AS TO THE ADMISSIBILITY OF
Application No. 29103/95
by T.B. and I.G.-A.
against Denmark
The European Commission of Human Rights sitting in private on
30 October 1997, the following members being present:
Mr S. TRECHSEL, President
Mrs G.H. THUNE
Mrs J. LIDDY
MM E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
C.L. ROZAKIS
L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
Mrs M. HION
MM R. NICOLINI
A. ARABADJIEV
Mr M. de SALVIA, 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 12 August 1995 by
T.B. and I.G.-A. against Denmark and registered on 8 November 1995
under file No. 29103/95;
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 applicants, mother and daughter, are Armenian citizens, born
in 1949 and 1971, respectively. They reside at present in Denmark where
they have asked for asylum. Before the Commission the applicants are
represented by Mr Helge Nørrung, a lawyer practising in Frederiksberg,
Denmark.
The facts of the case, as submitted by the applicants, may be
summarised as follows.
The applicants came to Denmark on 3 November 1993. They possessed
valid passports and a visa for Denmark valid until 3 February 1994,
issued by the Danish Embassy in Moscow. Once in Denmark they moved in
with a Danish citizen, K.O., whom the first applicant had corresponded
with since 1992. In order to secure the applicants' visa for Denmark
K.O. had issued a declaration by which he guaranteed financial support
for the applicants. However, he withdrew the declaration on
7 January 1994.
On 9 January 1994 the applicants applied for asylum. The first
applicant stated in support of her application that she had been
critical of the regime in Armenia since her childhood. For this reason
her father, who was a former minister for water resources and colonel
in the KGB, placed her in a psychiatric hospital for six months in
1969. Subsequently, she became a journalist and commenced writing
critical articles about the leaders of the country. Since then she was
allegedly harassed and persecuted by the authorities who assaulted her
and the second applicant, searched their common apartment and even
attempted to kill them.
The second applicant is an artist. She studied at the Jeplemezjan
Art College until 1990 when she was admitted to the Yerevan State
Institute of Art. She left Armenia together with her mother as she
suffered from the harassment against her mother and was likewise
assaulted because of her mother's criticism against the regime and also
due to her preference for the Russian language. While in Denmark the
second applicant married another Armenian asylum seeker. A daughter was
born out of this marriage in 1995. Whereas the second applicant and her
daughter are still in Denmark it appears that her husband has been
deported but managed to apply for asylum in the Netherlands during a
transit at Schiphol Airport. Apparently, he is still in the
Netherlands.
The applicants' applications were rejected by the Directorate for
Aliens (Direktoratet for Udlændinge) on 3 June 1994 as their fears of
harassment and persecution were found to be unsubstantiated. The
applicants' appeals were rejected by the Aliens Appeals Board
(Flygtningenævnet) on 24 May 1995. As regards the first applicant the
Board stated, inter alia, as follows:
(Translation)
"A majority of the Board finds that considerable doubts
exist as to whether the applicant has been subjected to the
harassment as explained. The Board finds it of importance
that according to her own statement, the applicant has
primarily been subjected to harassment from one particular
person from the KGB. The applicant has explained in further
details about her critical journalistic engagements after
1990, including criticism vis-à-vis Yerevan's mayor who,
according to the applicant, was shot approximately four
months ago. The applicant who speaks Russian, and who has
only published articles in that language, has worked as a
free-lance journalist for several different newspapers
prior to her departure. The applicant has furthermore
explained that she has reported several violent attacks
from the KGB person in question to the Armenian authorities
which refused to take any further action or delayed the
investigation of the episodes, but that she did not report
the shooting episodes, as explained, as she considered this
to be fruitless.
Although the Board's majority finds that the applicant has
remained faithful to her story on all important points to
which she refers as reasons for the request for asylum, it
does not find her story convincing. It is the majority's
opinion that the applicant's story is to a considerable
extent influenced by her subjective experiences of the more
general state of affairs in Armenia.
In this respect the majority attaches importance to the
fact that, according to the information available to the
Board, it was possible to voice critical opinions in the
written media during the period before the applicant's
departure in the autumn of 1993, and that the newspapers
which published the applicant's articles were legal. The
majority furthermore finds that the applicant did not
experience direct conflicts with the Armenian authorities
although she accused the mayor of corruption, and left with
a valid passport issued on 1 October 1993. The majority is
unable to accept that the passport was obtained by the
payment of several million roubles in bribes. Finally, in
the evaluation of the applicant's story some importance is
attached to the fact that she arrived in November 1993 but
did not apply for asylum until January 1994.
Having regard to this the Board does not find that the
applicant was persecuted when she left Armenia in a way
which could justify the granting of a residence permit
pursuant to section 7 of the Aliens Act (Udlændingeloven)
or that the applicant upon return to Armenia risks such
persecution."
The second applicant's application was rejected with reference
to the decision taken in the first applicant's case and since there
were no elements which could substantiate that she herself would run
any risk of persecution.
The first applicant subsequently lodged an appeal with the
Parliamentary Ombudsman. By decision of 2 August 1995 the Ombudsman
rejected the appeal as he found no reason to criticise the decisions
taken.
On 12 September 1996 the first applicant requested the Aliens
Appeals Board to reopen the case. On 16 September 1997 the Board
refused to do so as the applicant had not submitted any relevant new
information.
COMPLAINTS
The applicants complain of the fact that the Danish authorities
have refused to accept their requests for asylum. They maintain that
they will be persecuted by the Armenian authorities if returned to that
country and invoke Articles 3, 5, 8, 9, 10 and 13 of the Convention and
Article 2 para. 2 of Protocol No. 4 to the Convention.
THE LAW
The applicants complain that their applications for asylum have
been rejected and that they face deportation to Armenia where allegedly
they will be subjected to persecution and ill-treatment.
The Commission has first examined the applicants' 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 to
control the entry, residence and expulsion of aliens. The right to
asylum is not protected in either the Convention or its Protocols (cf.
for example Eur. Court HR, Vilvarajah and others v. the United Kingdom
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 that 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 or she is to be expelled (ibid., p. 34, para. 103). A mere
possibility of ill-treatment, however, is not in itself sufficient to
give rise to a breach of Article 3 (Art. 3) (ibid., p. 37, para. 111).
In the present case the Commission recalls that the applicants
came to Denmark in order to visit a man, K.O., with whom the first
applicant had corresponded for some time and who had made the necessary
financial and visa arrangements in order to allow the applicants to
enter the country. Their applications for asylum were not submitted
until after K.O. had withdrawn his support. Furthermore, although the
first applicant was critical towards the political establishment in
Armenia the Commission has not found it established that this prevented
her from voicing her opinion or otherwise work as a free-lance
journalist.
In these circumstances, the Commission shares the Danish
authorities' doubts as to whether the applicants would, on account of
their situation as described by them, face a real risk of treatment
contrary to Article 3 (Art. 3), if returned to Armenia. Thus, the
Commission considers, on the evidence before it concerning the
applicants' background and the current situation in Armenia, that it
has not been established that there are substantial grounds for
believing that they would be exposed to a real risk of being subjected
to treatment contrary to Article 3 (Art. 3) of the Convention if
expelled to that country.
As regards the other Articles invoked by the applicants the
Commission has examined their complaints as submitted by them. It
finds, however, that the facts of the case do not disclose any
appearance of a violation of these Articles.
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. de SALVIA S. TRECHSEL
Secretary President
to the Commission of the Commission
Full & Egal Universal Law Academy