AS TO THE ADMISSIBILITY OF
Application No. 31007/96
by Fadil MUHADRI
against Austria
The European Commission of Human Rights sitting in private on
20 October 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
H. DANELIUS
F. MARTINEZ
C.L. ROZAKIS
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
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
Mrs M. HION
MM R. NICOLINI
A. ARABADJIEV
Mr M. de SALVIA, 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 4 April 1996 by
Fadil MUHADRI against Austria and registered on 15 April 1996 under
file No. 31007/96;
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 1973, is a Kosovo-Albanian and a national
of Yugoslavia. He is currently residing in Baden, Lower Austria.
Before the Commission he is represented by Mr. H. Pochieser, a lawyer
practising in Vienna.
The facts, as submitted by the applicant, may be summarised as
follows.
A. Particular circumstances of the case
On 2 September 1991 the applicant came to Austria and requested
asylum on 3 September 1991. The applicant submitted that he had left
Yugoslavia when the civil war broke out, as he did not want to serve
in the Serbian army which had always oppressed the Albanian minority
living in Kosovo, to which he belonged. He explicitly stated that he
had not yet received a call-up order. On 22 January 1992 the Lower
Austrian Public Security Authority (Sicherheitsdirektion) dismissed the
applicant's asylum request. On 12 October 1993 the Federal Ministry for
the Interior (Bundesministerium für Inneres) dismissed his appeal, in
which he had submitted inter alia that an attempt to serve a call-up
order on him had been made before he left the country. On
18 January 1995 the Administrative Court (Verwaltungsgerichtshof)
quashed the decision of the Ministry for the Interior. On
11 December 1995 the Ministry for the Interior again dismissed the
applicant's appeal. It found, in particular, that his submissions as
to whether or not he had been called up to serve in the army were
vague and unsubstantiated. Even assuming that the army had intended to
conscript the applicant, there were no indications that he would suffer
persecution within the meaning of the asylum law. On 13 May 1996 the
Constitutional Court (Verfassungsgerichtshof) refused to entertain the
complaint and referred the case to the Administrative Court. It appears
from the applicant's submissions that the Administrative Court has not
granted the complaint suspensive effect and that the proceedings are
still pending.
On 22 October 1993 the applicant requested the Tulln District
Administrative Authority (Bezirkshauptmannschaft) to take a declaratory
decision under S. 54 of the Aliens Act (Fremdengesetz) to the effect
that his expulsion to Yugoslavia would be inadmissible. He submitted
that he would run the risk of inhuman treatment and imprisonment. On
11 November 1993 the Tulln District Administrative Authority dismissed
the applicant's request.
On 10 May 1994 the Lower Austrian Public Security Authority
dismissed the applicant's appeal. It referred in particular to a report
of the International Helsinki Federation for Human Rights according to
which the situation of Kosovo-Albanians had deteriorated since 1989.
Until the end of 1992 60,000 Albanians were believed to have left the
country in order to evade military service. Deserters risked one to
fifteen years' imprisonment. However, the death penalty, applicable
in times of war, had been abolished by moratorium of 4 February 1993.
Further, it appeared that proceedings were only instituted against
reserve officers, though Kosovo-Albanian officers might face a higher
risk as they were considered to have organised a resistance movement.
However, the terms of imprisonment applied were usually between one and
two years. The authority stated that a punishment for evading military
service did not constitute a persecution either under the Geneva
Convention or under Section 37 para. 2 of the Aliens Act. Moreover,
the authority, referring to the asylum proceedings, found that it was
not even established whether the applicant had received a call-up
order. In any case, having regard to the above findings, there were
no serious reasons to believe that he would be subjected to ill-
treatment upon his return. On 28 February 1995 the Constitutional Court
refused to entertain the complaint and referred it to the
Administrative Court. On 7 September 1995, the Administrative Court
dismissed the applicant's complaint.
On 23 June 1994 the Tulln District Administrative Authority
(Bezirkshauptmannschaft) issued a residence ban against the applicant,
valid for ten years. It found that he had, in May 1993, when travelling
from the Czech Republic, illegally re-entered Austria, using his
brother's passport and giving his brother's name and identity upon
being questioned by the authorities. On 10 October 1994 the Lower
Austrian Public Security Authority dismissed the applicant's appeal.
On 26 February 1996 the Constitutional Court refused to entertain the
applicant's complaint and subsequently referred the case to the
Administrative Court. Upon the applicant's request, the Administrative
Court granted the complaint suspensive effect.
On 16 April 1997 the Administrative Court dismissed the
applicant's complaint. It noted that it was uncontested that the
applicant had used his brother's passport and identity when re-
entering Austria in May 1993. Further, the Court noted that the
applicant had been found guilty of the administrative offence of aiding
and abetting unlawful immigration (Schlepperei). In these circumstances
it found that the residence ban was justified in the interests of
public safety as provided for under Article 8 para. 2 of the European
Convention of Human Rights. The Administrative Court confirmed the
finding of the Lower Austrian Public Security Authority that the
interests in the maintenance of public safety outweighed the
applicant's private interests in staying in Austria.
B. Relevant domestic law
Section 37 of the 1992 Aliens Act (Fremdengesetz 1992) forbids
the expulsion of an alien to a State where there are solid reasons to
believe that he will be exposed to the risk of inhuman treatment or
punishment or the death penalty (para. 1); or that his life or liberty
will be at risk on account of his race, religion, nationality,
membership of a particular social group or political opinion (para. 2,
which refers to Article 33 para. 1 of the Geneva Convention).
Under Section 54 the competent authority has to determine, at the
alien's request, whether there are solid reasons to believe that he
would be at risk, within the meaning of Section 37 para. 1 or para. 2,
in a particular State named by him.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 4 April 1996 and registered on
15 April 1996.
On 19 April 1996 the Commission decided not to apply Rule 36 of
its Rules of Procedure.
COMPLAINTS
The applicant complains that, if he were returned to Yugoslavia,
he risks to be arrested, imprisoned or even sentenced to death for
having evaded military service or to be ill-treated on account of his
Albanian origin. He submits that the moratorium by which the death
penalty has been suspended could be revoked at any time. He invokes
Articles 3 and 5 of the Convention as well as Article 1 of
Protocol No. 6.
THE LAW
1. The applicant complains that his expulsion to Yugoslavia would
expose him to the risk of being arrested, ill-treated or sentenced to
death. He invokes Articles 3 and 5 (Art. 3, 5) of the Convention and
Article 1 of Protocol No. 6 (P6-1).
The Commission notes that three sets of proceedings were
conducted by the Austrian authorities. In the asylum proceedings the
applicant's asylum request was dismissed by the Ministry for the
Interior. The proceedings are still pending before the Administrative
Court. However, it appears that the Administrative Court has not
granted the complaint suspensive effect. In a second set of proceedings
the applicant requested that a declaratory decision be taken under S.
54 of the Aliens Act that his expulsion to Yugoslavia would be
inadmissible. This request was finally dismissed by the Administrative
Court on 7 September 1995. In a third set of proceedings a residence
ban valid for ten years was issued against the applicant. This decision
was confirmed by the Administrative Court on 16 April 1997.
2. The Commission recalls that 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 penalty or executed. The question,
therefore, arises whether a contracting State's responsibility may be
engaged under this Article where an alien is to be expelled to a State
where he is seriously at risk of being sentenced to death (cf. No.
32025/96, Dec. 25.10.96, D.R. 87, p. 173 at p. 181). In the present
case, however, it is undisputed that the death penalty was suspended
in Yugoslavia by a moratorium in 1993. The mere allegation, otherwise
unsubstantiated, that the said moratorium could be revoked at any time
does not suffice to bring an expulsion measure within the ambit of
Article 1 of Protocol No. 6 (P6-1).
3. However, the applicant's complaints that, upon his return to
Yugoslavia, he risks to be arrested and imprisoned for having evaded
military service or to be ill-treated on account of his Albanian origin
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, as a matter of well-established international law and subject
to their treaty obligations including their obligations under the
Convention to control the entry, residence and expulsion of aliens.
It also notes that the right to political asylum is not contained in
either the Convention or its Protocols. 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 (see Eur. Court HR, Ahmed v. Austria judgment of 17 December
1996, Reports 1996-VI, No. 26, paras. 38-39; Vilvarajah and Others v.
the United Kingdom judgment of 30 October 1991, Series A no. 215, p.
34, paras. 102-103).
The Commission notes the finding of the Lower Austrian Public
Security Authority in the proceedings under S. 54 of the Aliens Act
that it has not been established whether the applicant had received a
call-up order before he had left Yugoslavia in 1991. In its decision
of 10 May 1994 the Lower Austrian Public Security Authority dealt in
detail with the position of deserters and the punishment they possibly
have to expect and came to the conclusion that there was no reason to
believe that the applicant would be subjected to ill-treatment let
alone that he would be sentenced to death upon his return. Even
assuming that the applicant risks imprisonment for having evaded
military service, the Commission does not find such a penalty so severe
as to raise an issue under Article 3 (Art. 3) of the Convention (cf.
No. 11017/84, Dec. 13.3.86, D.R. 46, p. 176 at p. 181; No. 22325/93,
Dec. 8.9.93, unpublished). As concerns the applicant's allegation that
he might be ill-treated on account of his Albanian origin, the
Commission recalls that a mere possibility of ill-treatment is not in
itself sufficient to give rise to a breach of Article 3 (Art. 3) of the
Convention (Vilvarajah and Others v. the United Kingdom judgment, loc.
cit., p. 37, para. 111).
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 upon his
return to Yugoslavia. The Commission finally considers that no separate
issue arises under Article 5 (Art. 5) of the Convention.
It follows that 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 THE APPLICATION INADMISSIBLE.
M. de SALVIA S. TRECHSEL
Secretary President
to the Commission of the Commission
Full & Egal Universal Law Academy