AS TO THE ADMISSIBILITY OF
Application No. 28604/95
by S.M. K.
against Austria
The European Commission of Human Rights sitting in private on
26 February 1996, the following members being present:
MM. S. TRECHSEL, President
H. DANELIUS
C.L. ROZAKIS
E. BUSUTTIL
G. JÖRUNDSSON
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
P. LORENZEN
K. HERNDL
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 13 September 1995
by S.M. K. against Austria and registered on 19 September 1995 under
file No. 28604/95;
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 is a Zairese national, born in 1971. Before the
Commission he is represented by Mr. A. Grohs, a lawyer practising in
Vienna.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
A. Particular circumstances of the case
The applicant arrived in Austria on 28 January 1994.
On 31 January 1994 he requested asylum and was heard by the
Federal Asylum Office (Bundesasylamt). He submitted in particular that
since 1992 he was a member of the UDPS and had been elected president
of the Kintambo District of Kinshasa in 1993. In June 1993 he had been
contacted by collaborators of President Mobutu who had tried to recruit
him as an informant. On 4 July 1993 an assembly of the UDPS had taken
place in a stadium where clashes with the police had occurred in which
four persons had been killed. A friend had hidden him while police
officers had been looking for him at his parents' house. In
August 1993 he had returned home and had continued to work for the
UDPS. He had been contacted again by collaborators of President
Mobutu. On 11 November 1994 police officers had looked for him at his
parents' house. Since they could not find him they had returned on
12 January 1994, had put fire to the house and had raped his sister.
With the help of members of the UDPS who had given him 400 $ and a
passport he had managed to leave Zaire. From Zaire he had gone by
truck to Johannesburg (South Africa) and from there by plane to
Austria.
On 7 February 1994 the Asylum Office dismissed the applicant's
request. It found that his statements were not credible and contained
contradictions. In particular, his account of the events which caused
his flight lacked details and was rather schematical. The events which
took place on 4 July 1993 at the stadium were not acts of persecution
directed against the applicant himself and afterwards he could continue
his political activity without any hindrance. Also his account of the
modalities of his flight was not credible. It was implausible that he
covered a distance of some 3500 km (Kinshasa - Johannesburg) within 8
days on a truck under African road conditions. It was also implausible
that with only 400 $ he managed to finance the whole journey. In any
event, the applicant had passed through Zambia, Botswana and Zimbabwe
before arriving in South Africa and all these states were contracting
states of the Geneva Refugee Convention. He therefore could have found
protection against persecution there.
On 7 February 1994 the Baden District Administrative Authority
(Bezirkshauptmannschaft) heard the applicant. The Administrative
Authority issued a deportation order (Ausweisungsbescheid) against the
applicant as it found that after asylum had been refused his stay in
Austria was unlawful. The Administrative Authority also informed him
of the possibility of filing a request under Section 54 of the Aliens
Act whereupon the applicant requested the declaration that his
expulsion to Zaire was inadmissible. The Administrative Authority then
decided to interrupt the proceedings under Section 54 of the Aliens Act
until a final decision was taken in the asylum proceedings.
On 21 February 1994 the applicant appealed against the
deportation order.
On 7 April 1994 the Lower Austria Public Security Authority
(Sicherheitsdirektion) dismissed the appeal against the deportation
order. It found that the Administrative Authority had correctly
concluded that the applicant's stay in Austria was unlawful as he had
entered Austria without a valid passport and visa.
After having received the Public Security Authority's decision
of 7 April 1994 the applicant applied to the Administrative Court
(Verwaltungsgerichtshof) for legal aid in order to file a complaint.
On 26 April 1994 the Administrative Court granted legal aid. On
10 May 1994 the Vienna Bar Chamber (Rechtsanwaltskammer) appointed an
ex officio lawyer for the applicant. This decision was served on the
applicant's lawyer on 24 May 1994.
The applicant's lawyer, after having studied the case, considered
a complaint to the Constitutional Court (Verfassungsgerichtshof) more
appropriate than one to the Administrative Court. However, the
time-limit for a complaint to the Constitutional Court would have
expired on 26 May 1994. On 14 June 1994 an employee of the applicant's
lawyer consulted the Chamber of Lawyers on how to proceed in such a
case. She was advised to file a complaint to the Constitutional Court
within the time-limit for a complaint to the Administrative Court and
to request at the same time legal aid for the proceedings before the
Constitutional Court.
On 5 July 1994 the applicant's lawyer introduced a complaint to
the Constitutional Court together with a request for legal aid.
On 15 July 1994 the Federal Minister for the Interior
(Bundesminister für Inneres) dismissed the applicant's appeal against
the Asylum Office's decision of 7 February 1994. He found that before
arriving in Austria the applicant had passed through Zambia, Botswana
and Zimbabwe, all countries which were parties to the Geneva Refugee
Convention. Since these countries respected the principle of
non-refoulement, the applicant could have found protection there.
On 5 December 1994 the Constitutional Court rejected the
applicant's complaint against the Public Security Authority's decision
of 7 April 1994 as being lodged out of time. It found that only a
request for legal aid addressed to the Constitutional Court could
interrupt the running of the six weeks' time-limit for filing a
constitutional complaint, but not a request addressed to the
Administrative Court. Furthermore, legal aid granted for the purpose
of proceedings before the Administrative Court did not automatically
extend to proceedings before other authorities.
On 27 January 1995 the applicant's lawyer filed requests for
reinstatement of the proceedings (Wiedereinsetzungsantrag) with the
Constitutional Court and with the Administrative Court. These requests
were rejected by the Administrative Court on 23 February 1995 and by
the Constitutional Court on 28 February 1995.
According to the applicant the Minister's decision of
15 July 1994 was served on him belatedly. He filed an application with
the Administrative Court for reinstatement of the proceedings. The
Administrative Court has not yet decided on his application. Also in
the proceedings under Section 54 of the Aliens Act no decision has yet
been taken.
B. Relevant domestic law
Section 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, would be in danger of being subjected to inhuman
treatment or punishment or to capital punishment or that his life or
his security would be endangered in that State on account of his race,
religion, nationality or adherence to a social group or on account of
his political opinions.
Such a request may be made during proceedings concerning the
issue of a deportation order or a residence ban. The alien has to be
informed in time of the possibility to make the request (Section 54
para. 2). An expulsion to the State indicated by the alien may not be
carried out as long as the decision relating to the request under
Section 54 has not become final (Section 54 para. 4).
COMPLAINTS
1. The applicant complains that if his expulsion to Zaire would be
carried out he would risk inhuman treatment and even being killed. He
invokes Articles 2 and 3 of the Convention.
2. He further complains under Article 6 para. 1 of the Convention
that the proceedings on his complaint to the Constitutional Court
against the deportation order were unfair. He submits that the
Constitutional Court failed to decide on the merits of his complaint
although he had relied on a recommendation by the Bar Chamber.
THE LAW
1. The applicant complains that if his expulsion to Zaire were
carried out he would risk inhuman treatment and even being killed. He
invokes Articles 2 and 3 (Art. 2, 3) of the Convention.
The Commission has examined the applicant's complaint under
Article 3 (Art. 3) of the Convention, which reads as follows:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
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. The right to political asylum is
not protected in either the Convention or its Protocols. 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). A mere possibility of ill-treatment is
not in itself sufficient (ibid., p. 37, para. 111).
The Commission recalls further that an applicant can only claim
to be a victim of an alleged violation of Article 3 (Art. 3) of the
Convention within the meaning of Article 25 para. 1 (Art. 25-1) if an
expulsion order has been made against him, the mere refusal of a
residence permit not being sufficient to meet this requirement (Eur.
Court H.R., Vijayanathan and Pusparajah judgment of 27 August 1992,
Series A no. 241-B, p. 87, para. 46).
In the present case, the applicant, on 7 February 1994, filed a
request under Section 54 of the Aliens Act for a declaratory decision
that his expulsion to Zaire was inadmissible. The Baden District
Administrative Authority thereupon decided to interrupt the proceedings
under Section 54 of the Aliens Act until a final decision was taken in
the asylum proceedings. The proceedings under Section 54 of the Aliens
Act have not yet been resumed and no decision has been taken therein.
However, under Section 54 para. 4 of the Aliens Act the applicant
cannot be expelled to Zaire unless a final decision has been taken in
these proceedings.
The Commission finds that under these circumstances the applicant
cannot at present claim to be a victim of an alleged violation of
Article 3 (Art. 3) 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.
2. The applicant complains further under Article 6 para. 1
(Art. 6-1) of the Convention about the alleged unfairness of the
proceedings on his complaint to the Constitutional Court against the
deportation order.
The Commission recalls, however, that a decision as to whether
an alien should be allowed to stay in a country does not involve the
determination of civil rights or of a criminal charge within the
meaning of Article 6 para. 1 (Art. 6-1) of the Convention (No. 8118/77,
Dec. 19.3.81, D.R. 25, p. 105; No. 14620/89, Dec. 3.5.93, unpublished).
It follows that Article 6 para. 1 (Art. 6-1) of the Convention
is not applicable in the present case. The remainder of the
application is therefore incompatible ratione materiae with the
provisions of the Convention within the meaning of its Article 27 para.
2 (Art. 27-2).
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (S. TRECHSEL)
Full & Egal Universal Law Academy