBLE without prejudging the merits the applicant's
complaint that his expulsion to Zaire would expose him to a real risk
of torture or inhuman or degrading treatment in that country;
DECLARES INADMISSIBLE the remainder of the application.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy