Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 25964/94

Sharif Hussein Ahmed

against

Austria

REPORT OF THE COMMISSION

(adopted on 5 July 1995)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-16) . . . . . . . . . . . . . . . . . . . . . . . . 1

A. The application

(paras. 2-4) . . . . . . . . . . . . . . . . . . . . . . 1

B. The proceedings

(paras. 5-11). . . . . . . . . . . . . . . . . . . . . . 1

C. The present Report

(paras. 12-16) . . . . . . . . . . . . . . . . . . . . . 2

II. ESTABLISHMENT OF THE FACTS

(paras. 17-54). . . . . . . . . . . . . . . . . . . . . . . . 3

A. The particular circumstances of the case

(paras. 17-38) . . . . . . . . . . . . . . . . . . . . . 3

B. The evidence before the Commission

(paras. 39-42). . . . . . . . . . . . . . . . . . . . . .6

C. Relevant law

(paras. 43-54) . . . . . . . . . . . . . . . . . . . . . 7

III. OPINION OF THE COMMISSION

(paras. 55-71). . . . . . . . . . . . . . . . . . . . . . . . 9

A. Complaint declared admissible

(para. 55) . . . . . . . . . . . . . . . . . . . . . . . 9

B. Point at issue

(para. 56) . . . . . . . . . . . . . . . . . . . . . . . 9

C. Article 3 of the Convention

(paras. 57-70) . . . . . . . . . . . . . . . . . . . . . 9

CONCLUSION

(para. 71) . . . . . . . . . . . . . . . . . . . . . . .11

APPENDIX I : DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION. . . . . . . . . . .12

I. INTRODUCTION

1. The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A. The application

2. The applicant is a citizen of Somalia, born in 1963 and currently

resident in Graz. He was represented before the Commission by

Mr. W. Vacarescu, a lawyer practising in Graz.

3. The application is directed against Austria. The respondent

Government were represented by their Agent, Ambassador Mr. F. Cede,

Head of the International Law Department at the Federal Ministry of

Foreign Affairs.

4. The case concerns the applicant's complaint that his expulsion

to Somalia would expose him to a serious risk of being arrested,

tortured or killed. The applicant invokes Article 3 of the Convention.

B. The proceedings

5. The application was introduced on 13 December 1994 and registered

on 15 December 1994.

6. On 15 December 1994 the President of the Commission decided, in

accordance with Rule 36 of the Commission's Rules of Procedure, to

indicate to the Government of Austria that it was desirable in the

interest of the parties and the proper conduct of the proceedings not

to expel the applicant to Somalia until the Commission had an

opportunity to examine the application in the light of the parties'

submissions. On 20 January, 2 March, 12 April and 25 May 1995, the

Commission decided to prolong the application of Rule 36.

7. Also on 15 December 1994 the President of the Commission decided,

pursuant to Rule 34 para. 3 and Rule 48 para. 2 (b) of its Rules of

Procedure, to give notice of the application to the respondent

Government and to invite the parties to submit written observations on

its admissibility and merits.

8. The Government's observations were submitted on 3 January 1995.

The applicant replied on 1 February 1995 after an extension of the

time-limit.

9. On 2 March 1995 the Commission declared the application

admissible and decided to invite the Government to submit further

observations on the merits of the application.

10. The text of the Commission's decision on admissibility was sent

to the parties on 7 March 1995 and they were invited to submit further

observations on the merits. The applicant submitted observations on

14 April 1995. The Government submitted observations on 2 May 1995.

Further information was submitted by the Government on 5 May 1995 and

by the applicant on 23 and 24 May 1995.

11. After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also placed

itself at the disposal of the parties with a view to securing a

friendly settlement. In the light of the parties' reaction, the

Commission now finds that there is no basis on which such a settlement

can be effected.

C. The present Report

12. The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present:

MM. C.A. NØRGAARD, President

H. DANELIUS

C.L. ROZAKIS

E. BUSUTTIL

G. JÖRUNDSSON

S. TRECHSEL

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

G.B. REFFI

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

G. RESS

A. PERENIC

C. BlRSAN

13. The text of this Report was adopted on 5 July 1995 by the

Commission and is now transmitted to the Committee of Ministers of the

Council of Europe, in accordance with Article 31 para. 2 of the

Convention.

14. The purpose of the Report, pursuant to Article 31 of the

Convention, is:

(i) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose

a breach by the State concerned of its obligations under

the Convention.

15. The Commission's decision on the admissibility of the application

is attached hereto as Appendix I.

16. The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

a. The asylum proceedings

17. On 30 October 1990 the applicant came to Austria.

18. On 4 November 1990 the applicant applied for asylum. On

27 November 1990 he was heard by the Lower Austria Public Security

Authority (Sicherheitsdirektion). He submitted in particular that his

uncle had been an active member of the United Somali Congress (USC).

His father and his brother, who had not been members of the USC, but

had supported his uncle's activities, had been executed in May 1990.

Since then, he himself and his whole family were suspected of being

members of the USC and of having participated in rebellious activities.

His car had been confiscated and he had been beaten and injured. He had

left Somalia for fear of being arrested and executed.

19. On 19 April 1991 the Styria Public Security Authority dismissed

the applicant's request. It found that the applicant had failed to show

that he was persecuted in his home country.

20. On 30 July 1991 the Graz District Court (Bezirksgericht)

convicted the applicant of damage to property (Sachbeschädigung) and

sentenced him to three weeks' imprisonment, suspended on probation.

21. On 15 May 1992 the Federal Ministry for the Interior (Bundes-

ministerium für Inneres), on the applicant's appeal, granted him

asylum, referring to the relevant legislation. The Ministry noted in

particular his alleged activities for an opposition party and the

notorious situation in his country of origin. It found that the

credibility of the applicant's submissions could not be denied and that

there were reasonable grounds for believing that he would be persecuted

in case of his return to Somalia. Therefore, he had the status of a

refugee and was entitled to reside in Austria.

22. On 25 August 1993 the Graz Regional Court (Landesgericht)

convicted the applicant of attempted robbery and sentenced him to two

and a half years' imprisonment. The Court found that he had, on

30 March 1993, together with an accomplice hit a pedestrian in the face

and had attempted to take the wallet from his pocket. The sentence

became final on 7 March 1994.

23. On 15 July 1994 the Graz Federal Office for Asylum

(Bundesasylamt), referring to S. 5 para. 1 subpara. 3 of the Asylum Act

(Asylgesetz), withdrew the applicant's right to asylum because of his

conviction.

24. On 12 September 1994 the Ministry for the Interior dismissed the

applicant's appeal. The Ministry noted the applicant's submission that

he would be persecuted upon his return on the ground that he belonged

to General Aideed's clan. The Ministry referred to S. 5 para. 1

subpara. 3 of the Asylum Act in connection with Article 33 para. 2 of

the Geneva Convention relating to the Status of Refugees (Refugee

Convention), and stated that the right to asylum may be withdrawn if

a refugee is convicted, by a final sentence, of a particularly serious

crime and is, therefore, a danger to the community in the country of

asylum. It followed from S. 37 para. 4 of the Austrian Aliens Act

(Fremdengesetz), that the Austrian legislator considered any crime

punishable with more than five years' imprisonment as a particularly

serious crime within the meaning of Article 33 para. 2 of the Refugee

Convention. The applicant had been convicted of attempted robbery,

which was punishable with one to ten years' imprisonment, and the

sentence had become final. Thus, the conditions for withdrawing his

right to asylum were met.

25. On 2 February 1995 the Administrative Court (Verwaltungsgerichts-

hof), on the applicant's complaint, quashed the decision by the

Ministry for the Interior of 12 September 1994. It confirmed the

Ministry's view that the term "particularly serious crime", which is

not defined in Article 33 para. 2 of the Refugee Convention, was to be

read in connection with S. 37 para. 4 of the Aliens Act as referring

to a crime punishable with more than five years' imprisonment. The

crime of which the applicant had been convicted was punishable with one

to ten years' imprisonment. However, it did not follow automatically

from such a conviction that the person concerned was a danger to the

community within the meaning of Article 33 para. 2 of the Refugee

Convention. The purpose of this provision was to weigh the interest of

the receiving state in protecting the community against the refugee's

interest in being protected against a danger to his life or security.

Therefore, an assessment of the particular case had to be made, taking

into account, inter alia, the circumstances of the crime committed by

the refugee and his conduct since the commission of the crime. In the

proceedings before the Administrative Court, the applicant was

represented by Mr. Vacarescu.

26. On 10 April 1995 the Ministry for the Interior gave a new

decision, finding that the conditions laid down in S. 5 para. 1 (3) of

the Asylum Act for withdrawing the right to asylum were met in the

applicant's case. The Ministry, referring to the Administrative Court's

decision, noted in particular that the applicant had been convicted for

a particularly serious crime within the meaning of Article 33 para. 2

of the Refugee Convention. Further, he had, in 1991, been convicted of

damage to property and been sentenced to three weeks' imprisonment,

suspended on probation. In March 1992 he had been ordered to pay a fine

of AS 1,000 for unruly behaviour (ungestümes Benehmen) at a police

station. In December 1992 a criminal information on the suspicion of

having caused damage to property had been filed against him. These

incidents, though each one of them was rather minor, showed in their

entirety that he had a tendency to act aggressively. Thus, it could not

be excluded that he might commit further crimes in the future.

Consequently, he was a danger to the community.

b. The proceedings under the Aliens Act

27. On 14 November 1994 the Graz Federal Police Authority (Bundes-

polizeidirektion) imposed an unlimited residence ban (unbefristetes

Aufenthaltsverbot) based on S. 18 para. 1 and para. 2 subpara. 1 of the

Aliens Act (Fremdengesetz) on the applicant. It noted that the

applicant had been convicted of attempted robbery. Given the

seriousness of the crime, his residence would disturb public order and

security. Further, the Police Authority ordered that the applicant be

detained with a view to his expulsion (Schubhaft) as soon as his prison

sentence terminated.

28. On 22 November 1994 the Graz Federal Police Authority requested

a "laissez-passer" for the applicant from the Somalian embassy. In the

request it was stated explicitly that the "laissez-passer" was needed

for the purpose of returning the applicant to Somalia.

29. On 30 November 1994 the applicant informed the Graz Federal

Police Authority that he had nominated Mr. Vacarescu as his counsel.

He requested, in accordance with S. 54 of the Aliens Act, that a

declaratory decision be taken that his expulsion to Somalia would be

inadmissible as being contrary to Article 3 of the European Convention

on Human Rights, or for exposing him to persecution within the meaning

of the Geneva Convention relating to the Status of Refugees. He

referred in particular to the results of the 1992 asylum proceedings.

30. Also on 30 November 1994 the applicant lodged an appeal against

the residence ban of 14 November 1994.

31. On 10 December 1994 the Styria Public Security Authority

dismissed the applicant's appeal. However, it decided that the

residence ban should only be valid for ten years. The Public Security

Authority found that the issuing of the residence ban was in accordance

with S. 18 para. 1 and para. 2 subpara. 1 of the Aliens Act, given the

applicant's conviction for attempted robbery. It further noted that the

applicant, following the withdrawal of his right to asylum by decision

of 12 September 1994, did not have the right to reside in Austria any

more. The Public Security Authority also found that the interest in

issuing a residence ban outweighed the applicant's interest in staying

in Austria, as he had only spent four years in Austria and had not been

integrated. Furthermore, he had no family ties in Austria.

32. On 14 December 1994 the applicant, upon his conditional release

(bedingte Entlassung) from prison, was taken into detention at the Graz

Police Prison with a view to his expulsion.

33. On 23 January 1995 the Styria Independent Administrative Tribunal

(Unabhängiger Verwaltungssenat) found that the applicant's further

detention would be unlawful, as it was already obvious that his

expulsion could not take place within the two-months' time-limit

provided for in the Aliens Act. The Administrative Tribunal noted in

particular that the European Commission of Human Rights, on

20 January 1995, had decided to prolong the application of Rule 36 of

its Rules of Procedure until the end of its next session in the

beginning of March. As long as the interim measure was applied, the

applicant's expulsion would be contrary to S. 37 para. 6 of the Aliens

Act. Moreover, the Graz Federal Police Authority had failed to take a

decision under S. 54 of the Aliens Act without delay, concerning the

question whether the applicant's expulsion to Somalia would be

admissible. Finally, given the recent escalation of the situation in

Somalia, it was not even sure whether it would actually be possible to

carry out an expulsion to that country.

34. Following the decision of the Independent Administrative

Tribunal, the applicant was released.

35. On 26 April 1995 the Graz Federal Office for Asylum heard the

applicant in proceedings, introduced ex officio under S. 37 para. 5 of

the Aliens Act. The applicant submitted in particular that the

situation had deteriorated since his flight in 1990. He was a member

of the Hawiye clan, which at that time was persecuted by the

government. Like all big clans it was divided internally. When he had

fled, his clan was supporting General Aideed, but it had later broken

away from him and would now also be persecuted by his forces. His clan

lived north of Mogadishu in the interior of the country. At present

several clans were fighting in Mogadishu, mainly those of General

Aideed and Ali Mahdi Mohamed. It could not be said which one of them

had control of the airport.

36. On 27 April 1995 the Graz Federal Office for Asylum rendered a

decision under S. 37 para. 5 of the Aliens Act. It noted the

applicant's submissions in the 1994 proceedings relating to the

withdrawal of his right to asylum and his submissions of 26 April 1995.

The Federal Office for Asylum found that, even assuming that the

applicant risked to be persecuted by other clans upon his return to

Somalia, his expulsion was admissible under S. 37 para. 4 of the Aliens

Act. He had been convicted for a crime which was punishable with more

than five years' imprisonment as, on 7 March 1993, his conviction for

attempted robbery had become final. Further, he had, in 1991, been

convicted of damage to property and had been sentenced to three weeks'

imprisonment, suspended on probation. In December 1992 a criminal

information had been filed against him on the suspicion of having

caused damage to property. These proceedings had been discontinued.

Thus, he had committed further offences, which showed in their entirety

that he had a tendency to act aggressively and was, therefore, a danger

to the community. Subsequently, the applicant lodged an appeal with the

Federal Ministry for the Interior, claiming in particular that the

Federal Office for Asylum had failed to assess the current situation

in Somalia. These appeal proceedings are still pending.

37. On 4 May 1995 the Graz Federal Police Authority, acting upon the

applicant's request of 30 November 1994, gave a decision under S. 54

of the Aliens Act. It found that there were no substantial grounds for

believing that the applicant, upon return to Somalia, would be in

danger of being subjected to treatment contrary to S. 37 para. 1 of the

said Act. Referring to case-law of the Administrative Court, the

Federal Police Authority found that such a danger had to emanate from

the State. In Somalia however, a State authority did not exist any more

since the Government of the former President Siad Barré had been

overthrown. As regards S. 37 para. 2, the applicant had failed to

submit that his life or security would be endangered on any of the

grounds listed. Moreover, the Graz Federal Office for Asylum had found

that the applicant's expulsion was admissible.

38. On 22 May 1995 the applicant lodged an appeal with the Styria

Public Security Authority. He submitted in particular that a danger of

inhuman treatment under S. 37 para. 1 of the Aliens Act or under

Article 3 of the Convention, respectively, did not necessarily have to

emanate from the State. Moreover, the Federal Police Authority had

failed to acknowledge that the applicant had been granted asylum and

that therefore substantial grounds had been shown for believing that

he would be exposed to a danger within the meaning of S. 37 para. 2 if

returned to Somalia. The Federal Police Authority had not established

any facts to the contrary. These appeal proceedings are also still

pending.

B. The evidence before the Commission

39. The Commission firstly had regard to the evidence obtained at the

domestic level.

40. In addition, the Commission requested the United Nations High

Commissioner for Refugees (UNHCR) for recent information on the

situation in Somalia. The most relevant parts of UNHCR's "Background

Paper on Somali Refugees and Asylum seekers", dated October 1994, may

be summarised as follows.

41. In January 1991 the Government of the former President Siad Barré

was overthrown. Since then a civil war, which is marked by clan

allegiances and conflicts, is dominating the country. By the end of

1991 it was evident that no central Government existed any more. In

December 1992 U.S. troops arrived in order to restore order. In May

1993 the United Nations mission for Somalia replaced them. It soon got

caught up in fighting with faction leader Mohamed Farah Aideed. In

March 1994 a cease-fire agreement was concluded in Nairobi between the

fifteen main fighting factions, three being assembled in the Somali

National Alliance (SNA), which is dominated by General Aideed's faction

of the divided USC, the other twelve belonging to the Somalia Salvation

Alliance (SSA) backing Ali Mahdi Mohamed. General Aideed's power base

is the Habar Gedir Hawiye clan, while Ali Mahdi Mohamed belongs to the

Abgal Hawiye clan. A peace conference which was scheduled for May 1994

was postponed to October 1994. As no progress towards peace was made

in the summer of 1994, the UN Security Council made first moves to

withdraw troops from Somalia. In October 1994 renewed fighting was

reported from Mogadishu.

42. Somali population is described as being ethnically homogeneous.

However, Somali people are divided into a number of clan families, the

six most important of which are the Dir, Darood, Isaaq, Hawiye, Digil

and Rahanweyn. Each of these families is divided into sub-clans and

lineage systems. Clan divisions, whereby identification with sub-clans

is even more important than with clans, are considered to play a role

similar to that of ethnic divisions in other African countries. The

whole clan organization is considered to be an unstable, fragile

system, characterised at all levels by shifting allegiances. Membership

of a particular clan appears to directly place a person at risk vis-a-

vis hostile militias based on other clans or sub-clans.

C. Relevant law

1. Asylum Act

43. S. 5 para. 1 subpara. 3 of the Asylum Act (Asylgesetz) provides

that a refugee loses the right to asylum, inter alia, if the conditions

set out in Article 33 para. 2 of the Geneva Convention relating to the

Status of Refugees (see below) are met.

2. Aliens Act

44. According to S. 18 para. 1 of the Aliens Act (Fremdengesetz), a

residence ban may be issued against an alien if there are reasonable

grounds for believing that his stay will disturb public order or

security (subpara. 1) or that it will be contrary to the public

interest, as provided for in Article 8 para. 2 of the European

Convention for the Protection of Human Rights and Fundamental Freedoms

(subpara. 2). Paragraph 2 of S. 18 illustrates cases in which

"reasonable grounds" within the meaning of para. 1 are given, e.g. if

an alien has been sentenced to more than three months' imprisonment by

an Austrian court, and this judgment has become legally effective

(subpara. 1).

45. S. 37 deals with cases where it is prohibited to expel an alien.

Paragraph 1 states that an alien may not be expelled to a State, if

there are firm reasons to believe that he would be in danger of being

subjected to inhuman treatment or punishment or to capital punishment

in that State.

46. S. 37 para. 2 refers to Article 33 (1) of the Geneva Convention

relating to the Status of Refugees (see below), and provides that an

alien may not be expelled to a State if there are firm reasons to

believe that in that State his life or his security would be endangered

on the grounds of his race, religion, nationality or adherence to a

social group or on the grounds of his political opinions.

47. S. 37 para. 4 refers to Article 33 para. 2 of the Geneva

Convention relating to the Status of Refugees (see below) and states

that the expulsion of an alien to a State, in which he would be

endangered within the meaning of paragraph 2, may only be carried out

if he is, on serious grounds, a threat to the security of the Republic

of Austria or if, after a conviction for a crime which is punishable

with more than five years' imprisonment, he presents a danger to the

community.

48. S. 37 para. 5 states that the asylum authority (in cases under

S. 5 para. 1 subpara. 3 of the Asylum Act), or (in other cases) the

Public Security Authority, have to take a decision as to whether the

conditions under the aforementioned paragraph 4 are met.

49. S. 37 para. 6 provides that an alien may not be expelled as long

as this would be contrary to an interim measure taken by the European

Commission of Human Rights or the European Court of Human Rights.

50. S. 54 para. 1 states 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, is

endangered within the meaning of S. 37 para. 1 or 2.

51. S. 54 para. 2 provides that such a request may, inter alia, be

made during proceedings concerning the issue of a residence ban and

that the alien has to be informed in time of the possibility to make

the request.

52. According to S. 54 para. 3, the decision on an appeal against a

ruling that the expulsion to a particular State is admissible has to

be taken within a week.

53. S. 54 para. 4 states that an expulsion may not be carried out as

long as the decision relating to the request under S. 54 has not become

final.

3. Geneva Convention relating to the Status of Refugees

54. Article 33 of the Geneva Convention relating to the Status of

Refugees reads:

"1. No Contracting State shall expel or return a refugee in any

manner whatsoever to the frontiers of territories where his life

or freedom would be threatened on account of his race, religion,

nationality, membership of a particular social group or political

opinion.

2. The benefit of the present provision may not, however, be

claimed by a refugee whom there are reasonable grounds for

regarding as a danger to the security of the country in which he

is, or who, having been convicted by a final judgement of a

particularly serious crime, constitutes a danger to the community

of that country."

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

55. The Commission has declared admissible the applicant's complaint

that his expulsion to Somalia would expose him to a real risk of

torture or inhuman or degrading treatment in that country.

B. Point at issue

56. Accordingly, the issue to be determined is whether the

applicant's expulsion to Somalia would be in violation of Article 3

(Art. 3) of the Convention.

C. Article 3 (Art. 3) of the Convention

57. The applicant invokes 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."

58. The applicant submits that his return to Somalia would expose him

to a serious risk of being arrested, tortured or executed. In this

respect he particularly refers to the decision of the Austrian Ministry

for the Interior granting him asylum in 1992.

59. The Government consider that the application is unfounded. They

submit that it is not clear from the Convention organs' case-law that

an expulsion to a country in a state of civil war is to be regarded as

a violation of Article 3 (Art. 3) of the Convention. There are no

circumstances in the case which would militate against the applicant's

expulsion to Somalia.

60. The Commission recalls that Contracting States have the right,

as a matter of well-established international law and subject to their

treaty obligations including Article 3 (Art. 3), to control the entry,

residence and expulsion of aliens. 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).

61. The Commission, therefore, has to determine whether the applicant

has shown the existence of a real risk of being subjected to treatment

contrary to Article 3 (Art. 3) of the Convention upon his return to

Somalia.

62. In this context the Commission notes that the applicant was

granted asylum in Austria in 1992. The Ministry for the Interior, in

its decision of 15 May 1992, granting the applicant asylum, referred

in particular to the applicant's alleged activities for an opposition

party and the notorious situation in his country of origin. When

applying for asylum in November 1990, the applicant had submitted that

his uncle had been an active member of the USC and that his father and

brother, who had supported his activities had been executed in May

1990. Since then he and his whole family had been suspected of being

USC members and of having participated in rebellious activities. The

Ministry found that his submissions were credible and that there were

reasonable grounds for believing that he would be persecuted in case

of his return to Somalia.

63. On 15 July 1994 the Federal Office for Asylum withdrew the

applicant's right to asylum on the ground that he had been convicted

of attempted robbery, and sentenced to two and a half years'

imprisonment. On 12 September 1994 the Ministry for the Interior

confirmed this decision. In a further decision of 10 April 1995,

following appeal proceedings before the Administrative Court, the

Ministry for the Interior again found that the applicant's right to

asylum should be withdrawn. It considered in particular that the

applicant had committed a particularly serious crime within the meaning

of S. 5 para. 1 (3) of the Asylum Act. Further, referring to several

other incidents, it found that he had a tendency to act aggressively

and was, therefore, a danger to the community.

64. Subsequently, two sets of proceedings were conducted in order to

establish whether the applicant's expulsion to Somalia was admissible.

One set of proceedings was introduced ex officio by the Graz Federal

Office for Asylum in 1995 under S. 37 para. 5 of the Aliens Act. It

heard the applicant, who submitted inter alia that his clan, which had

supported General Aideed when he fled, had meanwhile broken away from

him and was, therefore, persecuted by his forces. However, the Federal

Office for Asylum, in its decision of 27 April 1995, found that, even

assuming that the applicant would be persecuted by other clans upon his

return to Somalia, his expulsion was admissible as he had been

convicted of criminal offences and was a danger to the community. It

adduced the same reasons as the Ministry for the Interior in its

decision to withdraw the applicant's right to asylum. The second set

of proceedings was started upon the applicant's request of

30 November 1994 under S. 54 of the Aliens Act. The applicant,

referring in particular to the result of the 1992 asylum proceedings,

submitted that his expulsion to Somalia would be contrary to Article 3

(Art. 3) of the Convention. The Graz Federal Police Authority, on

4 May 1995, found that the applicant's expulsion was admissible. It

considered in particular that only a danger of ill-treatment emanating

from the State could prohibit expulsion. However, in Somalia a State

authority did not exist any more. The applicant lodged appeals against

both decisions. The appeal proceedings are still pending.

65. The Commission attaches particular weight to the fact that the

applicant was granted asylum in May 1992. The Austrian Ministry for the

Interior referred in particular to the applicant's alleged activities

for the USC and the general situation in his country and found that he

would risk persecution in Somalia. In the asylum proceedings, the

Austrian authorities had to consider basically the same elements under

Austrian law as the Commission must consider under Article 3 (Art. 3).

Moreover, they heard the applicant and, thus had the benefit of a

personal impression.

66. Further, the Commission observes that the competent domestic

authorities, in their subsequent decisions relating to the withdrawal

of the applicant's right to asylum and to the question whether the

applicant's expulsion to Somalia was admissible, have not adduced any

arguments in order to establish that the situation had changed to an

extent that the applicant would no longer risk persecution, if returned

to Somalia. Nor have the Austrian Government made any submissions to

this effect in the proceedings before the Commission.

67. On the basis of the material before the Commission, there is no

indication that the situation has changed fundamentally since May 1992,

when the applicant was granted asylum. At that time, Somalia had

already been in a state of civil war for more than a year, following

the overthrow of the Government of President Siad Barré in

January 1991. This civil war, which is marked by clan allegiances and

conflicts, is still ongoing. It appears that the applicant's clan,

which originally supported the USC, one faction of which is led by

General Aideed, meanwhile broke away from the latter and would now have

to fear persecution from his forces. In this context, the Commission

also notes the UNHCR's assessment, according to which membership of a

particular clan directly places a person at risk vis-a-vis hostile

militias based on other clans or sub-clans.

68. The position of the Austrian authorities that there is no

substantial risk for the applicant since the State authority had ceased

to exist in Somalia cannot be accepted. It is sufficient that those who

hold substantial power within the State, even though they are not the

Government, threaten the life and security of the applicant. That is

clearly the situation in the present case, given the powerful position

of General Aideed.

69. In these circumstances, the Commission does not see any reasons

to question the assessment made by the Austrian authorities in the

asylum proceedings.

70. In conclusion the Commission finds that substantial grounds have

been shown for believing that the applicant faces a real risk of being

subjected to treatment contrary to Article 3 (Art. 3), if returned to

Somalia.

CONCLUSION

71. The Commission concludes, unanimously, that in the present case

the applicant's expulsion to Somalia would be in violation of Article 3

(Art. 3) of the Convention.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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AHMED v. AUSTRIA

AHMED v. AUSTRIA

LEXI