Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 25661/94

Makulu Nsangu

against

Austria

REPORT OF THE COMMISSION

(adopted on 22 May 1995)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-18). . . . . . . . . . . . . . . . . . . . . .1

A. The application

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

B. The proceedings

(paras. 5-13) . . . . . . . . . . . . . . . . . . .1

C. The present Report

(paras. 14-18). . . . . . . . . . . . . . . . . . .2

II. ESTABLISHMENT OF THE FACTS

(paras. 19-47) . . . . . . . . . . . . . . . . . . . . .4

A. The particular circumstances of the case

(paras. 19-43). . . . . . . . . . . . . . . . . . .4

B. The evidence before the Commission

(para. 44). . . . . . . . . . . . . . . . . . . . .7

C. Relevant domestic law

(paras. 45-47). . . . . . . . . . . . . . . . . . .8

III. OPINION OF THE COMMISSION

(paras. 48-62) . . . . . . . . . . . . . . . . . . . . 10

A. Complaint declared admissible

(para. 48). . . . . . . . . . . . . . . . . . . . 10

B. Point at issue

(para. 49). . . . . . . . . . . . . . . . . . . . 10

C. Article 3 of the Convention

(paras. 50-61). . . . . . . . . . . . . . . . . . 10

CONCLUSION

(para. 62). . . . . . . . . . . . . . . . . . . . 12

APPENDIX I : DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION . . . . . . 13

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 Zairese citizen, born in 1967 and currently

resident in Vienna. She was represented before the Commission by

Mr. G. Liedermann, a lawyer practising in Vienna.

3. The application is directed against Austria. The respondent

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

Head of the International Law Department at the Federal Ministry of

Foreign Affairs.

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

to Zaire would expose her to the risk of being arrested, tortured or

even killed, on account of her husband's activities for an opposition

party. The applicant invokes Article 3 of the Convention.

B. The proceedings

5. The application was introduced on 14 November 1994 and registered

the same day.

6. On 14 November 1994 the President of the Commission decided to

apply Rule 36 of the Commission's Rules of Procedure. On

9 December 1994, 19 January, 2 March and 12 April 1995 the Commission

decided to prolong the application of Rule 36.

7. Also on 14 November 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 30 November 1994.

The applicant replied on 6 December 1994.

9. On 9 December 1994 the Commission decided, pursuant to

Rule 50 (a) of its Rules of Procedure, to invite the respondent

Government to submit further observations on the admissibility and

merits of the application.

10. On 2 January 1995 the Government submitted their further

observations, to which the applicant replied on 10 January 1995.

11. On 19 January 1995 the Commission declared admissible the

applicant's complaint that her expulsion to Zaire would expose her to

a real risk of torture or inhuman treatment or punishment in that

country. It declared inadmissible the remainder of the application.

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

to the parties on 24 January 1995 and they were invited to submit such

further information or observations on the merits as they wished. The

applicant submitted further information and observations on

20 March 1995. The Government made no further submissions.

13. 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

14. 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

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

M.A. NOWICKI

I. CABRAL BARRETO

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

15. The text of this Report was adopted on 22 May 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.

16. 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.

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

is annexed hereto as Appendix I.

18. 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

19. In May 1990 the applicant came to Austria with her husband, who

was employed as a cook at the Zairese embassy in Vienna.

20. On 21 September 1992 the applicant's husband filed a request for

asylum. In accordance with S. 4 of the Austrian Asylum Act, this

request was extended also to cover his wife, the applicant, and their

two children, born in 1985 and 1987.

21. On 7 October 1992 the Federal Office for Asylum (Bundesasylamt)

rejected the request by the applicant's husband.

22. Subsequently, the applicant's husband lodged an appeal with the

Federal Ministry for the Interior (Bundesministerium für Inneres). On

7 May 1993 the applicant's husband submitted a number of documents in

support of his appeal:

- a letter of 10 January 1993 from the Secretary General of the

Union for Democracy and Social Progress (Union pour la Démocratie

et le Progrès Social - UDPS) in Kinshasa to the Zairese Socialist

Party in Vienna, for the attention of its president, Mr. Ngongo,

informing the latter that the applicant's husband was an active

member of the UDPS and asking him to intervene in favour of the

applicant before the Austrian authorities;

- a personal letter of 23 April 1993 from the First Secretary of

the Zairese embassy in Paris, addressing the applicant's husband

as "Dear brother" and transmitting a secret message to him;

- a telefax of 10 April 1993, allegedly sent with the above letter,

entitled "Transmis de Présidence", addressed to several Zairese

embassies in Europe, including the one in Vienna, calling for the

repatriation or, if not possible, for the taking of radical and

urgent measures against a number of persons, including the

applicant's husband, and stating that the persons listed were

dangerous, subversive elements; and

- a summons dated 14 April 1993 to appear before the Zairese

immigration authorities.

23. On 12 May 1993 the Federal Ministry for the Interior

(Bundesministerium für Inneres) dismissed the appeal by the applicant's

husband. The Ministry noted he had been heard by the Federal Office

for Asylum on 24 September and 1 October 1992, and had made the

following submissions: He held a critical view of the Zairese regime.

In December 1991, when he was ordered to go on a mission to Zaire,

another employee of the embassy informed him about the existence of a

telex in which the secret service had requested his return. Thereupon,

he refused to go to Zaire and was dismissed, but was reinstated soon

after. In April 1992 the ambassador ordered him to poison a politician

belonging to the opposition party, who was on visit in Vienna. When

he refused to do so, the ambassador stopped paying him his salary,

which he thought would force him to return to Zaire. In May 1992 he

was again ordered to go home, but refused to leave. He was afraid of

being killed if he returned to Zaire.

24. The Ministry found that the applicant's husband had continued to

work at the Zairese embassy in Vienna from December 1991 until

September 1992, although he had repeatedly been ordered to return to

Zaire. Moreover, he had not been able to name the opposition party to

which he allegedly belonged. Thus it was not credible that he was a

member of such a party. Further, the Ministry noted that according to

several reports a multi-party system had been introduced in Zaire in

April 1990. As regards the documents submitted by the applicant, the

Ministry found that they did not support the allegation that he would

be subject to persecution in Zaire, as it was unclear how he had

obtained them. Moreover, the wording of the letter of 23 April 1993

from the Zairese embassy in Paris indicated that it was not an official

document but a forgery. The summons of 14 April 1993 to appear before

the Zairese immigration authority did not suffice to establish his

status as a refugee.

25. On 2 June 1993 the Federal Office for Asylum rejected the

applicant's request for asylum. It referred to the decision of

12 May 1993 by the Ministry for the Interior, which had rejected her

husband's request for asylum, and stated that her request under S. 4

of the Asylum Act had, therefore, also to be rejected. On 15 July 1993

the Federal Ministry for the Interior dismissed the applicant's appeal.

26. On 23 December 1993 the applicant's husband lodged a complaint

with the Administrative Court against the decision of 12 May 1993 by

the Ministry for the Interior. He also requested that his complaint

be granted suspensive effect, which was refused by the Administrative

Court on 14 January 1994.

27. On 4 July 1994 the Vienna Police Directorate (Bundespolizei-

direktion) ordered the applicant's detention with a view to her

expulsion, on the ground that she was residing illegally in Austria

since her request for asylum had been rejected at second instance and

she did not have the necessary means for her maintenance. On

4 July 1994 the applicant was taken into custody at the Vienna Police

Prison.

28. On 7 July 1994 the Vienna Police Directorate, after having heard

the applicant, issued a residence ban (Aufenthaltsverbot) against her,

which is valid for five years. The Police Directorate referred to the

results of the asylum proceedings. It found that the applicant was

residing illegally in Austria and did not possess the necessary means

for her maintenance. As she, as well as her husband and children, had

only been resident for about four years and she did not speak German,

she had not been integrated. Thus the interest in protecting the

economic well-being of Austria outweighed her interest in staying.

29. On 12 July 1994 the Vienna Police Directorate rendered a

declaratory decision under S. 54 of the Aliens Act (Fremdengesetz).

It stated that the applicant, at the hearing of 7 July 1994, had made

a request for such a decision and had submitted the same reasons, which

had already been stated in the asylum proceedings. Referring to the

results of these proceedings, the Police Directorate found that the

applicant's expulsion to Zaire would not be contrary to S. 37 of the

Aliens Act. This provision prohibits the expulsion of an alien to a

State, inter alia, if there are firm reasons to believe that, in the

receiving State, he would be subject to inhuman treatment or

punishment, or capital punishment, or that he would be persecuted

within the meaning of the Geneva Convention on the Status of Refugees.

30. On 16 July 1994 the applicant filed an appeal against the

residence ban of 7 July 1994. She submitted in particular that she and

her family had been living in Austria for four years. Her children

went to school there and spoke German, like Austrian children of a

comparable age. Further, they received maintenance from private

charitable organisations and did not live on any public benefits.

31. On 25 July 1994 the Vienna Independent Administrative Senate

(Unabhängiger Verwaltungssenat) dismissed the applicant's complaint

concerning the lawfulness of her detention with a view to her

expulsion.

32. On 8 August 1994 the Federal Ministry for the Interior dismissed

the applicant's appeal concerning the residence ban against her. The

Ministry found that the ban was justified under Article 8 of the

Convention as it was necessary, inter alia, for the prevention of

crime. The applicant and her family had only been legally resident in

Austria for a relatively short period and were not well integrated.

33. On 9 September 1994 the applicant filed a request with the Vienna

Police Directorate, in which she submitted that the declaratory

decision of 12 July 1994, relating to the question whether her

expulsion to Zaire would be prohibited under S. 37 of the Aliens Act,

had been issued without legal basis, as she had not requested such a

decision. She asked that the proceedings be reopened.

34. The applicant submitted that she would be persecuted in Zaire on

account of the political activity of her husband, who was an active

member of the UDPS and had used his position at the embassy to support

this party. The applicant also submitted a number of documents relating

to her husband's political activity. They included the following:

- copies of two telexes of 21 December 1991 and 14 May 1992,

respectively, addressed to the embassy in Vienna, which both

stated that the applicant's husband was a subversive element and

urged that he be returned to Zaire;

- a telefax of 10 April 1993 entitled "Transmis de

Présidence", addressed to several Zairese embassies in Europe

including the one in Vienna, calling for the repatriation or, if

not possible, for the taking of "radical and urgent measures"

against a number of persons, including the applicant's husband

and stating that the persons listed are dangerous, subversive

elements;

- letters of 3 and 5 March 1993 and 14 April 1993 by the

President of the Zairese Socialist Party in Vienna, Mr. Ngongo,

to the Austrian Ministry for the Interior, stating that her

husband and another person, M.F., had used their position at the

embassy to pass on information to the opposition and that they

and their families would be in danger if returned to Zaire.

35. On 22 September 1994 the Vienna Police Directorate forwarded the

file to the Vienna Security Directorate (Sicherheitsdirektion). It

added a comment according to which the applicant, although she had not

expressly made a request under S. 54 of the Aliens Act, had submitted

that she would be persecuted and killed if returned to Zaire.

36. On 23 September 1994 the Security Directorate returned the file,

informing the Police Directorate that it did not intend to quash the

latter's decision of 12 July 1994. However, the Police Directorate

would have to decide on the applicant's request for a reopening of the

proceedings at issue. It appears that the Police Directorate did not

take any decision in this respect.

37. On 25 September 1994 police officers took the applicant and

another person to Vienna airport in order to expel them to Zaire.

However, in view of their strong resistance, they were returned to the

Vienna Police Prison.

38. On 28 September 1994 the applicant requested the Vienna Police

Directorate to stay her expulsion. She referred to the entirety of her

submissions of 9 September 1994. She also submitted that her children,

born in 1985 and 1987, would suffer from being separated from her.

Finally, she pointed out that her husband's request for asylum was

still pending before the Administrative Court.

39. On 7 November 1994 the Vienna Police Directorate dismissed the

applicant's request. As regards her submissions that her expulsion

would expose her to a risk of being persecuted in Zaire, and would

therefore be contrary to S. 37 of the Aliens Act, the Police

Directorate found that it had already given its decision in this

respect on 12 July 1994. The new documents submitted by her mostly

concerned her husband or a third person. They were not adequate to

establish that she risked persecution. The other reasons invoked by

her, namely that her husband's asylum proceedings were still pending

and that her children were in Austria, were not relevant in the

proceedings at issue.

40. On 4 November 1994 the Vienna Police Directorate received a

certificate by the Zairese embassy in Brussels, confirming that the

applicant would be allowed entry into Zaire (Heimreisezertifikat).

41. On 16 November 1994 the applicant was released.

42. Following the Administrative Court's decision of

15 September 1994, quashing the decision of 12 May 1993 by the Ministry

for the Interior which had dismissed the asylum request of the

applicant's husband, the husband's proceedings are, since

2 December 1994, again pending before the Ministry for the Interior.

43. On 23 December 1994 the applicant filed a renewed request with

the Ministry for the Interior, to extend, in accordance with S. 4 of

the Asylum Act, her husband's right to asylum to her and their two

minor children or, eventually, to grant asylum to her. She claimed that

her husband was an active member of the UDPS and submitted inter alia

the documents, which she had submitted to the Vienna Police Directorate

with her request of 9 September 1994. The proceedings before the

Ministry for the Interior are still pending.

B. The evidence before the Commission

44. The Commission had regard to the following documents, most of

which had already been produced in the domestic proceedings, and to

other evidence obtained at the domestic level. It considered in

particular copies of:

- two telexes of 21 December 1991 and 14 May 1992, respectively,

addressed to the embassy in Vienna, which both stated that the

applicant's husband was a subversive element and urged that he

be returned to Zaire;

- a letter of 10 January 1993 from the Secretary General of the

UDPS in Kinshasa to the Zairese Socialist Party in Vienna, for

the attention of its president, Mr. Ngongo, informing the latter

that the applicant's husband was an active member of the UDPS and

asking him to intervene in favour of the applicant before the

Austrian authorities;

- letters of 3 and 5 March 1993 and 14 April 1993 by the

President of the Zairese Socialist Party in Vienna, Mr. Ngongo,

to the Austrian Ministry for the Interior, stating that the

applicant's husband and another person, M.F., had used their

position at the embassy to pass on information to the opposition

and that they and their families would be in danger if returned

to Zaire.

- a personal letter of 23 April 1993 from the First Secretary of

the Zairese embassy in Paris, addressing the applicant's husband

as "Dear brother" and transmitting a secret message to him;

- a telefax of 10 April 1993, allegedly sent with the above

letter, entitled "Transmis de Présidence", addressed to several

Zairese embassies in Europe, including the one in Vienna, calling

for the repatriation or, if not possible, for the taking of

radical and urgent measures against a number of persons,

including the applicant's husband, and stating that the persons

listed were dangerous, subversive elements;

- two summonses requesting the applicant's husband to appear

before the Zairese Immigration Authorities on 28 June 1993 and

26 August 1993, respectively, stating as a motive "attack on the

security of the state" (atteinte à la securité de l'Etat -

Art. 14/72 Aln. 11).

- a letter dated 24 July 1993 of the UDPS (Sous-Section Rhône-

Alpes) stating that the applicant's husband had helped the party.

C. Relevant domestic law

1. Asylum Act (Asylgesetz)

45. S. 4 of the Asylum Act provides, that, upon request, the grant

of asylum must be extended to the refugee's minor children and his or

her spouse, if these persons are living in Austria and if the marriage

had been concluded before they came to Austria. In the asylum

proceedings, such family members have the same legal position as the

asylum-seeker.

2. Aliens Act (Fremdengesetz)

46. S. 37 of the Aliens Act (Fremdengesetz) 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. Paragraph 2 refers

to Article 33 of the Geneva Convention on the Status of Refugees, and

states 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

opinion. Paragraph 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.

47. S. 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, is endangered within the meaning of S. 37 paragraphs

1 or 2. According to paragraph 2, such a request may, inter alia, be

made during proceedings concerning the issue of a residence ban. The

alien has to be informed promptly of the possibility to make the

request.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

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

that her expulsion to Zaire would expose her to a real risk of torture

or inhuman or degrading treatment in that country.

B. Point at issue

49. Accordingly, the issue to be determined is whether the expulsion

of the applicant would be in violation of Article 3 (art. 3) of the

Convention.

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

50. 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."

51. The applicant submits that, if she is expelled to Zaire, she is

in danger of being arrested, tortured or even killed, on account of her

husband's activity, who allegedly used his position at the Zairese

embassy to pass on information to the UDPS, an opposition party, of

which he is a member. The applicant relies in particular on the

documents listed above in order to prove her husband's membership in

the UDPS and to support her allegation that her husband and herself

would be persecuted in Zaire. In addition she submits documents dealing

with the human rights situation in Zaire. They include a report on the

fiftieth session of the United Nations Commission on Human Rights, the

U.S. Department of State Country Reports on Human Rights Practices for

1993 and a report of Amnesty International of February 1994.

52. The Government submit that there are no indications militating

against the applicant's expulsion.

53. 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. 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).

54. In order 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 her return to Zaire, the

Commission has first examined the submissions made by the applicant's

husband and by the applicant in the course of the asylum proceedings.

In this context the Commission notes that the applicant initially did

not file a request for asylum herself but only requested that her

husband's asylum proceedings be extended to cover her and their minor

children in accordance with S. 4 of the Austrian Asylum Act. In a first

set of proceedings, which started in September 1992, the Ministry for

the Interior dismissed the husband's request for asylum. Consequently,

the applicant's related request was also dismissed. However, the

Ministry's decision was quashed by the Administrative Court on

15 September 1994, and the husband's asylum proceedings are again

pending before the Ministry for the Interior. The applicant, on

23 December 1994, again filed a request to extend her husband's asylum

to her, but also requested, eventually, that she herself be granted

asylum.

55. In the first set of asylum proceedings, the applicant's husband,

according to the decision of the Ministry for the Interior, submitted

inter alia the following: He held a critical view of the Zairese

regime. In December 1991, when he was ordered to go on a mission to

Zaire, another employee of the embassy informed him about the existence

of a telex in which the secret service had requested his return.

Thereupon, he refused to go to Zaire and was dismissed, but was

reinstated soon after. In April 1992 the ambassador ordered him to

poison a politician belonging to the opposition party, who was on visit

in Vienna. When he refused to do so, the ambassador stopped paying him

his salary, which he thought would force him to return to Zaire. In

May 1992 he was again ordered to go home, but refused to leave. The

decision of the Ministry for the Interior further states that the

applicant's husband continued to work at the embassy until

September 1992. In the renewed asylum proceedings the applicant claimed

in particular that her husband was an active member of the UDPS.

56. The Commission notes that the allegations of a risk of ill-

treatment in case of the applicant's return to Zaire only relate to her

husband's activities for the UDPS, whereas there is no clear indication

in the facts that the applicant would run such a risk on account of any

political activities of her own. The Commission finds that the

submissions made by the applicant and her husband contain several

inconsistencies. Before the Commission the applicant claims that her

husband was a member of the UDPS and that he used his position at the

Zairese embassy to pass on information to this party. This must have

occurred in 1990 or 1991, when the applicant was working at the embassy

in Vienna and had not yet been warned that the secret service had

requested his return to Zaire. However, in the first set of asylum

proceedings in 1992 the applicant's husband did neither state that he

was a member of the UDPS, nor did he mention that he passed on

information to this party. According to the decision of the Ministry

for the Interior, he only submitted that he held a critical view of the

Zairese regime, and was not even able to name the opposition party,

which he allegedly supported. Only in the renewed asylum proceedings

in 1994 the applicant claimed that her husband was an active member of

the UDPS.

57. Further, the applicant's husband claims that he was informed in

December 1991 about a telex, in which the secret service requested his

return to Zaire. It has to be assumed that the ambassador knew about

this telex. In these circumstances, it is not convincing that the

ambassador ordered him, in April 1992, to poison a politician of an

opposition party. Moreover, the applicant's husband, despite a renewed

order to return to Zaire in May 1992, only filed his request for asylum

in September 1992 and also continued working at the embassy until that

time.

58. Secondly, the Commission has examined the various documents

submitted by the applicant. It notes that most of these documents have

been presented to the Austrian authorities, partly in the asylum

proceedings concerning the applicant's husband, and partly in

proceedings relating to the applicant's request to stay her expulsion.

The Commission notes that, according to the file, the Austrian Ministry

for the Interior did not hear the applicant's husband on the

credibility of the documents at issue when dismissing his asylum

request in the first set of proceedings. Further, it appears that the

Vienna Police Directorate did not hear the applicant on this question,

when dismissing her request to stay her expulsion.

59. However, the Commission finds that there are serious doubts as

regards the authenticity of the said documents. These doubts relate

either to the contents of the documents as such or to the way in which

the applicant's husband allegedly obtained them. In particular, the

latter claims that he was informed about a secret telex in December

1991 by another employee of the embassy in Vienna. However, it appears

that he did not submit the said telex to the Austrian authorities in

the 1992 asylum proceedings and it remains unclear how he obtained the

copy, which the applicant now presents to the Commission. As regards

the letter of 23 April 1993, it appears very unlikely that a high

official of the Zairese embassy in Paris, even if he did warn the

applicant's husband of measures pending against him, would have

produced a written proof of his disloyalty. This consideration also

casts doubt on the authenticity of the telefax of 10 April 1993, which

was allegedly transmitted with this letter and calls for the

repatriation of the applicant's husband, or for the taking of "radical

and urgent measures" against him.

60. The Commission equally questions the authenticity of the

two summonses to appear before the Zairese Immigration Authorities on

28 June 1993 and 26 August 1993. There is no indication in the file of

how the applicant's husband obtained these documents. Moreover, there

is no reason, why the Zairese authorities, who purportedly knew that

the applicant's husband was resident in Austria, should have tried to

summon him in Zaire. The further documents do not suffice to show that

the applicant or her husband would be persecuted in Zaire, on account

of the husband's alleged membership in the UDPS.

61. In these circumstances, the Commission finds that no substantial

grounds have been established for believing that the applicant would

be exposed to a real risk of being subjected to treatment contrary to

Article 3 (art. 3) if returned to Zaire.

CONCLUSION

62. The Commission concludes, by 25 votes to 1, that in the present

case the expulsion of the applicant would not 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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NSANGU v. AUSTRIA

NSANGU v. AUSTRIA

LEXI