FIRST SECTION
DECISION
Application no. 20203/11
Ikechukwu Romanus ONYEJIEKWE
against Austria
The European Court of Human Rights (First Section), sitting on 9 October 2012 as a Chamber composed of:
Nina Vajić, President,
Peer Lorenzen,
Elisabeth Steiner,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Linos-Alexandre Sicilianos,
Erik Møse, judges,
and Søren Nielsen, Section Registrar,
Having regard to the above application lodged on 29 March 2011,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant with regard to the applicant’s complaint under Article 8 of the Convention,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Ikechukwu Romanus Onyejiekwe, is a Nigerian national, who was born in 1978 and lives in Vienna. He was represented before the Court by Mr H. Pochieser, a lawyer practising in Vienna.
2. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The applicant requested asylum in Austria on 5 September 2003 under a false name, giving a false date of birth. He claimed that he had fled Nigeria after a violent conflict between two neighbouring villages over land. His mother had been killed in a hospital and he had no family left in Nigeria.
5. On 14 September 2004 the Vienna Regional Court (Landesgericht für Strafsachen Wien) convicted the applicant of drug trafficking and attempted drug trafficking, finding that the trafficking had been repeated and large scale in nature, and sentenced him to twenty months’ imprisonment.
6. Thereupon, an exclusion order (Aufenthaltsverbot) was issued against the applicant on 7 October 2004, which became final.
7. On 21 January 2005 the Federal Asylum Office (Bundesasylamt) dismissed the applicant’s asylum request and ordered his expulsion to Nigeria. The Federal Asylum Office found the applicant’s reasons for having fled Nigeria to be vague, lacking substantiation and thus not credible.
8. The applicant appealed against that decision and notified the Independent Asylum Panel (Unabhängiger Bundesasylsenat) on 31 October 2005 of his real name and date of birth.
9. After having served thirteen months of his prison sentence, the applicant was conditionally released from prison on 28 May 2005.
10. On 2 December 2005 the applicant married an Austrian citizen.
11. On 6 October 2006 the Independent Asylum Panel held a hearing, during which the applicant explained that he had given a false name to the Austrian authorities to protect himself, but that he now wanted to disclose the real reasons for his having fled Nigeria. He continued by stating that he had been a driver for a regional minister who had accused him of having been involved in a plot to kill him in 2003. After the failed assassination attempt, corrupt police officers and soldiers had started to round people up and to arrest them. The applicant himself had gone to a friend’s house and had hidden there for a few days until he had heard that his mother had been shot by the minister’s guards because she would not tell them the applicant’s whereabouts. Thereupon, the applicant had left for Lagos, but it had not been safe there either and he had been shot at.
12. On 19 October 2006 the Independent Asylum Panel dismissed the applicant’s appeal, holding that his story was not credible, as what he had told the Panel was entirely different to what he had told the Federal Asylum Office. Furthermore, his “new” reasons for having fled were again very vague, lacking important details and unconvincing. The Independent Asylum Panel made some observations concerning the general situation in Nigeria and with regard to Decree no. 33, a law penalising “harming the reputation of Nigeria abroad”. It held that while Nigerian citizens who were expelled from another country for having committed a drug-related crime were in principle liable to be punished under Decree no. 33 with a prison sentence, no incident in which an expelled asylum seeker had been arrested at the airport for political motives upon returning to Nigeria had been recorded according to a country information report produced by the German Ministry for Foreign Affairs. With regard to Article 8 of the Convention, the Independent Asylum Panel held that the applicant’s expulsion was justified under the second paragraph of that provision in view of his criminal conviction under the Drug Offences Act.
13. The applicant complained to the Constitutional Court (Verfassungsgerichtshof) and the Administrative Court (Verwaltungsgerichtshof), applying for his complaint to have suspensive effect and for legal aid.
14. On 6 December 2006 the Administrative Court granted suspensive effect to the applicant’s complaint.
15. On 16 January 2007 the Constitutional Court refused to grant the applicant legal aid due to the complaint’s lack of prospects of success.
16. Finally, on 9 September 2010 the Administrative Court refused to deal with the applicant’s complaint due to the lack of an important legal issue. That decision was served on the applicant’s counsel on 29 September 2010.
B. Relevant domestic law and international information
The Asylum Act 1997
17. The Asylum Act 1997 (Asylgesetz 1997), applicable at the relevant time, governed the conditions under which asylum could be granted to asylum seekers and asylum proceedings. Its Article 8 § 2 provided that after the asylum authority had dismissed an asylum request and had declared expulsion to the asylum seeker’s country of origin permissible, it should combine the dismissal of the request with an expulsion order.
Nigerian Decree no. 33 of 1990
18. Current information on Nigerian Decree no. 33 of 1990 is scarce. The Nigerian National Drug Law Enforcement Agency (“NDLEA”), established by the Decree no. 48 in 1989, points to the National Drug Law Enforcement (Amendment) Decree no. 33 as another measure adopted in dealing with the problem of illegal drugs. As stated on the Agency’s website (), Decree no. 33 prescribes a prison term of five years for persons convicted of trafficking in drugs abroad, and by so doing bringing Nigeria into disrepute.
19. The United Kingdom Border Agency Country of Origin Information Report on Nigeria of 9 July 2010 (“the COI Report”) referred to a British‑Danish fact-finding mission in 2007 and 2008, during which senior officials of the NDLEA were interviewed about the enforcement of Decree no. 33 of 1990. The NDLEA officials had stated that Decree no. 33 had been enforced from 1990 to 2000. Between 1996 and 2000, NDLEA statistical information had shown that 451 Nigerians had been prosecuted and convicted under the provisions of Decree no. 33. The NDLEA officials had further stated that in 2000 the Agency had reviewed the enforcement of Decree no. 33 and had suspended prosecutions under the Decree. This step had been taken in response to public concern that the Agency had prosecuted people who had been convicted of drug offences abroad twice for the same offence. Consequently, since 2001, there had been no prosecutions of returning Nigerians convicted of drug offences abroad under the provisions of Decree no. 33. NDLEA officials had finally explained that immigration officials in Nigeria were normally informed of a deportation before the individual concerned was deported. Once a deportee arrived in Nigeria, NDLEA officers monitored the activities of the individual, but did not take any action to arrest him or her (see page 46 of the COI Report, at paragraphs 13.03 and 13.04).
COMPLAINTS
20. The applicant complained under Articles 2, 3 and 5 of the Convention that the authorities had not taken into consideration that he might be punished in Nigeria under Decree no. 33, according to which harming the reputation of Nigeria is a punishable act. In the light of his possible conviction and the prevailing prison conditions in the country, the applicant submitted that his rights under Articles 2, 3 and 5 would be violated in the event of his return to Nigeria.
21. The applicant also complained under Article 6 of the Convention that the Independent Asylum Panel had not given him an opportunity to comment on the background materials which had informed its findings about Nigeria and had thus violated the applicant’s right to be heard. He also complained that the Administrative Court’s refusal to deal with his complaint had violated his right to be heard.
22. Relying on Article 8 of the Convention, the applicant complained that the authorities had not taken his right to respect for his family life with his wife into consideration. Neither had they taken into account the fact that the applicant had been living in Austria since 2003 and had not reoffended after his release from prison.
THE LAW
A. The applicant’s complaints under Articles 2, 3 and 5 of the Convention with regard to his expulsion to Nigeria
23. The applicant complained that his expulsion to Nigeria would violate Articles 2, 3 and 5 of the Convention.
24. The applicant did not substantiate a link between this complaint and Articles 2 and 5 of the Convention. The Court will therefore examine the complaint under Article 3 of the Convention alone, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
25. The applicant argued that the Austrian authorities had not sufficiently taken into consideration the impact of Decree no. 33 on him upon his return to Nigeria in view of the poor prison conditions there.
26. It is the Court’s settled case-law that as a matter of well-established international law, and subject to their treaty obligations, including those arising from the Convention, Contracting States have the right to control the entry, residence and removal of aliens (see, among many other authorities, Hilal v. the United Kingdom, no. 45276/99, § 59, ECHR 2001‑II, and Saadi v. Italy [GC], no. 37201/06, § 124, ECHR 2008). In addition, neither the Convention nor its Protocols confer the right to political asylum (see Vilvarajah and Others v. the United Kingdom, 30 October 1991, § 102, Series A no. 215, and Ahmed v. Austria, 17 December 1996, § 38, Reports of Judgments and Decisions 1996‑VI).
27. However, expulsion by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if deported, faces a real risk of being subjected to treatment contrary to Article 3. In such a case, Article 3 implies an obligation not to deport the person in question to that country (see Soering v. the United Kingdom, 7 July 1989, §§ 90-91, Series A no. 161; Ahmed, cited above, § 39; Chahal v. the United Kingdom, 15 November 1996, § 80, Reports 1996‑V; and Saadi, cited above, § 125).
28. The Court will firstly look at the asylum proceedings and the alleged risk of persecution of the applicant upon his return to Nigeria. The Court notes in this context that the applicant provided two entirely different rationales for seeking asylum in Austria in the first and second proceedings. At first, he claimed to be in danger due to a violent conflict between two neighbouring villages. Subsequently, he divulged his real name and claimed to have been suspected by his former employer, a regional minister, of having been involved in a plot to kill the minister. The Austrian authorities, apart from the fact that the reasons for the applicant’s having fled Nigeria differed considerably, found that the applicant’s account of both stories was vague, unsubstantiated and lacking in relevant detail.
29. The applicant had access to a thorough examination of his asylum claim at two levels of the domestic tribunal system. Therefore, in view of the vague submissions made by the applicant in the course of the domestic proceedings and the lack of any substantiation of the applicant’s alleged risk of persecution before the Court, it concludes that there is no indication that the applicant is at a real and individual risk of being subjected to ill‑treatment upon returning to Nigeria.
30. The Court then turns to the complaint concerning the risk of the applicant being detained and convicted pursuant to Decree no. 33 upon returning to Nigeria. It notes that in October 2006 the Independent Asylum Panel examined that issue and referred to a country information report produced by the German Ministry for Foreign Affairs stating that no incident of arrest at the airport for political reasons had been noted. The material before the Court obtained proprio motu (see H.L.R. v. France, 29 April 1997, § 37, Reports 1997‑III, and, more recently, Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 116, 23 February 2012) claims that prosecutions under Decree no. 33 have been suspended and there have been no prosecutions of returned Nigerians convicted of drug offences abroad under the provisions of Decree no. 33 since the year 2001 (see paragraphs 18 and 19 above). This information, which confirms the findings of the country report used in the domestic proceedings, indicates that Decree no. 33 is, if not substantially amended or repealed, at least not enforced on a regular basis. It follows that there is no indication that the applicant would be at a real individual risk of suffering ill-treatment within the meaning of Article 3 of the Convention upon returning to Nigeria as a result of any arrest under Decree no. 33 and detrimental prison conditions.
31. The applicant’s complaint is consequently manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
B. The applicant’s complaint under Article 6 of the Convention
32. The applicant further complained of unfair proceedings under Article 6 of the Convention, which provides, as far as relevant, as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
33. The applicant argued that the Austrian authorities had not given him an opportunity to comment on the country information report on Nigeria in the course of the domestic proceedings. He further alleged that by the Administrative Court’s refusal to deal with his complaint, he had been deprived of a fair hearing.
34. The Court reiterates that the guarantees of Article 6 of the Convention are not applicable to asylum proceedings (see Katani and others v. Germany (dec.), no. 67679/01, 31 May 2001, and Maaouia v. France [GC], no. 39652/98, § 40, ECHR 2000‑X).
35. It follows that the complaint is inadmissible ratione materiae and must therefore be rejected pursuant to Article 35 § 3 (a) and § 4 of the Convention.
