EUROPEAN COMMISSION OF HUMAN RIGHTS

                       Application No. 25664/94

                             Funsu Mbemba

                                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. 19-52). . . . . . . . . . . . . . . . . . . . . . . . 4

      A.   The particular circumstances of the case

           (paras. 19-49) . . . . . . . . . . . . . . . . . . . . . 4

      B.   The evidence before the Commission

           (para. 50) . . . . . . . . . . . . . . . . . . . . . . . 9

      C.   Relevant domestic law

           (paras. 51-52) . . . . . . . . . . . . . . . . . . . . .10

III.  OPINION OF THE COMMISSION

      (paras. 53-68). . . . . . . . . . . . . . . . . . . . . . . .12

      A.   Complaint declared admissible

           (para. 53) . . . . . . . . . . . . . . . . . . . . . . .12

      B.   Point at issue

           (para. 54) . . . . . . . . . . . . . . . . . . . . . . .12

      C.   As regards Article 3 of the Convention

           (paras. 55-67) . . . . . . . . . . . . . . . . . . . . .12

           CONCLUSION

           (para. 68) . . . . . . . . . . . . . . . . . . . . . . .14

APPENDIX I   : DECISION OF THE COMMISSION AS TO THE

               ADMISSIBILITY OF THE APPLICATION . . . . . . . . . .15

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 1934 and currently

resident in Vienna.  He 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 his expulsion

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

even killed, on account of his activities for an opposition party. The

applicant invokes Article 3 of the Convention.

B.    The proceedings

5.    The application was introduced on 12 November 1994 and registered

on 14 November 1994.

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 his expulsion to Zaire would expose him to

a real risk of torture or inhuman or degrading treatment 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

8 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 attached 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 Vienna as the private

secretary of the Zairese ambassador.

a.    The asylum proceedings

20.   In 1992 the applicant filed a request for asylum.  According to

the applicant this request was, on 6 May 1992, submitted to the Vienna

Police Directorate, which was at that time competent to deal with it,

and was subsequently, after a change in the law, transmitted to the

Federal Office for Asylum (Bundesasylamt).  According to the

Government, the applicant filed his request for asylum on

24 September 1992.

21.   On 24 September and on 1 October 1992, the applicant was heard

by the Federal Office for Asylum.

22.   According to the records of the hearing of 1 October 1992 he

submitted in particular that, despite his work at the embassy, 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

had given him a copy of a secret telex, which had been sent by the

Zairese secret service to the ambassador, and which referred to him as

being a subversive element.  Thereupon, he refused to go to Zaire and

was dismissed on 2 January 1992.  One month later, the ambassador

reinstated him, but did not pay him his salary any more. He knew that

the embassy was almost insolvent, but thought that his not being paid

had other reasons. In June 1992 he obtained a copy of another secret

telex to the ambassador, having mainly the same contents as the first

one.  He was still formally employed with the embassy, but had been

told that he need not come to work any more, and had recently been

refused access to the building.  The applicant stated that he would be

able to submit the above-mentioned copies of the secret telexes. The

applicant expressed his fear of being killed in case he had to return

to Zaire, as he was known to the secret service as a critic of the

regime.  Moreover, he had been suspected of being the author of

leaflets, which had been distributed in Vienna, and which criticised

President Mobutu's regime.  His wife, who had returned to Zaire in

November 1991, had been refused permission to travel back to Austria

and her passport had been taken away.  He had been informed that she

had fled to the Congo. He had obtained a new passport for her at the

embassy, which he intended to send to her as soon as he had her

address.

23.   On 6 October 1992 the Federal Office for Asylum rejected the

applicant's request.  It found that the applicant, who was still an

employee of the Zairese embassy, had not been subject to any specific

measures of persecution.  The mere fact that he held a critical view

of the Zairese regime did not suffice for recognising him as a refugee.

24.   On 22 October 1992 the applicant filed an appeal with the Federal

Ministry for the Interior (Bundesministerium für Inneres). He submitted

in particular that he was not only a critic of the regime, but a member

of Prime Minister Tshisekedi's opposition party.  The officer of the

security service, present at the embassy, had reported him as such to

the Zairese authorities.  He had stopped working at the embassy in

September.  Before that, his salary had been blocked in order to force

him to return home, where he would risk persecution by the secret

service or the political police.

25.   On 7 May 1993 the applicant submitted to the Ministry a number

of documents in support of his appeal.  They included the following:

      - 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 addressed to the Zairese

      Socialist Party in Vienna, for the attention of its president,

      Mr. Ngongo, informing the latter that the applicant 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 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, and stating that the persons listed were

      dangerous, subversive elements;

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

      immigration authorities;

26.   On 12 May 1993 the Federal Ministry for the Interior dismissed

the applicant's appeal.  The Ministry found that the applicant had

worked at the Zairese embassy in Vienna, even after he had refused to

go on a mission to his home country.  It concluded that the ambassador

did not consider the applicant's criticism of the regime as

significant.  Therefore, there was no reason to assume that he would

be persecuted upon his return to Zaire.  Moreover, the proceedings had

not shown that he had voiced his criticisms publicly and thereby drawn

the authorities' attention to himself.  His submissions, that his

wife's passport was taken away from her, upon her return to Zaire, were

not credible, as he had apparently been able to obtain a new passport

for her at the embassy.

27.   As regards the documents submitted by the applicant, the Ministry

found that they did not support the allegation that he would be subject

to prosecution 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 authorities did not suffice to establish his status as a

refugee.

28.   Subsequently, the applicant, now represented by counsel, lodged

a complaint with the Administrative Court (Verwaltungsgerichtshof).

On 24 February 1994 the Court, on the applicant's request, granted the

complaint suspensive effect.

29.   On 19 October 1994 the Administrative Court, referring to the

Constitutional Court's judgment of 1 July 1994 (which had found that

the relevant provision of the Asylum Act, limiting the scope of review

of the Ministry of the Interior and the Administrative Court in the

appeal proceedings, was unconstitutional) quashed the Ministry's

decision of 12 May 1993.

30.   On 21 and 25 November 1994 the applicant was heard by the Vienna

Office of the United Nations High Commissioner for Refugees.

31.   On 24 November 1994 the Ministry for the Interior requested the

Federal Office for Asylum to conduct a further hearing with the

applicant, relating to his request for asylum.  It added a list of

forty-six questions which should be put to the applicant.  They

concerned in particular the following issues: why had he not submitted

his request for asylum already in December 1991; what were his position

and duties at the embassy; what exactly were his political activities;

who had warned him not to return to Zaire and how had he obtained the

secret telexes; how was it possible for him to obtain a new passport

for his wife, who had allegedly been prevented from travelling back

from Zaire to Austria; how had he obtained the letter of 23 April 1993

by the First Secretary of the Zairese embassy in Paris; by whom would

he be persecuted if returned to Zaire?  The Ministry also pointed out

that the applicant was to be given the possibility of making additional

submissions in view of his appeal.

32.   On 28 November 1994, the Federal Office for Asylum heard the

applicant.  The hearing, which followed the catalogue of questions

prepared by the Ministry for the Interior, was continued on 1 and

5 December 1994.

33.   The applicant submitted in particular that he had not applied for

asylum immediately after receipt of the first secret telexes, as he

wanted to obtain more information and, moreover, did not know where he

had to file a request for asylum. As regards his position he stated

that he had been the private secretary of ambassador B since 1972.  His

duties included the typing of secret reports which the ambassador sent

to the President or to the secret service and the filing of papers,

including confidential messages.  As regards his political activities,

he had been a member, though not an active one, of the MPR (Mouvement

Populaire de la Révolution).  He noted that he would not have obtained

his job otherwise, and that most of today's opposition leaders had once

been members of the MPR.  The UDPS had been founded in 1985 and he had

started to pass on information to them when he worked at the Zairese

embassy in France (1988-1990).  He gave secret documents to the cook

of the embassy, who transmitted them to members of the UDPS.  He

himself never contacted UDPS members personally and never went to UDPS

meetings as he was more rigorously controlled by the secret service.

The applicant submitted that he was persecuted by President Mobutu's

secret service.  He considered that he would be arrested and tortured

or that he might "disappear" if returned to Zaire.

34.   The applicant further submitted that he had been able to obtain

a new passport for his wife as the competent officer at the embassy in

Vienna was also a member of the opposition. As regards the secret

telexes, the applicant stated that L., the employee handling the telex

machine, had given him a copy of the telex of 21 December 1991, when

he had told him that he was to be sent to Zaire.  L. had also given him

a copy of the telex of 14 May 1992.  He did not know of L.'s present

whereabouts, because, as far as he knew, the Zairese embassy in Vienna

had been closed.  As regards the letter of 23 April 1993, he submitted

that it was a private letter which had been sent to his private

address.

35.   On 12 December 1994 the applicant made additional submissions in

view of his appeal. He submitted inter alia that the Ministry for the

Interior, in the first set of proceedings, had, without hearing him,

dismissed the credibility of the documents submitted by him.

36.   On 24 April 1995 the Federal Ministry for the Interior again

dismissed the applicant's request for asylum. It noted that he had been

questioned in detail in the renewed proceedings, but had not been able

to remove inconsistencies in his submissions. In particular, as regards

the delay in lodging his asylum request he had stated that he had

initially not known to which authority he should address himself.

However, he had, at the relevant time, already spent two years in

Austria. Being a high official of the Zairese embassy he must have been

to some extent familiar with the organisation of the Austrian

administration. It was not credible that he was not capable of finding

out where to file an asylum request. Further, in his initial request

for asylum, he had only stated that he held a critical view of the

Zairese regime. He had not mentioned any particular activity for an

opposition party. Only in the present proceedings he claimed to be an

active member of the UDPS and to have supported this party by passing

on secret information. It was not understandable that he did not

mention this reason for his alleged persecution in the first set of

proceedings. The documents presented by him did not add to his

credibility. These documents had not been further examined, in

particular as the President of the Zairese Socialist Party in Vienna,

who had inter alia stated that the applicant was a member of the UDPS,

had been arrested on the suspicion of having forged documents."

b.    The proceedings under the Aliens Act

37.   On 8 January 1994 the Vienna Police Directorate (Bundespolizei-

direktion) issued a residence ban (Aufenthaltsverbot), valid for five

years, against the applicant on the ground that he was illegally

resident in Austria since his request for asylum had been rejected at

second instance, and that he did not possess the necessary means for

his maintenance.

38.   On 27 January 1994 the Vienna Police Directorate, on the

applicant's request of 8 January 1994, rendered a declaratory decision

under S. 54 of the Aliens Act (Fremdengesetz).  Referring to the

results of the asylum 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 that

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.

39.   According to the applicant, this decision was not served on him.

However, his request for a transfer of jurisdiction (Devolutionsantrag)

was rejected by the Vienna Security Directorate (Sicherheitsdirektion)

on 8 November 1994.  It found that the decision of 27 January 1994 by

the Vienna Police Directorate had been duly deposited at the competent

post office and that it had apparently been collected by the applicant.

The applicant had not duly notified the authority that he had nominated

another person to receive service.

40.   On 19 May 1994 the Vienna Security Directorate dismissed the

applicant's appeal against the residence ban of 8 January 1994, as

being lodged out of time.

41.   On 31 May 1994 the Vienna Police Directorate ordered the

applicant's detention with a view to his expulsion (Schubhaft).  It

found that the residence ban against him had become enforceable on

27 May 1994 and that he had not complied with his obligation to leave

Austria immediately.

42.   On 4 July 1994 the applicant was arrested and taken into custody

at the Vienna Police Prison, with a view to his expulsion.

43.   On 8 July 1994 the applicant filed a request for a declaratory

decision under S. 37 of the Aliens Act that his expulsion to Zaire

would expose him to a risk of being killed or sentenced to death, and

a request for a stay in his expulsion (Abschiebungsaufschub) on this

ground.

44.   In support of his request, the applicant, apart from referring

to the documents he had already submitted in the asylum proceedings,

submitted a number of new documents.  These included inter alia:

      - two summonses to appear before the Zairese Civil Guard in

      Kinshasa on 11 January 1994 and on 17 February 1994,

      respectively, stating that he will be informed on the spot about

      the reasons for summoning him ("motif: vous sera communiqué sur

      place");

      - an arrest warrant (mandat d'amener) against the applicant from

      the Zairese Civil Guard dated 15 March 1994, on the suspicion of

      distributing subversive writings and of provoking civil

      disobedience ("Distribution tracts subversifs, Provocation à la

      désobéissance civile");

      - a search warrant from the Civil Guard dated 10 June 1994;

      - a letter, dated Kinshasa 11 July 1994, from the First Secretary

      of the UDPS and addressed to the President of the Zairese

      Socialist Party in Vienna, Mr. Ngongo.  The author states that

      he has been informed about the applicant's arrest by the

      international secretariat of the UDPS in Brussels.  He further

      states that he encloses documents, which show that the applicant

      is persecuted by the political police, and asks Mr. Ngongo to

      transmit these documents to the Austrian authorities.

45.   On 14 July 1994 the Vienna Independent Administrative Senate

(Unabhängiger Verwaltungssenat) dismissed the applicant's complaint of

11 July 1994, concerning the lawfulness of his detention.  It found

that the applicant was entitled to stay in Austria until the

termination of the Administrative Court proceedings, on the ground that

this court, on 24 February 1994, had granted his complaint in the

asylum proceedings suspensive effect.  However, such a right to

temporary residence did not prevent the authorities from issuing a

residence ban, which would become enforceable as soon as the temporary

right to residence ended.  Nor did it prevent them from taking the

applicant into detention with a view to his expulsion, which in the

present case served the purpose of securing his expulsion and was

necessary as he did not have the means for his maintenance.

Subsequently, the applicant filed further complaints relating to the

lawfulness of his detention with a view to his expulsion which were

dismissed by the Vienna Independent Administrative Senate.  The latest

of these decisions was issued on 14 November 1994.

46.   On 4 November 1994 the Zairese embassy in Brussels, at the

Austrian authorities' request, issued a certificate confirming that the

applicant would be allowed entry into Zaire (Heimreisezertifikat).

47.   On 7 November 1994 the Vienna Police Directorate rejected the

applicant's request of 8 July 1994 to stay his expulsion.  It

considered that it had already found in its decision of 27 January 1994

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

Aliens Act. As regards the documents submitted by the applicant, it

found that the letter of 23 April 1993 of the Zairese embassy in Paris

was not worded like an official document and appeared to be a forgery.

The same had to be assumed as regards the telex entitled "Transmis de

Présidence", which was allegedly transmitted to the applicant with the

said letter.  As regards the documents which had allegedly been

transmitted by Mr. Ngongo, the President of the Zairese Socialist

Party, namely the two summonses to appear before the Civil Guard, the

arrest warrant and the search warrant, their credibility was also open

to doubt.  It had to be assumed that the Zairese authorities knew that

the applicant was resident abroad.  Thus, it was inexplicable why they

should try to summon him to Kinshasa.  Moreover, the Police Directorate

considered that the documents appeared to be for the internal use of

the police and that the applicant had failed to give a satisfactory

explanation as to how he had obtained them.

48.   On 16 November 1994 the applicant was released.

49.   On 21 December 1994 the applicant lodged a complaint with the

Administrative Court, claiming that the decision of 7 November 1994 by

the Vienna Police Directorate, refusing to stay his expulsion, was

unlawful. The material submitted to the said authority sufficed to show

that he risked treatment contrary to Article 3 if returned to Zaire.

Further, the Police Directorate had found that the documents submitted

by him were not credible but had not carried out any investigations

into this matter. In particular, the Police Directorate should have

heard him and the president of the Zairese Socialist Party in Vienna,

Mr. Ngongo. The proceedings are still pending before the Administrative

Court.

B.    The evidence before the Commission

50.   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 Zairese embassy in Vienna, which both stated

      that the applicant was a subversive element and urged that the

      he be returned to Zaire;

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

      UDPS in Kinshasa addressed to the Zairese Socialist Party in

      Vienna, for the attention of its president, Mr. Ngongo, informing

      the latter that the applicant 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 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, and stating that the persons listed were

      dangerous, subversive elements;

      - two summonses to appear before the Zairese Immigration

      Authorities on 28 June 1993 and on 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).

      - two summonses to appear before the Zairese Civil Guard in

      Kinshasa on 11 January 1994 and on 17 February 1994,

      respectively, stating that he will be informed on the spot about

      the reasons for summoning him ("motif: vous sera communiqué sur

      place");

      - an arrest warrant (mandat d'amener) against the applicant from

      the Zairese Civil Guard dated 15 March 1994, on the suspicion of

      distributing subversive writings and of provoking civil

      disobedience ("Distribution tracts subversifs, Provocation à la

      désobéissance civile");

      - a search warrant from the Civil Guard dated 10 June 1994;

      - a letter, dated Kinshasa 11 July 1994, from the First Secretary

      of the UDPS and addressed to the President of the Zairese

      Socialist Party in Vienna, Mr. Ngongo.  The author states that

      he has been informed about the applicant's arrest by the

      international secretariat of the UDPS in Brussels.  He further

      states that he encloses documents, which show that the applicant

      is persecuted by the political police, and asks Mr. Ngongo to

      transmit these documents to the Austrian authorities;

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

      Alpes) stating that the applicant had helped the party by passing

      on secret information;

      - the statements of the applicant in the asylum proceedings

      according to the records of the Federal Office for Asylum of

      1 October 1992 and 28 November, 1 and 5 December 1994; and his

      written submissions in the asylum proceedings.

C.    Relevant domestic law

51.   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.

52.   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

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

that his expulsion to Zaire would expose him to a real risk of torture

or inhuman or degrading treatment in that country.

B.    Point at issue

54.   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

55.   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."

56.   The applicant submits that, if he is expelled to Zaire, he is in

danger of being arrested, tortured or even killed on account of his

activity for the UDPS, an opposition party. He claims to have used his

position as private secretary of the Zairese ambassador in Vienna to

pass on secret information to the said party. The applicant relies in

particular on the documents listed above in order to prove his

membership in the UDPS and to support his allegation that he risks

persecution by the Zairese secret service. In addition he 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.

57.   The Government submit that there are no indications militating

against the applicant's expulsion.

58.   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).

59.   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 his return to Zaire, the

Commission has first examined the submissions made by the applicant in

the course of the asylum proceedings. In this context the Commission

notes that, in a first set of proceedings which started in 1992, the

Federal Office of Asylum and the Ministry for the Interior refused the

applicant's request for asylum. However, the decision of the latter was

quashed by the Administrative Court on 19 October 1994 on

constitutional grounds. In a second set of proceedings, the Ministry

for the Interior, in April 1995, again dismissed the applicant's

request for asylum.

60.   In the first set of asylum proceedings the applicant was heard

on 24 September and 1 October 1992 by the Federal Office for Asylum.

According to the records of the latter hearing and his written

statements to the Ministry for the Interior, he submitted inter alia

that despite his work at the embassy he held a critical view of the

Zairese regime and that he was a member of Prime Minister Tshisekedi's

opposition party. In December 1991 another employee of the embassy had

given him a copy of a secret telex, which stated that he was a

subversive element. Thereupon, he refused to go on mission to Zaire and

was dismissed in January 1992. Although the ambassador reinstated him

a month later, he was not paid his salary any more, which according to

him was intended to force him to return to Zaire. However, he knew that

the embassy was almost insolvent. In June 1992 he received a further

secret telex. He stopped working at the embassy in September 1992. The

applicant also submitted that his wife had travelled to Zaire in

November 1991. When she wanted to return to Austria her passport had

been taken and she had fled to the Congo. However, he had meanwhile

obtained a new passport for her at the embassy.

61.   In the renewed asylum proceedings the applicant, upon request of

the Ministry for the Interior, was heard by the Federal Office for

Asylum on 28 November and on 1 and 5 December 1994. According to the

records of this hearings he submitted inter alia that he had not filed

a request for asylum in December 1991 as he did not know where he would

have to file it. He also wanted to obtain more information before

filing his request. In his position as private secretary of the

ambassador, he had access to confidential messages. He gave them to the

cook of the embassy, who passed them on to members of the UDPS. As

regards the question of his wife's passport he submitted that the

competent officer at the embassy was also a member of the opposition.

62.   The Commission finds that the applicant's statements contain

several inconsistencies. Before the Commission he claims to have passed

on secret information to the UDPS. This must have occured in 1990 or

1991. However, he raised this point for the first time in the renewed

1994 asylum proceedings, whereas in the first set of asylum proceedings

in 1992 he only submitted that he held a critical view of the Zairese

regime and was a member of Prime Minister Tshisekedi's opposition

party.

63.   Further, the applicant claims that he was informed in

December 1991 about a secret telefax, which warned him that he was

considered by the Zairese authorities to be a subversive element and

that he filed his request for asylum in May 1992. Still he continued

working at the embassy until September 1992. The fact that he was not

paid during that time is not decisive, as it appears to have been due

to the precarious state of the Zairese public finances. The applicant

himself knew that the embassy was almost insolvent at the relevant

time. Moreover, his wife's passport was allegedly taken away, after she

had travelled to Zaire in November 1991. Nevertheless, the applicant

was able to obtain a new passport for her at the embassy in Vienna. The

explanation he gives in this respect is not convincing.

64.   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 applicant's

asylum proceedings, and partly in the proceedings relating to his

request to stay his expulsion. The Commission further notes that the

Austrian authorities did not hear the applicant on the credibility of

the documents at issue and on the question of how he obtained them,

when dismissing his asylum request in the first set of proceedings or

when refusing his request to stay his expulsion. However, he was

questioned on this issue in the renewed asylum proceedings.

65.   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

allegedly obtained them. In particular, it is not convincing that an

officer of the Zairese embassy in Vienna gave copies of secret telexes

to the applicant, thereby exposing himself to a considerable risk. If

he had wanted to warn the applicant he could have done so orally. As

regards the letter of 23 April 1993, it appears highly unlikely that

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

the applicant 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 applicant's repatriation

or the taking of "radical and urgent measures" against him.

66.   The further documents, in particular the summonses to appear

before the Zairese Immigration Authorities on 28 June 1993 and on

26 August 1993, and to appear before the Zairese Civil Guard on

11 January and 17 February 1994, the arrest warrant of 15 March 1994

and the search warrant of 10 June 1994, appear to have been transmitted

from Zaire to the President of the Zairese Socialist Party in Vienna,

Mr. Ngongo, with the letter of 11 July 1994. However, there is no

reason why the Zairese authorities, who purportedly knew that the

applicant was resident in Austria, should have tried to summon him or

to search for him in Zaire.

67.   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

68.   The Commission concludes, unanimously, 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)