AS TO THE ADMISSIBILITY OF
Application No. 21603/93
by Kagini SELVARATNAM
against Austria
The European Commission of Human Rights (Second Chamber) sitting
in private on 18 May 1995, the following members being present:
Mr. H. DANELIUS, President
Mrs. G.H. THUNE
MM. G. JÖRUNDSSON
S. TRECHSEL
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
Ms. M.-T. SCHOEPFER, 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 31 March 1993 by
Kagini SELVARATNAM against Austria and registered on 31 March 1993
under file No. 21603/93;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to the decision of the Plenary Commission on
2 April 1993 not to apply Rule 36;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as they have been submitted by the
applicant, may be summarised as follows.
The applicant is a national of Sri Lanka born in 1971 and of
Tamil origin. Before the Commission she is represented by
Mr. Herbert Pochieser, a lawyer practising in Vienna.
The applicant arrived in Austria on 11 December 1992. On
13 December 1992 she was arrested and detained with a view to
expulsion.
On 18 December 1992 the applicant filed an asylum request and was
interrogated by an officer of the Vienna Federal Police Department
(Bundespolizeidirektion). She stated that in Sri Lanka she had to flee
from shelling at all the places where she had stayed and that upon
returning to Sri Lanka she feared being killed.
On 18 December 1992 the Federal Police Department issued a
residence prohibition for five years against the applicant. It found
that the applicant had illegally entered Austrian territory and had
insufficient means of subsistence. Therefore her stay in Austria would
endanger public order and security, or would in any case be contrary
to the public interest.
On 29 December 1992 the Federal Asylum Office (Bundesasylamt)
dismissed her asylum request. It found that the applicant had not
entered Austria directly, but via Rumania and Hungary, and could have
found shelter from persecution already in these countries.
On 14 January 1993 the applicant, represented by counsel, applied
to the Federal Police Department to declare that her deportation to Sri
Lanka would be unlawful (Feststellung der Unzulässigkeit der
Abschiebung). She submitted that she would risk persecution in Sri
Lanka. She also applied for suspension of the enforcement of the
residence prohibition and for the residence prohibition to be repealed.
Furthermore, she applied to the Independent Administrative Tribunal
(Unabhängiger Verwaltungssenat) for review of the lawfulness of her
detention with a view to expulsion.
On 20 January 1993 the Independent Administrative Tribunal
dismissed the applicant's request and found that her detention was
lawful.
On 5 February 1993 the Federal Police Department dismissed the
applicant's requests of 14 January 1993. The authority held, inter
alia, that the request for suspension of the enforcement of the
residence prohibition was lodged out of time.
On 3 March 1993 the Vienna Federal Security Authority
(Sicherheitsdirektion) dismissed her appeal against the refusal to
repeal the residence prohibition. The applicant's request for a
declaration that her deportation was unlawful was rejected as having
been lodged out of time. The applicant introduced a complaint with the
Constitutional Court (Verfassungsgerichtshof) against these decisions.
On 25 March 1993 the Independent Administrative Tribunal
dismissed a further request for review of the lawfulness of her
detention with a view to expulsion.
On 28 March 1993 the Federal Police Department unsuccessfully
tried to carry out the applicant's deportation to Sri Lanka. On
9 April 1993 she was released from detention.
On 14 April 1993 the Constitutional Court refused to deal with
the applicant's complaint regarding the suspension of the execution of
the residence prohibition and, on 3 May 1993, it also decided not to
deal with her complaint regarding the refusal to repeal the residence
prohibition. Upon the applicant's request the Constitutional Court
referred these cases to the Administrative Court
(Verwaltungsgerichtshof), before which they are apparently still
pending.
On 4 October 1993 the Constitutional Court quashed the
Independent Administrative Tribunal's decision of 20 January 1993,
holding that the latter had not sufficiently considered the applicant's
submissions.
It appears that proceedings before the Constitutional Court,
regarding the Independent Administrative Tribunal's decision of
25 March 1993 on the applicant's detention with a view to expulsion,
and regarding the Federal Security Authority's decision of 3 March 1993
on the applicant's request for a declaration that deportation to Sri
Lanka was unlawful, are still pending.
On 20 February 1995 the applicant's lawyer informed the
Commission that the applicant meanwhile had left Austria and is now
living in Canada.
COMPLAINTS
Before the Commission the applicant complains under Articles 2
and 3 of the Convention that if she were to be deported to Sri Lanka
she would risk being imprisoned under inhuman conditions, and tortured
or even killed.
She further complains under Article 13 of the Convention that she
had no effective domestic remedy to complain that her expulsion to Sri
Lanka would violate her rights under the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The present application was introduced on 31 March 1993 and
registered on the same day.
On 2 April 1993 the Commission rejected the applicant's request
under Rule 36 of the Commission's Rules of Procedure for a stay of her
deportation.
THE LAW
1. The applicant complains that if deported to Sri Lanka she would
risk treatment contrary to Article 2 and 3 (Art. 2, 3) of the
Convention.
Under Article 25 (Art. 25) of the Convention the Commission may
only deal with an application if the applicant can claim to be a victim
of a violation, by one of the High Contracting Parties, of rights set
forth in the Convention or its Protocols.
On the question whether the applicant may still claim to be a
victim of an alleged violation of Articles 2 and 3 (Art. 2, 3) of the
Convention, the Commission observes that after the applicant's release
from detention on 9 April 1993 no steps for the enforcement of the
residence prohibition have been taken. The Commission notes further
that the applicant meanwhile has left Austria and is now living in
Canada.
In these circumstances the Commission concludes that the
applicant's complaint under Articles 2 and 3 (Art. 2, 3) of the
Convention is resolved in such a way that, in the particular
circumstances of the present application, she is no longer able to
claim to be a victim of a violation of the Convention within the terms
of Article 25 para. 1 (Art. 25-1).
It follows that this part of the application is inadmissible
under Article 27 para. 2 (Art. 27-2) of the Convention.
2. The applicant further complains under Article 13 (Art. 13) of the
Convention that she had no effective domestic remedy to complain that
her expulsion to Sri Lanka would violate her rights under the
Convention.
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 Articles 2 and 3 (Art. 2, 3) of the Convention, and thus
cannot be considered to be an arguable claim warranting a remedy under
Article 13 (Art. 13) of the Convention.
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.
For these reasons, the Commission, unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(M.-T. SCHOEPFER) (H. DANELIUS)
Full & Egal Universal Law Academy