C. The applicant’s complaint under Article 8 of the Convention
36. The applicant also complained of a violation of his right to respect for his family life under Article 8 of the Convention, which reads as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
37. The Government contested the applicant’s complaint. They argued that the applicant had entered Austria as an adult in 2003 and had been convicted of a serious crime under the Drug Offences Act in 2004. As concerns the applicant’s behaviour after his release from prison, the Government stated that the period between his release and the decision taken by the Independent Asylum Panel had been far too short to be counted in the applicant’s favour. Furthermore, the Administrative Court had to examine any complaint against an administrative decision from the standpoint of the time of the issuance of that decision. It was neither to conduct further investigations nor to include changes of circumstances in its examination. The Government further stated that the applicant had married his wife at a time in which his resident status in Austria had been precarious, in view of the valid exclusion order and the dismissal of the applicant’s asylum request at first instance. The final dismissal of his asylum request and the upholding of the expulsion order had therefore been proportional within the meaning of Article 8 § 2 of the Convention.
38. The applicant argued that the Austrian authorities had not sufficiently taken into consideration his family life with his wife, an Austrian national, and furthermore had not properly included the fact that he had not reoffended in their evaluation of his circumstances. The applicant further stated that a much longer period of good conduct after his release should have been taken into account in the proceedings before the Administrative Court, in which his complaint had been pending for almost four years. The applicant further asserted that he had developed considerable social ties with Austria in the years since his arrival there and was happily married to his wife. The applicant and his wife had tried to start a family.
39. The Court reiterates that the Convention does not guarantee the right of an alien to enter or to reside in a particular country and, in pursuance of their task of maintaining public order, Contracting States have the power to expel an alien convicted of criminal offences (see, among many other authorities, Üner v. the Netherlands [GC], no. 46410/99, § 54, ECHR 2006‑XII). However, the removal of a person from a country where close members of his family are living may amount to an infringement of the right to respect for family life as guaranteed in Article 8 § 1 of the Convention (see Moustaquim v. Belgium, 18 February 1991, § 43, Series A no. 193, and Boujlifa v. France, 21 October 1997, § 42, Reports 1997‑VI).
40. In view of the applicant’s marriage to an Austrian national in 2005, the Court does not doubt that the applicant has a family life in Austria and that expulsion to Nigeria would constitute an interference with his right to respect for this family life. The parties further do not contest that the interference would be in accordance with the law, namely the Asylum Act 1997, and that the impugned measure would serve, if implemented, the legitimate aim of “preventing disorder or crime”.
41. It is therefore left for the Court to examine if the interference would be “necessary in a democratic society”. The relevant criteria that the Court uses to assess whether an expulsion measure is necessary in a democratic society have been summarised as follows (see Üner, cited above, §§ 57-58, ECHR 2006‑XII):
“57. Even if Article 8 of the Convention does not therefore contain an absolute right for any category of alien not to be expelled, the Court’s case‑law amply demonstrates that there are circumstances where the expulsion of an alien will give rise to a violation of that provision (see, for example, Moustaquim, cited above; Beldjoudi v. France, 26 March 1992, Series A no. 234-A; and Boultif, cited above; see also Amrollahi v. Denmark, no. 56811/00, 11 July 2002; Yilmaz v. Germany, no. 52853/99, 17 April 2003; and Keles v. Germany, no. 32231/02, 27 October 2005). In Boultif the Court elaborated the relevant criteria which it would use in order to assess whether an expulsion measure was necessary in a democratic society and proportionate to the legitimate aim pursued. These criteria, as reproduced in paragraph 40 of the Chamber judgment in the present case, are the following:
– the nature and seriousness of the offence committed by the applicant;
– the length of the applicant’s stay in the country from which he or she is to be expelled;
– the time elapsed since the offence was committed and the applicant’s conduct during that period;
– the nationalities of the various persons concerned;
– the applicant’s family situation, such as the length of the marriage, and other factors expressing the effectiveness of a couple’s family life;
– whether the spouse knew about the offence at the time when he or she entered into a family relationship;
– whether there are children of the marriage, and if so, their age; and
– the seriousness of the difficulties which the spouse is likely to encounter in the country to which the applicant is to be expelled.
58. The Court would wish to make explicit two criteria which may already be implicit in those identified in Boultif:
– the best interests and well-being of the children, in particular the seriousness of the difficulties which any children of the applicant are likely to encounter in the country to which the applicant is to be expelled; and
– the solidity of social, cultural and family ties with the host country and with the country of destination.”
42. Turning to the first set of criteria concerning the applicant’s criminal conviction, the Court observes that the applicant was convicted of drug trafficking and attempted drug trafficking, the domestic court finding that the trafficking had been repeated and large scale in nature, and was sentenced to twenty months’ imprisonment. The Court notes in this context that the applicant was involved in repeated drug trafficking only shortly after he had arrived in Austria and had lodged his asylum request and before his proceedings were finished. In view of the devastating effects drugs have on people’s lives, the Court understands why the authorities are particularly firm in dealing with those who actively contribute to the spreading of this problem (see Dalia v. France, 19 February 1998, § 54, Reports 1998‑I; Nwosu v. Denmark (dec.), no. 50359/99, 10 July 2001; and Balogun v. the United Kingdom, no. 60286/09, § 49, 10 April 2012).
43. As concerns the criterion of the applicant’s conduct after his release from prison, the Court reiterates that its task is to assess the compatibility with the Convention of the applicant’s actual expulsion, not that of the final expulsion order (see Maslov v. Austria [GC], no. 1638/03, § 93, ECHR 2008). In that, the Court’s approach differs from that of the Austrian Administrative Court. In the present case, it appears that the applicant, who was conditionally released from prison in May 2005, had not reoffended after his release. Certainly, a significant period of good conduct after release from prison has an impact on the assessment of the risk that a person poses to society. However, the Court finds that the seriousness of the offence committed by the applicant must also weigh heavily in the balance (see Arvelo Aponte v. the Netherlands, no. 28770/05, §§ 57-58, 3 November 2011).
44. Turning to the set of criteria dealing with the applicant’s ties to his host country and his country of origin, the Court notes that the applicant came to Austria as a twenty-five-year-old adult and has lived there ever since for almost nine years. Apart from his marriage to an Austrian national, little is known of the applicant’s personal and social ties with his host country. Given the length of his residence in Austria, it can however be assumed that the applicant has integrated in some way into Austrian society. On the other hand, the Court observes that the applicant spent all his formative years in Nigeria and left as an adult in his mid-twenties. He thus speaks a national language, and it must also be assumed that he established strong social and cultural ties with his country of origin.
45. Finally, turning to the applicant’s family life in Austria, the Court notes that the applicant never had permanent resident status in Austria. He married his wife, an Austrian national, after his criminal conviction, after the issuance of an exclusion order and after the dismissal of his asylum request at first instance. The applicant and his wife must therefore have been aware of the precarious nature of the applicant’s resident status in Austria (see Yesufa v. the United Kingdom (dec.), no. 7347/08, 26 January 2010, and Arvelo Aponte, cited above, § 59) and thus could not have had any legitimate expectation of the applicant being able to remain in the country at the time they married. The applicant has submitted little information about his wife other than the fact that she is an Austrian national. Due to a lack of information to the contrary and the fact that the couple have no children together, the Court finds that relocation of the applicant and his wife to Nigeria might admittedly be difficult, but would not be unfeasible.
46. The Court therefore concludes that, in view of the very serious offence committed by the applicant shortly after his arrival in Austria, the lack of permanent resident status throughout his marriage with an Austrian national, his longstanding social and cultural ties with his country of origin, Nigeria, and the assumed ability for the applicant’s wife to join him in Nigeria, the interference with the applicant’s family life would be proportionate to the legitimate aim pursued.
47. It follows that this complaint is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Søren NielsenNina Vajić
RegistrarPresident
Full & Egal Universal Law Academy