AS TO THE ADMISSIBILITY OF
Application No. 25169/94
by Madjid MUSA
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 12 April 1996, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
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 15 July 1994 by
Madjid MUSA against Austria and registered on 16 September 1994 under
file No. 25169/94;
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 Syrian citizen, born in 1970. He is presently
staying in Syria at an unknown address. In the proceedings before the
Commission he is represented by Mr. H. Blum, a lawyer practising in
Linz.
The facts of the case, as they have been submitted by the
applicant may be summarised as follows.
A. Particular circumstances of the case
On 21 February 1993 the applicant arrived in Austria. On
22 February he filed an asylum request with the Federal Asylum Office
(Bundesasylamt).
On the same day he was heard by the Asylum Office. He stated that
he was of Kurdish origin and member of the Jazidi religious group and
for these reasons persecuted by the ruling BAATH-party. In 1989 he had
been detained by the police for four days because of his contacts with
the ISAKFS, a pro-kurdish political party. During his detention he had
been beaten by police officers. In March 1990 he had been detained
again for two days because he had taught the Kurdish language. In
October 1992 members of the ISAKFS had been arrested. He had left his
home for Damascus where he distributed political leaflets. He had been
informed that at his home the police was looking for him and went to
Afrin where he had hidden at a friend's place until 14 February 1993.
He then had gone to Turkey and from there to Austria. He further
stated that he had finished high school in Syria and had studied for
two years before leaving the country.
On 23 February 1993 the Asylum Office dismissed the applicant's
asylum request. It found that the applicant had merely invoked the
general situation of Kurds in Syria but had not shown the existence of
any relevant acts of persecution directed against himself. On two
occasions he had been detained for a few days and these arrests had
taken place a considerable time before he had decided to leave Syria.
Furthermore the applicant's accounts were nor entirely credible since
he had made contradictory statements in the course of his questioning.
The Asylum Office also decided that an appeal had no suspensive effect.
It further noted that the United Nations High Commissioner for Refugees
had been informed of the proceedings.
On 23 February 1993 the applicant was taken into detention with
a view to his expulsion (Schubhaft). On the same day the applicant
filed a request under Section 54 of the Aliens Act with the Linz
Federal Police Authority (Bundespolizeidirektion) requesting a
declaration that his expulsion to Syria was inadmissible. The Federal
Police Authority, after having heard the applicant, dismissed the
applicant's request on the same day. Referring to the applicant's
statements in the asylum proceedings and the decision of the Asylum
Office, it found that there were no serious grounds to assume that the
applicant would be subject to persecution if expelled to Syria.
On 1 March 1993 the Linz Federal Police Authority issued a
residence prohibition (Aufenthaltsverbot) against the applicant as it
found that after asylum had been refused his stay in Austria was
unlawful.
On 8 March 1993 the applicant, represented by counsel, appealed
against the Federal Asylum Office's decision of 23 February 1993. He
submitted that from the mere fact that he had not left the country
shortly after his arrests in 1989 and 1990 it could not be derived that
he did not risk persecution in Syria.
On 15 March 1993 the applicant appealed against the Federal
Police Authority's decision of 1 March 1993.
On 22 March 1993 the Upper Austria Public Security Authority
(Sicherheitsdirektion) dismissed the appeal against the Federal Police
Authority's decision of 23 February 1993.
On 3 May 1993 the applicant introduced a complaint with the
Constitutional Court (Verfassungsgerichtshof) against the Public
Security Authority's decision of 22 March 1993. He submitted that he
risked persecution if deported to Syria and relied on Article 3 of the
Convention.
On 25 June 1993 the Constitutional Court refused to deal with the
applicant's complaint for lack of prospect of success. On 30 August
1993 the applicant requested that his case be referred to the
Administrative Court (Verwaltungsgerichtshof). On 6 September 1993 the
Constitutional Court did so and on 18 October 1993 the applicant
supplemented his complaint to the Administrative Court.
On 15 December 1993 the Administrative Court rejected the
applicant's complaint. It noted that according to the undisputed
submissions of the responsible authority, the Linz Public Security
Authority, the applicant had been deported to Syria on 1 April 1993.
Thus the applicant, at the time he had introduced the complaint, could
no longer claim to have a genuine interest in having reviewed by the
Administrative Court the admissibility of his expulsion to Syria, since
the expulsion had already been carried out.
On 17 August 1994 the applicant complained to the Administrative
Court about the inactivity of the Federal Minister for the Interior
(Bundesminister für Inneres) in deciding on his appeal against the
Federal Asylum Office's decision of 23 February 1993.
On 14 December 1994 the Minister dismissed the applicant's
appeal. It found that the Asylum Office had acted correctly when it
had dismissed the applicant's asylum request. As regards the
applicant's arrest by the Syrian authorities in 1989 and 1990, the
Minister noted that the applicant had been released within a short
time. Furthermore these events occurred more than two years before he
left Syria and therefore were no longer relevant for assessing a
possible risk of persecution. As regards the applicant's membership
in the Jazidi religious group, the applicant had not substantiated that
any acts of persecution had occurred which were connected to his
membership in the religious group. Also the applicant's story was not
wholly credible because it contained contradictions. It was in
particular implausible that he had left his home in 1992 because the
police was looking for members of the ISAKFS and then had distributed
leaflets of a political content in Damascus, an action which
necessarily would attract the attention of the police.
On 30 January 1995 the applicant introduced a complaint to the
Administrative Court against the Minister's decision of 14 December
1994. On 6 February 1996 the Administrative Court dismissed the
compalaint.
B. Relevant domestic law
Section 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, would be in danger of being subjected to inhuman
treatment or punishment or to capital punishment in that State or that
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 opinions.
Such a request may be made during proceedings concerning the
issue of a deportation order or a residence ban. The alien has to be
informed in time of the possibility to make the request (Section 54
para. 2). An expulsion to the State indicated by the alien may not be
carried out as long as the decision relating to the request under
Section 54 has not become final (Section 54 para. 4).
COMPLAINTS
1. The applicant complains that the refusal of his request for a
declaration under Section 54 of the Aliens Act that his deportation to
Syria was inadmissible, violated his rights under Article 3 of the
Convention.
2. The applicant further complains that the refusal of the
Constitutional Court and the Administrative Court to deal with the
merits of his complaint in the proceedings under Section 54 of the
Aliens Act violated his rights under Article 13 of the Convention.
THE LAW
1. The applicant complains that the refusal of his request for a
declaration under Section 54 of the Aliens Act that his deportation to
Syria was inadmissible, violated his rights under Article 3
(Art. 3) of the Convention.
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."
The Commission recalls that the expulsion by a Contracting State
of an individual may give rise to an issue under Article 3
(Art. 3) of the Convention and hence engage the responsibility 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 treatment prohibited by the said Article 3 (Art. 3) in the
country to which he or she is to be expelled (see No. 12122/86, Dec.
16.10.86, D.R. 50 p. 268; Eur. Court H.R., Cruz Varas judgment of 20
March 1991, Series A no. 201, p. 28, paras. 69-70; Vilvarajah and
Others judgment of 30 October 1991, Series A no. 215, p. 34, para.
103). A mere possibility of ill-treatment is not in itself sufficient
(Vilvarajah and Others judgment, loc. cit., p. 37, para. 111). 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 (Eur. Court H.R., Cruz-Varas and Others judgment of 20 March
1991, Series A no. 201, p. 30, para. 76).
The Commission observes that the Austrian authorities, in
particular the Federal Asylum Office and the police authorities,
refused the applicant's asylum request and his request under Section
54 of the Aliens Act as they found that he had failed to substantiate
a risk of being persecuted in Syria upon his return.
Having regard to the applicant's submissions and on the basis of
the material in the file, the Commission finds that the applicant has
failed to show that his expulsion to Syria would expose him to a real
risk of being subjected to treatment contrary to Article 3 (Art. 3) of
the Convention. Consequently, also the refusal by the Austrian
authorities to acknowledge that such a risk existed cannot be regarded
to be in breach of that provision either.
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 that the refusal of the
Constitutional Court and the Administrative Court to deal with the
merits of his complaint in the proceedings under Section 54 of the
Aliens Act violated his rights under Article 13 (Art. 13) of the
Convention.
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).
The Commission, having regard to the above findings, considers
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 also 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.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy