EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 25661/94
Makulu Nsangu
against
Austria
REPORT OF THE COMMISSION
(adopted on 22 May 1995)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-18). . . . . . . . . . . . . . . . . . . . . .1
A. The application
(paras. 2-4). . . . . . . . . . . . . . . . . . . .1
B. The proceedings
(paras. 5-13) . . . . . . . . . . . . . . . . . . .1
C. The present Report
(paras. 14-18). . . . . . . . . . . . . . . . . . .2
II. ESTABLISHMENT OF THE FACTS
(paras. 19-47) . . . . . . . . . . . . . . . . . . . . .4
A. The particular circumstances of the case
(paras. 19-43). . . . . . . . . . . . . . . . . . .4
B. The evidence before the Commission
(para. 44). . . . . . . . . . . . . . . . . . . . .7
C. Relevant domestic law
(paras. 45-47). . . . . . . . . . . . . . . . . . .8
III. OPINION OF THE COMMISSION
(paras. 48-62) . . . . . . . . . . . . . . . . . . . . 10
A. Complaint declared admissible
(para. 48). . . . . . . . . . . . . . . . . . . . 10
B. Point at issue
(para. 49). . . . . . . . . . . . . . . . . . . . 10
C. Article 3 of the Convention
(paras. 50-61). . . . . . . . . . . . . . . . . . 10
CONCLUSION
(para. 62). . . . . . . . . . . . . . . . . . . . 12
APPENDIX I : DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION . . . . . . 13
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicant is a Zairese citizen, born in 1967 and currently
resident in Vienna. She was represented before the Commission by
Mr. G. Liedermann, a lawyer practising in Vienna.
3. The application is directed against Austria. The respondent
Government were represented by their Agent, Mr. F. Cede, Ambassador,
Head of the International Law Department at the Federal Ministry of
Foreign Affairs.
4. The case concerns the applicant's complaint that her expulsion
to Zaire would expose her to the risk of being arrested, tortured or
even killed, on account of her husband's activities for an opposition
party. The applicant invokes Article 3 of the Convention.
B. The proceedings
5. The application was introduced on 14 November 1994 and registered
the same day.
6. On 14 November 1994 the President of the Commission decided to
apply Rule 36 of the Commission's Rules of Procedure. On
9 December 1994, 19 January, 2 March and 12 April 1995 the Commission
decided to prolong the application of Rule 36.
7. Also on 14 November 1994, the President of the Commission
decided, pursuant to Rule 34 para. 3 and Rule 48 para. 2 (b) of its
Rules of Procedure, to give notice of the application to the respondent
Government and to invite the parties to submit written observations on
its admissibility and merits.
8. The Government's observations were submitted on 30 November 1994.
The applicant replied on 6 December 1994.
9. On 9 December 1994 the Commission decided, pursuant to
Rule 50 (a) of its Rules of Procedure, to invite the respondent
Government to submit further observations on the admissibility and
merits of the application.
10. On 2 January 1995 the Government submitted their further
observations, to which the applicant replied on 10 January 1995.
11. On 19 January 1995 the Commission declared admissible the
applicant's complaint that her expulsion to Zaire would expose her to
a real risk of torture or inhuman treatment or punishment in that
country. It declared inadmissible the remainder of the application.
12. The text of the Commission's decision on admissibility was sent
to the parties on 24 January 1995 and they were invited to submit such
further information or observations on the merits as they wished. The
applicant submitted further information and observations on
20 March 1995. The Government made no further submissions.
13. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, also placed
itself at the disposal of the parties with a view to securing a
friendly settlement. In the light of the parties' reaction, the
Commission now finds that there is no basis on which such a settlement
can be effected.
C. The present Report
14. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes, the following members being present:
MM. C.A. NØRGAARD, President
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
N. BRATZA
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
15. The text of this Report was adopted on 22 May 1995 by the
Commission and is now transmitted to the Committee of Ministers of the
Council of Europe, in accordance with Article 31 para. 2 of the
Convention.
16. The purpose of the Report, pursuant to Article 31 of the
Convention, is:
(i) to establish the facts, and
(ii) to state an opinion as to whether the facts found disclose
a breach by the State concerned of its obligations under
the Convention.
17. The Commission's decision on the admissibility of the application
is annexed hereto as Appendix I.
18. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. The particular circumstances of the case
19. In May 1990 the applicant came to Austria with her husband, who
was employed as a cook at the Zairese embassy in Vienna.
20. On 21 September 1992 the applicant's husband filed a request for
asylum. In accordance with S. 4 of the Austrian Asylum Act, this
request was extended also to cover his wife, the applicant, and their
two children, born in 1985 and 1987.
21. On 7 October 1992 the Federal Office for Asylum (Bundesasylamt)
rejected the request by the applicant's husband.
22. Subsequently, the applicant's husband lodged an appeal with the
Federal Ministry for the Interior (Bundesministerium für Inneres). On
7 May 1993 the applicant's husband submitted a number of documents in
support of his appeal:
- a letter of 10 January 1993 from the Secretary General of the
Union for Democracy and Social Progress (Union pour la Démocratie
et le Progrès Social - UDPS) in Kinshasa to the Zairese Socialist
Party in Vienna, for the attention of its president, Mr. Ngongo,
informing the latter that the applicant's husband was an active
member of the UDPS and asking him to intervene in favour of the
applicant before the Austrian authorities;
- a personal letter of 23 April 1993 from the First Secretary of
the Zairese embassy in Paris, addressing the applicant's husband
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's husband, and stating that the persons listed were
dangerous, subversive elements; and
- a summons dated 14 April 1993 to appear before the Zairese
immigration authorities.
23. On 12 May 1993 the Federal Ministry for the Interior
(Bundesministerium für Inneres) dismissed the appeal by the applicant's
husband. The Ministry noted he had been heard by the Federal Office
for Asylum on 24 September and 1 October 1992, and had made the
following submissions: 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 informed him about the existence of a
telex in which the secret service had requested his return. Thereupon,
he refused to go to Zaire and was dismissed, but was reinstated soon
after. In April 1992 the ambassador ordered him to poison a politician
belonging to the opposition party, who was on visit in Vienna. When
he refused to do so, the ambassador stopped paying him his salary,
which he thought would force him to return to Zaire. In May 1992 he
was again ordered to go home, but refused to leave. He was afraid of
being killed if he returned to Zaire.
24. The Ministry found that the applicant's husband had continued to
work at the Zairese embassy in Vienna from December 1991 until
September 1992, although he had repeatedly been ordered to return to
Zaire. Moreover, he had not been able to name the opposition party to
which he allegedly belonged. Thus it was not credible that he was a
member of such a party. Further, the Ministry noted that according to
several reports a multi-party system had been introduced in Zaire in
April 1990. As regards the documents submitted by the applicant, the
Ministry found that they did not support the allegation that he would
be subject to persecution 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 authority did not suffice to establish his
status as a refugee.
25. On 2 June 1993 the Federal Office for Asylum rejected the
applicant's request for asylum. It referred to the decision of
12 May 1993 by the Ministry for the Interior, which had rejected her
husband's request for asylum, and stated that her request under S. 4
of the Asylum Act had, therefore, also to be rejected. On 15 July 1993
the Federal Ministry for the Interior dismissed the applicant's appeal.
26. On 23 December 1993 the applicant's husband lodged a complaint
with the Administrative Court against the decision of 12 May 1993 by
the Ministry for the Interior. He also requested that his complaint
be granted suspensive effect, which was refused by the Administrative
Court on 14 January 1994.
27. On 4 July 1994 the Vienna Police Directorate (Bundespolizei-
direktion) ordered the applicant's detention with a view to her
expulsion, on the ground that she was residing illegally in Austria
since her request for asylum had been rejected at second instance and
she did not have the necessary means for her maintenance. On
4 July 1994 the applicant was taken into custody at the Vienna Police
Prison.
28. On 7 July 1994 the Vienna Police Directorate, after having heard
the applicant, issued a residence ban (Aufenthaltsverbot) against her,
which is valid for five years. The Police Directorate referred to the
results of the asylum proceedings. It found that the applicant was
residing illegally in Austria and did not possess the necessary means
for her maintenance. As she, as well as her husband and children, had
only been resident for about four years and she did not speak German,
she had not been integrated. Thus the interest in protecting the
economic well-being of Austria outweighed her interest in staying.
29. On 12 July 1994 the Vienna Police Directorate rendered a
declaratory decision under S. 54 of the Aliens Act (Fremdengesetz).
It stated that the applicant, at the hearing of 7 July 1994, had made
a request for such a decision and had submitted the same reasons, which
had already been stated in the asylum proceedings. Referring to the
results of these 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 the
receiving 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.
30. On 16 July 1994 the applicant filed an appeal against the
residence ban of 7 July 1994. She submitted in particular that she and
her family had been living in Austria for four years. Her children
went to school there and spoke German, like Austrian children of a
comparable age. Further, they received maintenance from private
charitable organisations and did not live on any public benefits.
31. On 25 July 1994 the Vienna Independent Administrative Senate
(Unabhängiger Verwaltungssenat) dismissed the applicant's complaint
concerning the lawfulness of her detention with a view to her
expulsion.
32. On 8 August 1994 the Federal Ministry for the Interior dismissed
the applicant's appeal concerning the residence ban against her. The
Ministry found that the ban was justified under Article 8 of the
Convention as it was necessary, inter alia, for the prevention of
crime. The applicant and her family had only been legally resident in
Austria for a relatively short period and were not well integrated.
33. On 9 September 1994 the applicant filed a request with the Vienna
Police Directorate, in which she submitted that the declaratory
decision of 12 July 1994, relating to the question whether her
expulsion to Zaire would be prohibited under S. 37 of the Aliens Act,
had been issued without legal basis, as she had not requested such a
decision. She asked that the proceedings be reopened.
34. The applicant submitted that she would be persecuted in Zaire on
account of the political activity of her husband, who was an active
member of the UDPS and had used his position at the embassy to support
this party. The applicant also submitted a number of documents relating
to her husband's political activity. They included the following:
- copies of two telexes of 21 December 1991 and 14 May 1992,
respectively, addressed to the embassy in Vienna, which both
stated that the applicant's husband was a subversive element and
urged that he be returned to Zaire;
- a telefax of 10 April 1993 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's husband
and stating that the persons listed are dangerous, subversive
elements;
- letters of 3 and 5 March 1993 and 14 April 1993 by the
President of the Zairese Socialist Party in Vienna, Mr. Ngongo,
to the Austrian Ministry for the Interior, stating that her
husband and another person, M.F., had used their position at the
embassy to pass on information to the opposition and that they
and their families would be in danger if returned to Zaire.
35. On 22 September 1994 the Vienna Police Directorate forwarded the
file to the Vienna Security Directorate (Sicherheitsdirektion). It
added a comment according to which the applicant, although she had not
expressly made a request under S. 54 of the Aliens Act, had submitted
that she would be persecuted and killed if returned to Zaire.
36. On 23 September 1994 the Security Directorate returned the file,
informing the Police Directorate that it did not intend to quash the
latter's decision of 12 July 1994. However, the Police Directorate
would have to decide on the applicant's request for a reopening of the
proceedings at issue. It appears that the Police Directorate did not
take any decision in this respect.
37. On 25 September 1994 police officers took the applicant and
another person to Vienna airport in order to expel them to Zaire.
However, in view of their strong resistance, they were returned to the
Vienna Police Prison.
38. On 28 September 1994 the applicant requested the Vienna Police
Directorate to stay her expulsion. She referred to the entirety of her
submissions of 9 September 1994. She also submitted that her children,
born in 1985 and 1987, would suffer from being separated from her.
Finally, she pointed out that her husband's request for asylum was
still pending before the Administrative Court.
39. On 7 November 1994 the Vienna Police Directorate dismissed the
applicant's request. As regards her submissions that her expulsion
would expose her to a risk of being persecuted in Zaire, and would
therefore be contrary to S. 37 of the Aliens Act, the Police
Directorate found that it had already given its decision in this
respect on 12 July 1994. The new documents submitted by her mostly
concerned her husband or a third person. They were not adequate to
establish that she risked persecution. The other reasons invoked by
her, namely that her husband's asylum proceedings were still pending
and that her children were in Austria, were not relevant in the
proceedings at issue.
40. On 4 November 1994 the Vienna Police Directorate received a
certificate by the Zairese embassy in Brussels, confirming that the
applicant would be allowed entry into Zaire (Heimreisezertifikat).
41. On 16 November 1994 the applicant was released.
42. Following the Administrative Court's decision of
15 September 1994, quashing the decision of 12 May 1993 by the Ministry
for the Interior which had dismissed the asylum request of the
applicant's husband, the husband's proceedings are, since
2 December 1994, again pending before the Ministry for the Interior.
43. On 23 December 1994 the applicant filed a renewed request with
the Ministry for the Interior, to extend, in accordance with S. 4 of
the Asylum Act, her husband's right to asylum to her and their two
minor children or, eventually, to grant asylum to her. She claimed that
her husband was an active member of the UDPS and submitted inter alia
the documents, which she had submitted to the Vienna Police Directorate
with her request of 9 September 1994. The proceedings before the
Ministry for the Interior are still pending.
B. The evidence before the Commission
44. The Commission had regard to the following documents, most of
which had already been produced in the domestic proceedings, and to
other evidence obtained at the domestic level. It considered in
particular copies of:
- two telexes of 21 December 1991 and 14 May 1992, respectively,
addressed to the embassy in Vienna, which both stated that the
applicant's husband was a subversive element and urged that he
be returned to Zaire;
- a letter of 10 January 1993 from the Secretary General of the
UDPS in Kinshasa to the Zairese Socialist Party in Vienna, for
the attention of its president, Mr. Ngongo, informing the latter
that the applicant's husband was an active member of the UDPS and
asking him to intervene in favour of the applicant before the
Austrian authorities;
- letters of 3 and 5 March 1993 and 14 April 1993 by the
President of the Zairese Socialist Party in Vienna, Mr. Ngongo,
to the Austrian Ministry for the Interior, stating that the
applicant's husband and another person, M.F., had used their
position at the embassy to pass on information to the opposition
and that they and their families would be in danger if returned
to Zaire.
- a personal letter of 23 April 1993 from the First Secretary of
the Zairese embassy in Paris, addressing the applicant's husband
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's husband, and stating that the persons
listed were dangerous, subversive elements;
- two summonses requesting the applicant's husband to appear
before the Zairese Immigration Authorities on 28 June 1993 and
26 August 1993, respectively, stating as a motive "attack on the
security of the state" (atteinte à la securité de l'Etat -
Art. 14/72 Aln. 11).
- a letter dated 24 July 1993 of the UDPS (Sous-Section Rhône-
Alpes) stating that the applicant's husband had helped the party.
C. Relevant domestic law
1. Asylum Act (Asylgesetz)
45. S. 4 of the Asylum Act provides, that, upon request, the grant
of asylum must be extended to the refugee's minor children and his or
her spouse, if these persons are living in Austria and if the marriage
had been concluded before they came to Austria. In the asylum
proceedings, such family members have the same legal position as the
asylum-seeker.
2. Aliens Act (Fremdengesetz)
46. 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.
47. 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.
III. OPINION OF THE COMMISSION
A. Complaint declared admissible
48. The Commission has declared admissible the applicant's complaint
that her expulsion to Zaire would expose her to a real risk of torture
or inhuman or degrading treatment in that country.
B. Point at issue
49. Accordingly, the issue to be determined is whether the expulsion
of the applicant would be in violation of Article 3 (art. 3) of the
Convention.
C. Article 3 (art. 3) of the Convention
50. The applicant invokes Article 3 (art. 3) of the Convention which
provides as follows:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
51. The applicant submits that, if she is expelled to Zaire, she is
in danger of being arrested, tortured or even killed, on account of her
husband's activity, who allegedly used his position at the Zairese
embassy to pass on information to the UDPS, an opposition party, of
which he is a member. The applicant relies in particular on the
documents listed above in order to prove her husband's membership in
the UDPS and to support her allegation that her husband and herself
would be persecuted in Zaire. In addition she submits documents dealing
with the human rights situation in Zaire. They include a report on the
fiftieth session of the United Nations Commission on Human Rights, the
U.S. Department of State Country Reports on Human Rights Practices for
1993 and a report of Amnesty International of February 1994.
52. The Government submit that there are no indications militating
against the applicant's expulsion.
53. The Commission recalls that Contracting States have the right,
as a matter of well-established international law and subject to their
treaty obligations under Article 3 (art. 3), to control the entry,
residence and expulsion of aliens. However, expulsion by a Contracting
State of an asylum seeker may give rise to an issue under Article 3
(art. 3), and hence engage the responsibility of that State under the
Convention, where substantial grounds have been shown for believing
that the person concerned faces 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 returned (Eur. Court H.R., Vilvarajah and
Others judgment of 30 October 1991, Series A no. 215, p. 34.
paras. 102-103).
54. In order to determine whether the applicant has shown the
existence of a real risk of being subjected to treatment contrary to
Article 3 (art. 3) of the Convention upon her return to Zaire, the
Commission has first examined the submissions made by the applicant's
husband and by the applicant in the course of the asylum proceedings.
In this context the Commission notes that the applicant initially did
not file a request for asylum herself but only requested that her
husband's asylum proceedings be extended to cover her and their minor
children in accordance with S. 4 of the Austrian Asylum Act. In a first
set of proceedings, which started in September 1992, the Ministry for
the Interior dismissed the husband's request for asylum. Consequently,
the applicant's related request was also dismissed. However, the
Ministry's decision was quashed by the Administrative Court on
15 September 1994, and the husband's asylum proceedings are again
pending before the Ministry for the Interior. The applicant, on
23 December 1994, again filed a request to extend her husband's asylum
to her, but also requested, eventually, that she herself be granted
asylum.
55. In the first set of asylum proceedings, the applicant's husband,
according to the decision of the Ministry for the Interior, submitted
inter alia the following: 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 informed him about the existence
of a telex in which the secret service had requested his return.
Thereupon, he refused to go to Zaire and was dismissed, but was
reinstated soon after. In April 1992 the ambassador ordered him to
poison a politician belonging to the opposition party, who was on visit
in Vienna. When he refused to do so, the ambassador stopped paying him
his salary, which he thought would force him to return to Zaire. In
May 1992 he was again ordered to go home, but refused to leave. The
decision of the Ministry for the Interior further states that the
applicant's husband continued to work at the embassy until
September 1992. In the renewed asylum proceedings the applicant claimed
in particular that her husband was an active member of the UDPS.
56. The Commission notes that the allegations of a risk of ill-
treatment in case of the applicant's return to Zaire only relate to her
husband's activities for the UDPS, whereas there is no clear indication
in the facts that the applicant would run such a risk on account of any
political activities of her own. The Commission finds that the
submissions made by the applicant and her husband contain several
inconsistencies. Before the Commission the applicant claims that her
husband was a member of the UDPS and that he used his position at the
Zairese embassy to pass on information to this party. This must have
occurred in 1990 or 1991, when the applicant was working at the embassy
in Vienna and had not yet been warned that the secret service had
requested his return to Zaire. However, in the first set of asylum
proceedings in 1992 the applicant's husband did neither state that he
was a member of the UDPS, nor did he mention that he passed on
information to this party. According to the decision of the Ministry
for the Interior, he only submitted that he held a critical view of the
Zairese regime, and was not even able to name the opposition party,
which he allegedly supported. Only in the renewed asylum proceedings
in 1994 the applicant claimed that her husband was an active member of
the UDPS.
57. Further, the applicant's husband claims that he was informed in
December 1991 about a telex, in which the secret service requested his
return to Zaire. It has to be assumed that the ambassador knew about
this telex. In these circumstances, it is not convincing that the
ambassador ordered him, in April 1992, to poison a politician of an
opposition party. Moreover, the applicant's husband, despite a renewed
order to return to Zaire in May 1992, only filed his request for asylum
in September 1992 and also continued working at the embassy until that
time.
58. Secondly, the Commission has examined the various documents
submitted by the applicant. It notes that most of these documents have
been presented to the Austrian authorities, partly in the asylum
proceedings concerning the applicant's husband, and partly in
proceedings relating to the applicant's request to stay her expulsion.
The Commission notes that, according to the file, the Austrian Ministry
for the Interior did not hear the applicant's husband on the
credibility of the documents at issue when dismissing his asylum
request in the first set of proceedings. Further, it appears that the
Vienna Police Directorate did not hear the applicant on this question,
when dismissing her request to stay her expulsion.
59. However, the Commission finds that there are serious doubts as
regards the authenticity of the said documents. These doubts relate
either to the contents of the documents as such or to the way in which
the applicant's husband allegedly obtained them. In particular, the
latter claims that he was informed about a secret telex in December
1991 by another employee of the embassy in Vienna. However, it appears
that he did not submit the said telex to the Austrian authorities in
the 1992 asylum proceedings and it remains unclear how he obtained the
copy, which the applicant now presents to the Commission. As regards
the letter of 23 April 1993, it appears very unlikely that a high
official of the Zairese embassy in Paris, even if he did warn the
applicant's husband of measures pending against him, would have
produced a written proof of his disloyalty. This consideration also
casts doubt on the authenticity of the telefax of 10 April 1993, which
was allegedly transmitted with this letter and calls for the
repatriation of the applicant's husband, or for the taking of "radical
and urgent measures" against him.
60. The Commission equally questions the authenticity of the
two summonses to appear before the Zairese Immigration Authorities on
28 June 1993 and 26 August 1993. There is no indication in the file of
how the applicant's husband obtained these documents. Moreover, there
is no reason, why the Zairese authorities, who purportedly knew that
the applicant's husband was resident in Austria, should have tried to
summon him in Zaire. The further documents do not suffice to show that
the applicant or her husband would be persecuted in Zaire, on account
of the husband's alleged membership in the UDPS.
61. In these circumstances, the Commission finds that no substantial
grounds have been established for believing that the applicant would
be exposed to a real risk of being subjected to treatment contrary to
Article 3 (art. 3) if returned to Zaire.
CONCLUSION
62. The Commission concludes, by 25 votes to 1, that in the present
case the expulsion of the applicant would not be in violation of
Article 3 (art. 3) of the Convention.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy