AS TO THE ADMISSIBILITY OF
Application No. 37206/97
by Leon TAGADRIAN
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 23 October 1997, the following members being present:
Mrs J. LIDDY, President
MM M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
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 5 March 1997 by
Leon TAGADRIAN against Germany and registered on 1 August 1997 under
file No. 37206/97;
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 1964, is a national of Georgia. He is
currently living with his wife and two children in Tettnang. In the
proceedings before the Commission, he is represented by
Mr J. Badkowski, a lawyer practising in Frankfurt am Main.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
On 2 June 1993 the applicant and his family entered the territory
of the Federal Republic of Germany. He and his family applied for
asylum on 4 June 1993.
On 10 December 1993 the Federal Office for Refugees (Bundesamt
für die Anerkennung ausländischer Flüchtlinge) dismissed the requests
for asylum and ordered the applicant and his family to leave the German
territory within one month and ordered their deportation in case they
should not leave voluntarily. The Office noted in particular the
applicant's submissions that they had left Georgia legally with a
regular flight on account of the chaotic and warlike situation. The
applicant had further stated that he had been ill-treated by soldiers
and also civilian persons and his family had been threatened in order
to compel him to fight as a soldier against Abkhazia and that he feared
being imprisoned or killed upon his return. The Office considered that
there was no concrete information on a warlike situation at the time
when the applicant and his family left Georgia. In any event, the
general risks as a consequence of a situation of war or civil war did
not constitute political persecution justifying political asylum.
Moreover, there was nothing to show that the applicant and his family
risked any sanctions upon their return to Georgia.
On 4 April 1995 the Sigmaringen Administrative Court
(Verwaltungsgericht) dismissed the action filed by the applicant and
his family against the refusal of asylum and their envisaged expulsion.
As regards the applicant's statements at the oral hearing, the
Administrative Court noted that he had claimed to be of Armenian
origin. In 1986 he had been employed by the Georgian Council of
Ministers as a photographer and had inter alia taken photographs at
public events such as strikes in Tbilisi. He had resigned in 1990 and
started to work as a shoe-maker. In November 1992 he had been arrested
by soldiers, had been questioned and ill-treated in order to force him
to join a legion fighting against Abkhazia. He had been released the
next morning. As from January 1993 he had been in hiding. In January
and February 1993, he had again received orders to join the armed
forces. Although there was no longer war in Georgia he feared that he
would be killed upon his return.
The Administrative Court found that the applicant had failed to
show any credible reasons in support of his request for asylum. In
particular, the applicant's alleged problems as a photographer had not
given visa to his emigration from Georgia. There were no indication
that the Georgian authorities were responsible for the applicant's
short-term detention and ill-treatment by paramilitary groups. The
Court regarded as decisive that the applicant had been able to travel
without problems to Ukraine in February 1993. It did not appear
reasonable that he could have returned to Georgia if he had feared
political persecution. He had not submitted any plausible reasons for
his subsequent decision to leave Georgia. Moreover, the applicant's
statements did not appear credible; in particular there were
contradictions between his and his wife's statements as to the events
in November 1992 and the period of the applicant's hiding.
In these and the following proceedings, the applicant was
represented by counsel.
On 26 September 1995 the Baden Württemberg Administrative Court
of Appeal (Verwaltungsgerichtshof) dismissed the request for leave to
appeal (Antrag auf Zulassung der Berufung), lodged by the applicant and
his family. The Court of Appeal found that they had failed to show
that their case raised any question of fundamental importance.
On 27 November 1996 the Federal Office for Refugees dismissed the
applicant's and his family's request, dated 8 May 1996, to conduct
further asylum proceedings. The Office noted that the applicant,
represented by Mr Badkowski, had filed a Georgian court judgment of
14 February 1995, sentencing him to five years' imprisonment. 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 earlier
and his new submissions were incoherent. He had not advanced any
plausible explanation as to why he had only referred to his alleged
conviction in Georgia at this stage. In any event, the said judgment
was false. In this respect, the Office noted that the District Court
which had allegedly rendered the judgment was not competent to adjudge
the criminal offences in question, that it was unusual that a period
of more than one year was fixed until the commencement of imprisonment
and that under the file number indicated on the said judgment the
District Court in question had rendered a judgment on 10 March 1995 in
another case relating to drug trafficking.
On 17 December 1996 the applicant and his family filed an action
with the Sigmaringen Administrative Court to challenge the decision of
27 November 1996.
On 13 February 1997 the Sigmaringen Administrative Court refused
the applicant's and his family's request for interim measures to stop
their expulsion. The main proceedings are still pending.
COMPLAINTS
The applicant complains about his envisaged expulsion to Georgia
where he fears reprisals and imprisonment on account of his former
activities as a photographer. In this respect, he refers to the
general situation in Georgia where, according to human rights reports,
journalists, active members of dissident organisations and supporters
of the government of the former president Gamsakhurdia are at risk in
Georgia. He complains in particular that an expulsion pending court
proceedings challenging the refusal to reopen asylum proceedings
renders the right to seek asylum ineffective. He does not invoke any
particular provision of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 5 March 1997. On 13 March 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 1 August 1997.
THE LAW
1. The applicant complains about the refusal of political asylum and
his envisaged expulsion to Georgia.
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 faces
a real risk of being subjected to torture or to inhuman or degrading
treatment or punishment in the country to which he is 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, but also by his wife, found that he
had failed to show any reasons to fear political persecution upon his
return to Georgia. 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 previous occupation as a
photographer, a profession which he had no longer exercised since 1990.
Furthermore, the applicant has not explained his failure to refer to
his alleged conviction in Georgia at an earlier stage in the asylum
proceedings. Moreover, the finding of the Federal Office for Refugees
that the said document is false is based on plausible grounds.
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 Georgia.
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 of interim
measures pending the court proceedings concerning the reopening of
asylum proceedings rendered the exercise of his right to seek asylum
ineffective.
The Commission has considered this complaint under Article 13
(Art. 13) of the Convention which provides that everyone whose rights
and freedoms as set forth in this Convention are violated shall have
an effective remedy before a national authority.
This provision is a substantive right and its application does
not depend on the existence of a breach of another right or freedom as
set forth in the Convention. 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).
The Commission recalls that the applicant's complaint under
Article 3 (Art. 3) has been 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 complaint does 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