AS TO THE ADMISSIBILITY OF
Application No. 28542/95
by S. M.
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 15 May 1996, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
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 12 September 1995
by S. M. against Austria and registered on 15 September 1995 under file
No. 28542/95;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
FACTS
The applicant, born in 1963, is an Ethiopian national. When
lodging his application he was living in Vienna. He is a mining
engineer by profession. He is married to an Ethiopian national. In
the proceedings before the Commission, he is represented by
MM. A. Reiner, W. Hofer and A. Grohs, lawyers practising in Vienna.
The facts of the case, as they have been presented by the
applicant, may be summarised as follows.
The applicant grew up in Ethiopia with his family. The
applicant's parents owned a food shop. His father died in 1991, his
mother, seven brothers and one sister are living in Ethiopia. The
applicant went to school in Ethiopia between 1968 and 1982. He was
subsequently employed by an enterprise under the control of the
Ministry of Defence. In September 1983 he was allegedly arrested on
account of his membership and involvement in the "Ethiopian People's
Revolution Party" (EPRP) and participation in demonstrations. He was
released in August 1984, when he could take up his previous employment
again. Having been granted a scholarship, he left Ethiopia in 1985,
apparently together with his wife, in order to take up engineering
studies at the Donetsk University in the previous Union of Socialist
Soviet Republics. His passport was issued by the Addis Abeba Ministry
of Foreign Affairs in August 1985. He repeatedly returned to Ethiopia
and also allegedly obtained a new passport until April or May 1991 when
the new Ethiopian Government (the applicant refers to the "Tigrays
Peoples Liberation Front") took over political powers. Following the
termination of his studies, the applicant no longer had a residence
permit in the USSR.
In August 1991 the applicant and his wife took the train in
Moscow and travelled to Vienna, hidden in the Russian conductor's
compartment. They arrived in Vienna on 18 September 1991.
On 21 September 1991 the applicant applied for political asylum.
On 30 September 1991 the applicant was questioned by the Public
Security Authority (Sicherheitsdirektion) of Lower Austria on his
asylum request. He stated that he feared political persecution upon
his return to Ethiopia on account of his previous membership in the
EPRP.
On 23 October 1991 the Public Security Authority dismissed the
applicant's request for asylum. Referring to the results of its
investigations and in particular his statements of 30 September 1991,
it found that the applicant was not a refugee within the meaning of the
Geneva Refugee Convention. The Authority considered in particular that
there were no circumstances supporting the applicant's allegations.
On 3 May 1994 the Federal Ministry for the Interior
(Bundesministerium für Inneres) dismissed the applicant's appeal.
In its decision, the Ministry confirmed that the applicant was
not a refugee within the meaning of the Geneva Refugee Convention. As
regards the applicant's allegation of political persecution as a member
of the EPRP, the Ministry considered that the applicant had not proved
his membership in the EPRP. In any event, having regard to his
submission that following his imprisonment he had been in a position
to take up his previous employment and further to obtain a scholarship
for university studies in the USSR, the Ministry found that the
applicant had adapted his conduct to the prevailing political regime
and convinced the competent state authorities that he did not entertain
any serious relations with opposition groups. Moreover, he had
repeatedly returned to Ethiopia without any problems. The Ministry
also considered that the provisional Ethiopian Government comprised
several political parties, including the EPRP which is accepted as a
legal opposition party. In the prevailing political situation any risk
of the applicant's political persecution was unlikely.
The decision also contained the information that there was a
right to lodge a complaint, within six weeks following its service,
with the Austrian Administrative Court (Verwaltungsgerichtshof) and/or
the Austrian Constitutional Court (Verfassungsgerichtshof), and that
any such complaint had to be signed by counsel.
The applicant applied with the Administrative Court for legal aid
with a view to lodge a complaint and for appointment of counsel.
On 26 May 1994 the Administrative Court granted the applicant
legal aid in accordance with the relevant provisions of the
Administrative Court Act (Verwaltungsgerichtsgesetz), and ordered the
appointment of counsel. It also noted that the time-limit for lodging
the complaint started to run from the service of the decision on the
appointment of counsel.
The Vienna Bar Committee (Ausschuß der Rechtsanwaltskammer)
appointed Mr. A. Reiner as the applicant's counsel. The applicant's
counsel was informed accordingly on 12 August 1994.
On 19 September 1994 the applicant, assisted by counsel, applied
with the Constitutional Court for legal aid, lodged a complaint,
claiming a violation of his constitutional rights, and also requested,
as a subsidiary means, that his case be transferred to the
Administrative Court.
On 12 October 1994 the Constitutional Court rejected the
applicant's complaint as having been lodged out of time. The Court
found that the provision under the Administrative Court Act regarding
the time-limit to lodge a complaint in legal aid cases did not extend
to the proceedings before the Constitutional Court. As the applicant's
complaint had been rejected due to a procedural error, his request for
transfer to the Administrative Court had also to be rejected. No legal
aid could therefore be granted. The decision was served on 1 December
1994.
On 12 December 1994 the applicant, assisted by counsel, lodged
a request for reinstatement of the complaint proceedings before the
Constitutional Court and at the same time again submitted his
complaint, his request for transfer and his request for legal aid. His
counsel claimed that due to incorrect information from the Bar
Association he had only realised upon service of the Constitutional
Court decision of 12 October 1994 that the complaint with the
Constitutional Court had been lodged out of time.
At the same day, the applicant, assisted by counsel, lodged a
request for reinstatement of the complaint proceedings before the
Administrative Court and filed his complaint. His counsel again
claimed that due to incorrect information from the Bar Association he
had only realised upon service of the Constitutional Court decision of
12 October 1994 that the complaint with the Constitutional Court had
been lodged out of time, and that he had therefore been prevented,
through no fault of his own, from lodging the complaint with the
Administrative Court in time.
On 28 February 1995 the Constitutional Court dismissed the
applicant's request for reinstatement of the proceedings. The Court
found that reinstatement could be granted if a party was exceptionally
prevented from filing a request in time, even if there was a minor
fault on the part of the party concerned. However, the applicant had
failed duly to inform himself about the procedural requirements for
lodging complaints with the Constitutional Court and the Administrative
Court. His alleged legal error as to the consequences of filing a
request for legal aid with the Administrative Court could not be
regarded as a minor fault. His complaint was thus rejected as having
been lodged out of time. His requests for transfer and legal aid were
also rejected. The decision was served on 16 March 1995.
On 2 March 1995 the Administrative Court dismissed the
applicant's request for reinstatement of the proceedings. The Court
found that the applicant's submissions did not show that he had been
prevented from filing the complaint with the Administrative Court in
time. His complaint was therefore rejected as having been lodged out
of time. The decision was served on 12 April 1995.
COMPLAINTS
1. The applicant complains under Articles 2 and 3 of the Convention
that his deportation to Ethiopia would expose him to a risk for his
life and subject him to inhuman and degrading treatment.
2. The applicant further complains under Article 6 of the Convention
that both the Constitutional Court and the Administrative Court refused
to decide on the merits of his complaints about the decision of
3 May 1994.
THE LAW
1. The applicant complains that his deportation to Ethiopia would
expose him to a risk for his life and subject him to inhuman and
degrading treatment.
He relies on Article 3 (Art. 3) of the Convention, which provides
as follows:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
He also invokes Article 2 para. 1 (Art. 2-1) of the Convention,
which provides:
"Everyone's right to life shall be protected by law. No one shall
be deprived of his life intentionally save in the execution of
a sentence of a court following his conviction of a crime for
which this penalty is provided by law."
The Commission recalls that Contracting States have the right to
control the entry, residence and expulsion of aliens. The right to
political asylum is not protected in either the Convention or its
Protocols (Eur. Court H.R., Vilvarajah and Others judgment of
30 October 1991, Series A no. 215, p. 34, para. 102). However,
expulsion by a Contracting State of an asylum seeker may give rise to
an issue under Article 3 (Art. 3) of the Convention, and hence engage
the responsibility of the State under the Convention, where substantial
grounds have been shown for believing that the person concerned would
face 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
expelled (ibid., p. 34, para. 103). A mere possibility
of ill-treatment is not in itself sufficient (ibid., p. 37, para. 111).
The Commission first observes that the applicant failed to lodge,
in accordance with Austrian law, complaints against the refusal of
asylum with the Constitutional Court and with the Administrative Court.
The question, therefore, arises whether or not he has exhausted the
remedies available under Austrian law, as required under Article 26
(Art. 26) of the Convention. However, the Commission need not to
resolve this matter, as the applicant's complaints are anyway
inadmissible for the following reasons.
In the present case, the Commission finds that the applicant's
submissions, in particular as to his situation following his alleged
detention in 1983/84, do not contain any substantiation of his
allegations that he would risk persecution upon his return to Ethiopia.
The Commission accordingly cannot find that the applicant would be
exposed to a real risk for his life within the meaning of Article 2 or
(Art. 2) to a risk of being subjected to treatment contrary to Article
3 (Art. 3) of the Convention on his return to Ethiopia.
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 also complains under Article 6 (Art. 6) of the
Convention about the proceedings before the Constitutional Court and
the Administrative Court.
The Commission recalls that the procedure followed by public
authorities to determine whether an alien should be allowed to stay in
a country, or should be expelled, does not involve the determination
of civil rights and obligations within the meaning of Article 6 para. 1
(Art. 6-1) of the Convention (cf., No. 13162/87, Dec. 9.11.87, D.R. 54
p. 211).
Accordingly, this part of the application is incompatible ratione
materiae with the provisions of the Convention, pursuant to Article 27
para. 2 (Art. 27-2).
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy