AS TO THE ADMISSIBILITY OF

Application No. 43696/98

by Tag Samaan bekhit BESHARA and 5 others

against Germany

The European Commission of Human Rights sitting in private on 30 October 1998, the following members being present:

MM S. TRECHSEL, President

J.-C. GEUS

M.P. PELLONPÄÄ

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

Mrs G.H. THUNE

MM F. MARTINEZ

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

I. BÉKÉS

D. ŠVÁBY

G. RESS

A. PERENIČ

C. BÃŽRSAN

P. LORENZEN

E. BIELIŪNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

MM R. NICOLINI

A. ARABADJIEV

Mr M. de SALVIA, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 7 July 1998 by Mr Tag Samaan Bekhit BESHARA and 5 others against Germany and registered on 2 October 1998 under file No. 43696/98;

Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The first and second applicants, Egyptian nationals, are a married couple, born in 1960 and 1958. The four other applicants are their children born in 1979, 1984, 1986 and 1991 respectively. The applicants live in Erlangen (Germany).

In the proceedings before the Commission they are represented by Mr Axel von Kranenbrock , a lawyer practising in Erlangen .

The facts of the case, as submitted by the applicants, may be summarised as follows.

In September 1991 the first applicant reached the Federal Republic of Germany. In June and November 1992 the other applicants followed him. In February and October 1992 the applicants applied for political asylum.

When interviewed on 28 June 1993 before the Federal Office for Refugees ( Bundesamt für die Anerkennung ausländischer Flüchtlinge ), the first applicant, a Coptic Orthodox Christian, stated that on 1 January 1991 he opened a jewellery shop in Alexandria where he disposed a big picture of the head of the Egyptian Coptic Church. Two weeks later, Muslims spread their carpets in front of his shop and said prayers. Four weeks later he was arrested by the security forces. During the first two days of his detention he had been beaten and threatened to have his right arm cut off because he had a cross tattooed under his wrist. He was forced to convert to Islam. He was detained for five days. On the fifth day he was given an identity card with an Islamic name. Thereafter he stayed two months at home and then again opened his shop. However, he had been permanently subjected to harassment. Finally he left Egypt. The second applicant stated that she was obliged to leave Egypt on account of her husband's problems. After his departure she had received letters threatening her and her children had problems in school. 

By a decision of 20 September 1993 the Federal Office for Refugees dismissed the applicants' request for asylum and ordered them to leave Germany voluntarily, warning them that they would otherwise be expelled. The Federal Office found that the facts submitted by the applicants concerned persecution, if any, by private groups or individuals not attributable to the State. The Federal Office pointed out that members of the Coptic Church were not subjected to direct or indirect persecution in Egypt. Insofar as the applicant had declared that he had been arrested by the security forces, ill-treated and obliged  to convert to Islam, his submissions were not credible. As he had stated himself also other shop-keepers displayed publicly the picture of the head of the Coptic Church in their shops and there was no reason to believe that he had been pursued for that reason. Furthermore, the Egyptian authorities had taken measures against illegal activities by Muslim fundamentalist groups as, for instance, by issuing the Anti-Terror Act in 1992. The Federal Office concluded that the applicants had not shown that there was a sufficiently high degree of likelihood of their persecution if they were to return to their country.

On 6 October 1993 the applicants lodged an appeal against this decision.

On 3 May 1995 the Ansbach Administrative Court ( Bayerisches Verwaltungsgericht ) granted the applicants legal aid. On 9 May 1995 the Administrative Court asked the German Foreign Ministry, Amnesty International, the German Oriental Institute as well as the Max-Planck Institute for Foreign and International Criminal Law to provide information on the situation of the Coptic Church in Egypt.

By a judgment of 3 July 1996 the Ansbach Administrative Court dismissed the appeal after having considered all the available information and evidence concerning the present situation of Coptic Orthodox Christians in Egypt in general and the applicants' personal situation in particular. The court pointed out that, according to information submitted by the German Oriental Institute, approximately four to five million Coptic Christians live in Egypt. The first applicant had failed to advance any reason why he had been singled out by the security forces among all these persons and obliged to convert to Islam. Furthermore, the first applicant's statements concerning the conditions of his detention were contradictory and appeared incredible. If the first applicant had difficulties with Muslim inhabitants in the neighbourhood of his shop, there was no indication that the Egyptian authorities were responsible for this situation. The Administrative Court concluded that the applicants had not established a real and substantial fear of persecution in Egypt.

On 6 February 1998 the Bavarian Administrative Court of Appeal ( Bayerischer Verwaltungsgerichtshof ) dismissed the applicants' request for legal aid and refused to allow their appeal.

COMPLAINTS

1. The applicants complain that, if returned to Egypt, they would face a real risk of being killed, subjected to inhuman and degrading treatment and to arbitrary detention on account of their religious beliefs. They allege a violation of Articles 2, 3, 5 and 9 of the Convention.

2. The applicants also complain that they were not granted a fair hearing in accordance with Article 6 para. 1 of the Convention. They complain in particular of the assessment of evidence by the Ansbach Administrative Court.             

THE LAW

1. The applicants complain about the refusal of political asylum and their envisaged expulsion to Egypt. They maintain that, upon return to Egypt, they would encounter serious difficulties of a religious and political character. They allege a violation of Article 2 (the  right to life), Article 3 (the prohibition of torture and inhuman or degrading treatment or punishment), Article 5 (the right to liberty and security of person) and Article 9 (the right to freedom of thought, conscience and religion) of the Convention.

The Commission recalls that Contracting States have the right, as a matter of well-established international law and subject to their obligations under international treaties including the Convention, to control the entry, residence and expulsion of aliens. Moreover, it must be noted that the right to political asylum is not contained in either the Convention or its Protocols (see Eur. Court HR, Vilvarajah and others v. the United-Kingdom judgment of 30 October 1991, Series A no. 215, p. 34, para. 102). However, expulsion by a Contracting State of an asylum seeker may give rise to an issue under Article 3, and hence engage the responsibility of the State under the Convention, where substantial grounds have been shown for believing that the person in question, if expelled, would face a real risk of being subjected to treatment contrary to Article 3 in the receiving country. In these circumstances, Article 3 implies the obligation not to expel the person in question to that country (see Eur. Court HR, Ahmed v. Austria judgment of 17 December 1996, Reports of Judgments and Decisions 1996-VI, No. 26, p. 2206, paras. 38 and 39; No. 21803/93, Dec. 8.9.93, D.R. 75, p. 264).

The Commission further recalls that the mere possibility of ill-treatment on account of the unsettled general situation in a country is in itself insufficient to give rise to a breach of Article 3 of the Convention (see the above-mentioned Vilvarajah and others v. United Kingdom judgment of 30 October 1991, Series A no. 215, p. 37, para. 111).

However, the Commission is not required to decide whether or not the facts submitted by the applicants disclose any appearance of a violation of Article 3 of the Convention and, insofar as the complaints can be regarded as raising the responsibility of the German Government, of Articles 5 and 9 of the Convention, as the applicants failed to lodge a constitutional complaint ( Verfassungsbeschwerde ) with the Federal Constitutional Court ( Bundesverfassungsgericht ). They have not, therefore, in accordance with Article 26 of the Convention, exhausted the remedies available under German law.

It follows that this part of the application must be rejected under Article 27 para. 3 of the Convention.

2. The applicants also complain that the proceedings concerning their request for asylum were not fair. They allege a violation of Article 6 para. 1 of the Convention which provides, insofar as relevant, as follows:

"In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law."

However, the Commission has constantly held that the procedure followed by  public authorities to determine whether an alien should be allowed to stay in a country or should be expelled do not involve the determination of civil rights within the meaning of Article 6 par. 1 of the Convention (cf. No. 13162/87, dec. 9.11.87, D.R. 54, p. 211).

Accordingly the Commission must reject this aspect of the application as being incompatible ratione materiae   with the provisions of the Convention, pursuant to Article 27 para. 2. 

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

        M. de SALVIA                                                   S. TRECHSEL

         Secretary                                                                   President

      to the Commission                                            of the Commission