THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 74762/01 by Madani , Riad and Yacine MAHDID and Fatiha HADDAR against Austria

The European Court of Human Rights ( Third Section), sitting on 8 December 2005 as a Chamber composed of:

Mr B.M. Zupančič , President , Mr J. Hedigan , Mr L. Caflisch , Mr C. Bîrsan , Mrs E. Steiner , Mrs A. Gyulumyan , Mr E. Myjer , judges ,

and Mr M. Villiger , Deputy Section Registrar ,

Having regard to the above application lodged on 14 September 2001 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The four applicants Madani Mahdid , Fatiha Haddar , Riad Mahdid and Yacine Mahdid are all Algerian nationals. They were born in 1959, 1965, 1992 and 1993, respectively, and now live in Canada. The first and second applicants are a couple, and the third and fourth applicants are their children. They were represented before the Court by Mr W. Rainer, a lawyer practising in Vienna. The respondent Government were represented by their agent Ambassador H. Winkler, former Head of the International Law Department at the Federal Ministry of Foreign Affairs.

A. The circumstances of the case

The facts of the case may be summarised as follows.

On 3 November 1996 the applicants arrived at Vienna International Airport on a flight from Tunis (Tunisia). They were in possession of passports, flight tickets and tourist visas for Slovenia.

On 4 November 1996 they presented themselves to the airport and border police. They requested asylum, claiming that they had fled Algeria because of political persecution and that in Tunisia they risked deportation to Algeria. They further submitted that they were no longer in possession of passports.

Noting that the applicants had no passports and had not arrived directly from the State where they feared persecution, the airport and border police refused them leave to enter Austrian territory.

The applicants were offered lodging in a special transit zone (“ Sondertransit ”) in a locked container near the airport which was equipped with beds and where food was provided. They refused and continued to stay in the main transit zone of the airport.

On 7 November 1996 the applicants made statements to officers of the Federal Refugee Office ( Bundesasylamt ).

They said that they had left Algeria in 1994 as the first applicant had been persecuted by the Islamic Salvation Front ( FIS ). Since 1994 they had been living in Tunisia with tourist visas which they renewed every three months by travelling to Libya and subsequently re-entering Tunisia. The first applicant had obtained refugee status from the UNHCR in Tunisia. They had not filed an asylum request in Tunisia as they feared that once the Tunisian authorities became aware of their presence they would be deported. They added that they had destroyed their passports upon their arrival at Vienna Airport in order to avoid deportation.

Later that day the Federal Refugee Office dismissed the applicants’ request for asylum. It noted that the applicants had come from Tunisia where they were safe from persecution.

Subsequently, at a hearing before the Independent Administrative Panel on 17 April 1997 , the applicants explained that it was in fact only after that decision that they had destroyed their passports.

Meanwhile, on 8 November 1996 the Schwechat Federal Police Directorate ( Bundespolizeidirektion ) ordered the applicants’ deportation to Tunisia, stipulating that if the deportation could not be effected, the applicants were to remain in the transit zone of the airport.

Flights from Vienna to Tunis left twice a week, on Thursdays and Sundays.

On 10 and 17 November 1996 the applicants’ deportation to Tunisia had to be postponed as they could not be found in the transit zone. Another attempt was made to deport them on 14 November 1996 , but proved to no avail as the applicants did not comply with the order to board the flight and the authorities refused to employ force.

Meanwhile the Regional Office of the UNCHR in Vienna was informed about the applicants’ situation. It gave a favourable opinion on the applicants’ deportation.

In the morning of 21 November 1996 the applicants were placed under police surveillance in order to ensure their deportation on a flight to Tunisia that evening. Their deportation was however postponed indefinitely after information was received from the Tunisian authorities that they would not accept the applicants without passports. The police surveillance was stopped at 2 p.m. that day.

Meanwhile, the applicants’ case attracted the attention of the media, and several articles about their situation appeared in Austrian newspapers.

On 2 December 1996 the Regional Office of the UNCHR in Vienna stated that in Tunisia the applicants would risk deportation to Algeria. It stated in that connection that on 20 November 1996 it had been informed by the first applicant for the first time that he was a member of the Hamas Party.

On 11 December 1996 the first applicant was again interviewed by an officer of the Schwechat Federal Police Office.

On 13 December 1996 the Austrian authorities allowed the applicants to enter Austria on humanitarian grounds.

On 21 May 1997 the Federal Ministry for the Interior ( Bundesminister für Inneres ) dismissed the applicants’ appeal against the Federal Refugee Office’s decision of 7 November 1996 . It noted that there was nothing to show that Tunisia would disregard its obligations under the Geneva Convention on the Status of Refugees and deport them to Algeria.

On 6 July 1999 the Administrative Court rejected the applicants’ complaints. It noted that the Ministry’s decision was void as it was based on the 1991 Asylum Act which, in the meantime, had been replaced by the 1997 Asylum Act. It therefore directed that the proceedings should resume at the stage of the Federal Refugee Office’s decision. However, the applicants did not pursue the proceedings any further.

In the meantime, on 24 January 1997 , the applicants lodged complaints with the Lower Austria Independent Administrative Panel ( Unabhängiger Verwaltungssenat ). They complained that their stay in the transit zone and the authorities’ attempts to deport them to Tunisia had been unlawful as they should have been allowed to enter Austria as asylum seekers who had come from a country where they feared persecution. They further complained that their stay in the transit zone was contrary to Articles 5 §§ 1 and 4 of the Convention. They submitted that they had been left to their own devices without appropriate sleeping or sanitary facilities. Furthermore, there was no statutory right to bring proceedings by which the lawfulness of their detention could be reviewed speedily by a court and their release ordered if their detention was unlawful.

On 15 July 1997 , after a hearing on 17 April 1997 , the Independent Administrative Panel (IAP) dismissed the complaint concerning the Austrian authorities’ refusal to let the applicants enter Austria and rejected the complaint concerning their stay in the transit zone. It found that the refusal to let the applicants enter Austria and the subsequent attempts to enforce their departure had been lawful, as they did not possess valid passports and had no right to enter under the relevant provisions of the Asylum Act, since they had come from Tunisia where they were safe from persecution.

The Panel further found that the stay in the transit zone had not been ordered by, and was therefore not attributable to, the Austrian authorities. The applicants, who had been free to leave Austria, had remained of their own free will. It further noted that the situation in the case before it differed from the Amuur case ( Amuur v. France , judgment of 25 June 1996, Reports of Judgments and Decisions 1996 ‑ III) in that the applicants were free to move about the transit zone and had not been placed under surveillance. They had also been in contact with the media and a humanitarian organisation, Caritas, in Vienna, which provided, inter alia , legal assistance. It found that their stay in the transit zone did not amount to a deprivation of liberty.

On 30 September 1997 the Constitutional Court ( Verfassungs - gerichtshof ) declined to deal with the applicants’ complaints and subsequently referred the case to the Administrative Court.

On 23 February 2001 the Administrative Court noted that the applicants’ complaints did not concern the authorities’ refusal to grant them leave to enter Austria or their attempts to deport them to Tunisia, but were restricted to the IAP’s rejection of their complaint about the alleged unlawful stay in the transit zone. It confirmed the IAP’s findings in this regard. This decision was served on the applicants’ counsel on 14 March 2001 .

Meanwhile, in the summer of 1997, the applicants had left Austria for Canada.

B. Relevant domestic law at the time of the events

1. Aliens Act 1992

Sect ion 32 ( 1 ) of the Aliens Act ( Fremdengesetz ) 1992 stipulates that aliens who do not satisfy relevant passport or visa obligations shall be prevented ( Zurückweisun g ) from enter ing the Austrian territory. An alien shall not be prevented from enter ing Austria when he is entitled to do so under other legislation.

Section 32(3) lays down that the decision whether or not to admit an alien into Austrian territory will be taken by the border police after questioning the alien and on the basis of plausible evidence submitted by the alien or other known facts.

Section 33 provides that the border police may order an alien who has been refused entry into Austria but is present on Austrian territory to leave immediately. If departure is not immediately possible the officer may order the alien to stay in a designated place in the border control area until he or she leaves the territory.

Section 37 forbids the expulsion of an alien to a State where there is good reason to believe that he or she will be exposed to the risk of inhuman treatment or punishment or the death penalty or will be persecuted, within the meaning of the Geneva Convention relating to the Status of Refugees.

2. Asylum Act 1991

Section 1 of the Asylum Act ( Asylgesetz ) 1991 defines a refugee as a person who has left his or her home country because of a well-founded fear of persecut ion on account of his or her race, religion, nationality or adherence to a particular social group or political opinion .

Section 2(3) states that asylum is not to be granted to a refugee who has already found a safe haven from persecution in another country.

Section 6(2) provides that an asylum seeker who has come directly from the State where he allegedly suffered persecution shall be allowed to enter Austria without any formalities.

By virtue of section 7(1), an asylum seeker who has entered Austria in accordance with section 6(2) (that is to say, who has come directly from the State where he allegedly suffered persecution) and who files his request for asylum within one week, has a temporary right of residence.

Both the Aliens Act 1992 and the Asylum Act 1991 have now been amended.

3. Protection of Personal Freedom Act

The Protection of Personal Freedom Act ( Gesetz zum Schutz der persönlichen Freiheit ) provides protection against the intentional deprivation of liberty. In particular, it provides for compensation for unlawful detention and a procedure by which the lawfulness of detention is decided by a body, the Independent Administrative Panel, within one week after the complaint is lodged. If the detention is unlawful, an order must be made for the release of the person detained.

However, according to the Constitutional Court’s settled case-law (see its judgment of 11 March 1999 ; VfSlg . [Collection of Judgments and Decisions of the Constitutional Court] 15465/1999) a mere order to stay in the main transit zone of an airport after leave to enter Austria has been refused does not amount to an arbitrary deprivation of liberty. The above mentioned Act is therefore inapplicable. On the other hand, an order requiring foreigners to stay in the special transit zone at Vienna International Airport may, in certain circumstances, constitute a deprivation of liberty.

4. General Administrative Procedure Act

By virtue of Section 67a ( 1 ) of the General Administrative Procedure Act ( Allgemeines Verwaltungsverfahrensgesetz ) Independent A d ministrative Panels have jurisdiction, inter alia , to examine complaints from persons who allege a violation of their rights as a result of the exercise of direct administrative authority and coercion ( Ausübung unmittelbarer verwaltungsbehördlicher Befehls - und Zwangsgewalt ).

A refusal by the border police to admit foreigners arriving at Vienna International Airport into Austria is deemed to be an exercise of direct administrative authority and coercion.

Section 73 of the General Administrative Procedure Act deals with the administrative authorities ’ duty to give a deci sion . It provides that, in the absence of any contrary provision in the administrative regulations, the authorities must decide applications by parties without unnecessary delay and at the latest six months after the application or appeal has been lodged.

COMPLAINTS

The applicants complained under Article 5 §§ 1 and 5 of the Convention about being forced to stay in the transit zone of Vienna International Airport. They submitted that their situation following the refusal of leave to enter amounted to an unlawful deprivation of liberty which they had been unable to challenge effectively as the Austrian authorities had refused to acknowledge it as such. Furthermore, they had had no means of obtaining compensation.

THE LAW

The applicants complained under Article 5 §§ 1 and 5 of the Convention about being forced to stay in the transit zone of Vienna International Airport. They submitted that their situation following the refusal of leave to enter amounted to an unlawful deprivation of liberty which they had been unable to challenge effectively as the Austrian authorities had refused to acknowledge it as such. Furthermore, they had had no means of obtaining compensation.

Article 5, in so far as far as relevant, reads as follows:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

...

(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

...

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”

a) Exhaustion of domestic remedies

The Government noted first that the applicants had not challenged the Austrian authorities ’ refusal to permit them to enter Austria in the Administrative Court and, therefore, had not exhausted domestic remedies.

The applicants contested this and submitted that in their complaint to the Administrative Court they had challenged the Independe nt Administrative Panel ’ s decision as a whole . Furthermore, the Austrian authorities’ refusal of leave to enter Austria was an essential part of the unlawfulness of their detention and their complaints could not, therefore, be separated from each other.

The Court re iterates that domestic remedies have not been exhausted when an appeal is not admitted because of a procedural mistake by t he appellant ( see, as a recent authority, Atik v. Germany (dec.), no. 67500/01, 13 May 2004 ; with further references ). In the present case, the Administrative Court found that the applicants’ complaint did not concern the authorities’ refusal to grant them leave to enter Austria or the subsequent attempts to deport them to Tunisia. However, the Administrative Court dealt in substance with the applicants’ complaint about their alleged unlawful stay in the transit zone which, in essence, corresponds to the complaint lodged by the applicants before the Court. The Court, therefore, doubts that the applicants can be said to have failed to exhaust domestic remedies. However, it need not resolve this issue, since the application is in any event inadmissible for the following reasons.

b) Applicability of Article 5 § 1 of the Convention

The Government denied that the applicant s’ stay in the transit zone amounted to a deprivation of their liberty within the meaning of Article 5 of the Convention. They contended that the present case differed from the Amuur case (cited above) in that the applicants in the instant case had had freedom of movement within the extensive main transit zone of the airport and – apart from a brief exception on the morning of 21 November 1996 – had not been placed under any police surveillance. Furthermore, they had been provided with social and legal assistance by Caritas staff and had expressly refused better accommodation in the special transit zone of the airport. The Austrian authorities had decided the applicants’ asylum request without delay. Moreover, during their stay in the transit zone, the applicants could have filed a complaint under the Protection of Personal Freedom Act with the Independent Administrative Panel, which was under a duty to give a decision within a week. In any event, the applicants were themselves responsible for their situation as they had first wrongly stated that they had no travel documents and had later destroyed them. The Austrian authorities’ refusal to grant them leave to enter was in accordance with sections 32 et seq. of the Aliens Act and could have been challenged before the Independent Administrative Panel. The Government referred, lastly, to section 7 of the Protection of Personal Freedom Act that enabled compensation to be sought for unlawful detention.

The applicants contested the Government’s arguments. They contended that, given the fact that they lacked travel documents and could not be expected to return to Tunisia or Algeria or go to any other country while asylum proceedings were pending, their freedom of movement was in fact restricted to the transit zone and their situation, comparable to the situation in a modern detention centre, amounted to a deprivation of liberty. While it was true that they had possessed tourist visas for Slovenia when they arrived in Vienna, they would not have helped them any further as asylum seekers. Accepting the offer of accommodation in the special transit zone would have meant a considerable deterioration in their freedom of movement and their legal position. A complaint under the Protection of Personal Freedom Act was not an effective remedy as the Austrian authorities did not regard a stay in the transit zone as a deprivation of liberty. Furthermore, at the material time, the Austrian authorities had not yet acknowledged that the holding of foreigners in the special transit zone amounted to a deprivation of liberty. Nor was the complaint about the Austrian authorities’ refusal of leave to enter Austria an effective remedy against the deprivation of their liberty, as under the relevant legislation the Independent Administrative Panel had up to six months in which to decide the complaint. In any event, the Panel’s finding that the refusal of entry was unlawful would not have given the applicants any right to enter. The applicants asserted lastly that, having regard to the Austrian authorities’ finding that there had been no deprivation of their liberty, they had no right to compensation either.

The Court reiterates that Article 5 § 1 contemplates the physical liberty of a person; its aim is to ensure that no one should be dispossessed of this liberty in an arbitrary fashion. In order to determine whether someone has been “deprived of his liberty” within the meaning of Article 5, the starting-point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question. The difference between deprivation of and restriction upon liberty is merely one of degree or intensity, and not one of nature or substance (see Amuur v. France , cited above, § 42).

In the cited Amuur case, the applicants, Somalian asylum seekers, had been held in the Paris Orly airport’s transit zone for twenty days until their requests for leave to enter as asylum seekers were dismissed. They had been placed under strict and constant police surveillance and, during a large part of their stay, had no legal or social assistance. The Court found this confinement, in view of the restrictions suffered by the applicants, equivalent in practice to a deprivation of liberty.

In the instant case, the applicants, Algerian nationals arriving from Tunisia, presented themselves to the Vienna airport and border police on 4 November 1996 . The police, noting that the applicants had not presented any passports or arrived directly from the State where they feared persecution, refused them leave to enter Austria. The applicants’ request for asylum was dismissed on 7 November 1996 . The applicants remained in the airport transit zone until 13 December 1996 , when the Austrian authorities granted them leave to enter on humanitarian grounds. During the applicants’ stay in the transit zone the authorities made several unsuccessful attempts to deport them to Tunisia.

The Court finds that this situation essentially differs from the situation in the above cited case for the following reasons.

It first notes that, unlike the authorities in the Amuur case, those in the instant case considered and dismissed the applicants’ request for asylum within three days. The applicants nevertheless decided to stay. At that time they were still in possession of their passports as well as tourist visas for Slovenia, although they subsequently destroyed these documents.

The Court further observes that, unlike the applicants in the Amuur case, after being refused leave to enter Austria and declining an offer to be lodged in a specially equipped zone, the applicants in the present case were left to their own devices. With the exception of a few hours before their planned deportation to Tunis, they were not kept under any special police surveillance. They were thus able to go about their daily lives and to correspond and make contact with third parties without interference or supervision by the Austrian authorities. The Court notes that since the very beginning of their stay in the transit zone the applicants were in contact with a humanitarian organisation which provided them with social and legal assistance. It further notes that the authorities’ attempts to deport the applicants to Tunisia twice failed as the applicants could not be located.

For these reasons, the Court cannot accept the applicants’ arguments that their situation was in practice comparable with or equivalent to the situation of persons in detention. Accordingly, it cannot be said that during their stay at the transit zone of the Vienna airport the applicants were “deprived of (their) liberty” within the meaning of Article 5 § 1 of the Convention.

The Court notes , lastly, that the Contracting States have the right under international law to control aliens ’ entry into and residence in their territory. It is true that this right must be exercised in accordance with the provisions of the Convention, namely Articles 2, 3 and 5 (see, mutatis mutandis, Amuur v. France , cited above, § 41). However, the current case falls outside the scope of Article 5 and the applicants have not relied on any other Article of the Convention. After their requests for asylum were dismissed, the applicants refused to go to another country and destroyed their passports in an attempt to force the Austria n authorities to accept them by confronting them with a fait accompli. This was their own free choice for which the Contracting State cannot in any way be held responsible and which, in itself, does not entail any obligation to assist them to enter Austrian territory (see, mutatis mutandis, Mogoş and Others v. Romania (dec.), no. 20420/02, 6 May 2004 ).

It follows that the application is manifestly ill-founded within the meaning of Article 35 § 3 and has to be rejected pursuant to Article 35 § 4.

For these reas ons, the Court unanimously

Declares the application inadmissible.

Mark Villiger Bo š tjan M. Zupančič Deputy Registrar President