AS TO THE ADMISSIBILITY OF
Application No. 37992/97
by Djibril OUBDA
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 3 December 1997, the following members being present:
Mrs J. LIDDY, President
MM M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs M. HION
Mr R. NICOLINI
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 8 July 1997 by
Djibril OUBDA against Germany and registered on 2 October 1997 under
file No. 37992/97;
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 1965, is a national of Burkina Faso. When
lodging his application he was living in Essen. In the proceedings
before the Commission, he is represented by Mr. D.-W. Fortmann, a
lawyer practising in Essen.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
On 14 October 1994 the applicant entered the territory of the
Federal Republic of Germany. He applied for asylum on 17 October 1994,
alleging persecution by the police authorities on account of his
activities in a Muslim religious community.
On 16 February 1996 the Federal Office for Refugees (Bundesamt
für die Anerkennung ausländischer Flüchtlinge) dismissed the request
for asylum and ordered the applicant to leave the German territory
within one month and ordered his deportation in case he should not
leave voluntarily. The Office, having regard to the applicant's
allegations of persecution on account of his religious activities as
Imam of a Muslim community, noted in particular his submissions that
he had left Burkina Faso legally with a regular flight and that he had
allegedly lost his passport in the course of his journey.
On 18 September 1996 the Gelsenkirchen Administrative Court
(Verwaltungsgericht) dismissed the applicant's action against the
decision of 16 February 1996. In these and the following proceedings,
the applicant was represented by counsel. The Court found in
particular that the applicant had failed to substantiate any reasons
justifying to grant him asylum. In this respect, the Court noted the
applicant's allegations of persecution for religious reasons. The
Court, having regard to information obtained by, inter alia, the
Federal Ministry for Foreign Affairs, considered that in the past one
or possibly even several mosques had been closed. However, there were
no indications of persecutions against individual Muslims. The
applicant had not plausibly shown that, contrary to this general
situation, he had suffered any persecution by the authorities on
account of his religion and his religious activities. His statements
were partly contradictory and did not appear credible.
On 26 February 1997 the Federal Office for Refugees dismissed the
applicant's request, dated 4 February 1997, to conduct further asylum
proceedings. The Office noted that the applicant, represented by
Mr. Fortmann, still referred to his alleged persecution on account of
his Muslim religion and had filed a warning letter sent by his wife.
The Office observed that, pursuant to the relevant legal provisions,
a further set of asylum proceedings was only admissible if there were
reasons to reopen the proceedings and the refugee had been prevented,
through no fault of his own, from submitting these reasons in the
first set of proceedings. Moreover, the change of circumstances had
to be presented in a conclusive manner. In the applicant's case, his
new submissions were superficial, they were no more than an account of
the general situation in his home country.
On 23 April 1997 the Administrative Court refused the applicant's
request for an interim measure against his expulsion. His
constitutional complaint (Verfassungsbeschwerde) with the Federal
Constitutional Court (Bundesverfassungsgericht) concerning this refusal
remained unsuccessful.
On 28 May 1997 the Administrative Court dismissed the applicant's
action against the decision of 26 February 1997. As regards the
applicant's submissions that, upon his return, he would face
difficulties on account of his desertion in 1987, the Court considered
that the applicant had failed to raise this matter in the course of the
first set of asylum proceedings. Moreover, he had not submitted any
other new relevant circumstances.
On 15 July 1997 the North Rhine Westphalia Administrative Court
of Appeal (Oberverwaltungsgericht) refused the applicant's request for
leave to appeal.
The applicant again lodged a constitutional complaint with the
Federal Constitutional Court. He meanwhile obtained a temporarly
permission to stay in Germany (Duldung) until 4 October 1997.
COMPLAINTS
The applicant complains about his envisaged expulsion to Burkina
Faso. He complains in particular that his submissions in the second set
of asylum proceedings were not duly considered and that the envisaged
expulsion before the termination of the proceedings before the Federal
Constitutional court renders the right to seek asylum ineffective. He
invokes 5, 6, 13 and 14 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 8 July 1997. On 17 July 1997
the Acting President of the Commission decided not to apply Rule 36 of
the Commission's Rules of Procedure. The application was registered
on 2 October 1997.
THE LAW
1. The applicant complains about the refusal of political asylum and
his envisaged expulsion to Burkina Faso.
The Commission has examined the applicant's submissions under
Article 3 (Art. 3) of the Convention which states:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
The Commission recalls that no right of an alien to enter or to
reside in a particular country is as such guaranteed by the Convention.
However, the expulsion by a Contracting State of a foreigner 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 faced
a real risk of being subjected to torture or to inhuman or degrading
treatment or punishment in the country to which he was returned (cf.
Eur. Court HR, Vilvarajah and Others v. the United Kingdom judgment of
30 October 1991, Series A no. 215, p. 34, para. 103).
In the present case, the Commission, assuming exhaustion of
domestic remedies within the meaning of Article 26 (Art. 26) of the
Convention, notes that the German authorities, having regard to the
submissions made by the applicant, found that he had failed to show any
reasons to fear persecution upon his return to Burkina Faso. In
particular, the Commission notes that the applicant, who was
represented by counsel in the course of the asylum proceedings, failed
to present his arguments in a complete and conclusive manner. The
applicant did not state any concrete reasons to fear persecution on
account of his religious activities.
In these circumstances, the Commission finds that the applicant's
submissions do not disclose any real risk that he would be subjected
to ill-treatment contrary to Article 3 (Art. 3) upon his deportation
to Burkina Faso.
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 submits that the refusal to consider
particular submissions in the context of the second set of asylum
proceedings and his envisaged expulsion without awaiting the decision
of the Federal Constitutional Court upon his constitutional complaint
were in breach of Articles 6 and 13 (Art. 6, 13) of the Convention.
The Commission observes that Article 6 (Art. 6) of the Convention
does not apply to asylum or expulsion proceedings (No. 8118/77, Dec.
19.3.81, D.R. 25, p. 105; No. 9990/92, Dec. 15.5.84, D.R. 39, p. 119).
As regards Article 13 (Art. 13) of the Convention, the Commission
recalls that this provision requires a remedy in domestic law where an
individual has an arguable claim to be the victim of a violation of his
rights under the Convention. An arguable claim falls to be determined
on the particular facts of each case and the nature of the legal issue
raised (cf. Eur. Court HR, Plattform "Ärzte für das Leben" v. Austria
judgment of 21 June 1988, Series A no. 139, p. 11, paras. 25, 27). In
the present case, the applicant's complaint under Article 3 (Art. 3)
must be rejected as being manifestly ill-founded within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention. The Commission,
taking into account the specific circumstances of the case, finds 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)
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).
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy