AS TO THE ADMISSIBILITY OF
Application No. 30488/96
by Naser PALUSHI
against Austria
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 27 February 1996
by Naser PALUSHI against Austria and registered on 18 March 1996 under
file No. 30488/96;
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 1972 is Kosovo-Albanian and a national of
Yugoslavia. He is currently residing in Vienna. Before the Commission
he is represented by Mr. H. Pochieser, a lawyer practising in Vienna.
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 28 April 1994 the Vienna Federal Police Authority
(Bundespolizeidirektion), referring to S. 41 of the Aliens Act
(Fremdengesetz), ordered the applicant's detention with a view to
expulsion on the ground that he had stayed illegally in Austria since
20 December 1993, when his request for asylum had been refused by final
decision. Moreover, he had no valid passport and had not duly
registered his place of residence with the police.
On 17 May 1994 the applicant filed a complaint with the Vienna
Independent Administrative Panel (Unnabhängiger Verwaltungssenat)
claiming that his detention with a view to expulsion was unlawful. He
submitted, in particular, that his expulsion would be contrary to S. 37
of the Aliens Act, since, being a draft evader, he risked being
subjected to torture or inhuman or degrading treatment upon his return
to Yugoslavia.
On 25 May 1994 the Independent Administrative Panel dismissed the
applicant's complaint and declared that the continuation of his
detention was lawful. It noted that on 3 May 1994 the Vienna Federal
Police Authority had issued an expulsion order against the applicant.
It was enforceable as the authority had excluded the suspensive effect
of a possible appeal. Moreover, it appeared that the applicant had not
appealed against the expulsion order. The Independent Administrative
Panel further noted that, on 20 December 1993, the Ministry for the
Interior had refused to grant asylum to the applicant. Consequently,
he no longer had a residence permit under the Asylum Act. As to the
applicant's submission that the expulsion was inadmissible, the
Independent Administrative Panel noted that the applicant had filed a
request under S. 54 of the Aliens Act that his expulsion to Yugoslavia
be declared inadmissible. The fact that proceedings under S. 54 of the
Aliens Act were pending did not render the applicant's detention
unlawful. Further, the Independent Administrative Panel found that the
applicant's detention was necessary in order to secure the measures
under the Aliens Act, as there were reasons to assume that, in case of
his release, he would try to evade the said measures. Such reasons
existed, in particular, as the applicant had illegally entered Austria,
had illegally stayed there after his residence permit had expired and
had failed to duly register his residence.
The applicant's detention lasted until 28 May 1994. It is not
clear from the file whether he was expelled thereafter.
On 27 September 1994 the Constitutional Court
(Verfassungsgerichtshof) refused to entertain the applicant's
complaint. Subsequently, upon the applicant's request, it transferred
the case to the Administrative Court (Verwaltungsgerichtshof).
On 6 June 1995 the applicant supplemented his complaint with the
Administrative Court. He submitted, in particular, that his detention
was unlawful on the ground that his expulsion was not lawful for the
reasons set out in S. 37 of the Aliens Act. He claimed that he would
be ill-treated or even sentenced to death upon being returned to
Yugoslavia. Consequently, his expulsion was not lawful and any
detention to secure this measure was equally unlawful. Further, the
applicant submitted that the Independent Administrative Panel had not
correctly established the relevant facts.
On 28 July 1995 the Administrative Court dismissed the
applicant's complaint. It found that, in the proceedings concerning the
review of the lawfulness of detention with a view to expulsion, the
Independent Administrative Panel did not have to examine the question
whether the expulsion to a specific state was unlawful on the grounds
set out in S. 37 of the Aliens Act. This issue had to be determined
in separate proceedings under S. 54 of the Aliens Act. Only a decision
taken in the proceedings under S. 54 of the Aliens Act declaring the
expulsion to a specific state to be prohibited might render the
applicant's detention unlawful. The Administrative Court also found
that the Independent Administrative Panel had correctly established the
relevant facts. On the basis of these facts its assumption was
justified that the applicant, in case of his release, would take up
residence without registration thereby preventing his expulsion.
The decision was served on the applicant on 30 August 1995.
B. Relevant domestic law
S. 37 of the Aliens Act (Fremdengesetz) 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 group or political opinion (para. 2, which refers to
Article 33 para. 1 of the 1951 Geneva Convention relating to the Status
of Refugees).
Under S. 54 of the Aliens Act the competent authority has to
determine, at the aliens request, whether there are solid reasons to
believe that he would be at risk, within the meaning of S. 37 para. 1
or para. 2, in a particular State named by him.
Under S. 41 of the Aliens Act aliens can be arrested or detained,
if this measure is necessary to secure, inter alia, the proceedings for
issuing a residence ban or an expulsion order or to ensure the alien's
expulsion.
COMPLAINTS
The applicant complains under Article 5 para. 1 of the Convention
that his detention was unlawful on the ground that his expulsion to
Yugoslavia in itself would be unlawful as it would expose him to a risk
of ill-treatment.
Further, the applicant complains that the scope of review of the
Independent Administrative Panel was not in conformity with
Article 5 para. 4 of the Convention, as the Panel could not review the
lawfulness of his expulsion to Yugoslavia, when deciding on the
lawfulness of his detention. Thus, he claims that he did not have an
effective remedy as regards the lawfulness of his detention. In this
respect he also invokes Article 13 of the Convention.
The applicant also complains that the Independent Administrative
Panel does not fulfil the requirements of a tribunal within the meaning
of Article 6 of the Convention. He submits that due to the
organisational structure of the Independent Administrative Panels,
their members do not enjoy full independence and impartiality. The
applicant claims, in particular, that according to a report published
in an Austrian magazine, the Ministry of Interior has tried to
influence members of the Vienna Independent Administrative Panel in
proceedings concerning the review of the lawfulness of detention with
a view to expulsion.
THE LAW
The applicant raises various complaints relating to his detention
with a view to his expulsion and to the review of this detention by the
Independent Administrative Tribunal. He invokes Article 5 para. 1 and
para. 4 (Art. 5-1, 5-4) as well as Articles 6 and 13 (Art. 6, 13) of
the Convention.
Article 5 (Art. 5), in so far as relevant, reads as follows:
"1. Everyone has the right to liberty and security of person.
No one shall be deprived of his liberty save in the following
cases and in accordance with a procedure prescribed by law:
...
f. the lawful arrest or detention of a person to prevent
his effecting an unauthorised entry into the country or of a
person against whom action is being taken with a view to
deportation or extradition.
4. Everyone who is deprived of his liberty by arrest or
detention shall be entitled to take proceedings by which the
lawfulness of his detention shall be decided speedily by a court
and his release ordered if the detention is not lawful.
..."
The Commission will first examine the applicant's complaint that
his detention with a view to his expulsion was unlawful on the ground
that his expulsion to Yugoslavia in itself would be unlawful.
The Commission recalls that all that is required under Article 5
(Art. 5) of the Convention is that "action is being taken with a view
to deportation" and that it is, therefore, immaterial for the purposes
of Article 5 para. 1 (f) (Art. 5-1-f), whether the underlying decision
to expel can be justified under national or Convention law (Eur. Court
HR, Chahal v. the United Kingdom judgment of 15 November 1996, Reports
1996-V, No. 22, para. 112).
The Commission finds that the applicant has not shown that his
allegation concerning the unlawfulness of his detention has any basis
in domestic law. Having regard to the material before it, there is no
doubt that the applicant was detained with a view to his deportation
within the meaning of Article 5 para. 1 (f) (Art. 5-1-f). The
Commission notes, in particular, that, a few days after the applicant
had been taken into detention, an expulsion order was issued against
him, which immediately became enforceable. Moreover, the competent
authorities found that his detention was necessary in order to secure
the measures under the Aliens Act and, in particular, to prevent him
from avoiding his expulsion by taking up illegal residence. The
Commission, therefore, finds that the applicant's detention was in
conformity with Article 5 para. 1 (f) (Art. 5-1-f) of the Convention.
The Commission will next examine the applicant's complaint that
the scope of review of the Independent Administrative Panel was not in
conformity with Article 5 para. 4 (Art. 5-4) of the Convention, as the
Panel could not review the lawfulness of his expulsion to Yugoslavia,
when deciding on the lawfulness of his detention. The Commission notes
that the applicant also invokes Article 13 (Art. 13) of the Convention.
The Commission recalls, that Article 5 para. 4 (Art. 5-4)
provides a lex specialis in relation to the more general requirements
of Article 13 (Art. 13) (cf. No. 23888/94, Dec. 18.10.95, D.R. 83, p.
48). It follows that this complaint is to be examined under Article 5
para. 4 (Art. 5-4) of the Convention.
Furthermore, the Commission recalls that the judicial review
under this Article should be wide enough to bear on those conditions
which are essential for the "lawful" detention of a person according
to Article 5 para. 1 (Art. 5-1) of the Convention. In cases of
detention with a view to deportation it follows from the requirements
of Article 5 para. 1 (Art. 5-1) that Article 5 para. 4 (Art. 5-4) does
not demand that the domestic courts should have the power to review
whether the underlying decision to expel could be justified under
national or Convention law (Chahal v. the United Kingdom judgment, loc.
cit., paras. 127-128). In view of this case-law, the applicant's
complaint that the scope of review of the Independent Administrative
Panel was insufficient in that it could not examine the lawfulness of
his expulsion, does not disclose any appearance of a violation of
Article 5 para. 4 (Art. 5-4) of the Convention.
Finally, the Commission turns to the applicant's complaint that
the Independent Administrative Panel is not an impartial and
independent tribunal. The applicant invokes Article 6 (Art. 6) of the
Convention.
The Commission will examine this complaint also under
Article 5 para. 4 (Art. 5-4) of the Convention. However, the Commission
finds that the applicant's complaint is unsubstantiated. He only refers
in general terms to the organisational structure of the Independent
Administrative Tribunals. His further reference to a newspaper article
- which, moreover, he has not submitted - purportedly alleging that the
Ministry for the Interior has tried to influence members of the Vienna
Independent Administrative Panel is also not suited to cast doubt on
the independence and impartiality of that organ.
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.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy