Lexploria

Application No. 30078/96

by Aldin Sami Sadek SHARAF

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 3 December 1997, the following members being present:

Mrs J. LIDDY, President

MM M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

Mrs M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 23 October 1995

by Aldin Sami Sadek SHARAF against Austria and registered on

5 February 1996 under file No. 30078/96;

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 applicant, born in 1968, is a Lebanese national. His current

place of residence is unknown. Before the Commission he is represented

by Mr. H. Blum, a lawyer practising in Linz.

The facts of the case, as they have been submitted by the

applicant, may be summarised as follows.

On 29 June 1994 the applicant came to Austria via Budapest. When

he tried to illegally enter Switzerland he was arrested and questioned

by the Hohenems police. On 6 July 1994 the Dornbirn District

Administrative Authority (Bezirkshauptmannschaft) ordered the

applicant's expulsion. The applicant was taken into detention with a

view to his expulsion.

On 11 July 1994 the applicant requested asylum. He was questioned

by the Linz Federal Asylum Authority (Bundesasylamt) on 14 July 1994.

He submitted in particular that he had been the leader of a group of

twelve fighters of the "Force Libanaise" (hereinafter FL). The FL's

objective was to liberate the Lebanon from foreign groups. It was

accused of collaborating with Israel and its members risked to be

brought to trial on charges of treason. Between 1992 and his flight

in 1994 the applicant had lived in the Lebanon. In January 1994 the

first measures of persecution against the members of the FL had started

and the applicant had gone underground. In 1993 he had once been

arrested and tortured.

On 21 July 1994 the Federal Asylum Authority dismissed the

applicant's asylum request. It had regard to the general situation of

the FL in the Lebanon. As to the applicant's situation it found that

his alleged arrest in 1993 was not relevant in the asylum proceedings

as a considerable amount of time had elapsed between this arrest and

his flight. The Federal Asylum Authority found that the applicant's

submissions were partly contradictory and therefore not credible.

Moreover, the Federal Asylum Authority held that the granting of asylum

was also excluded as the applicant had travelled through Hungary, where

he had already been safe from persecution.

Also on 21 July 1994 the applicant requested the Dornbirn

District Administrative Authority that a declaratory decision be taken

under S. 54 in combination with S. 37 of the Aliens Act (Fremdengesetz)

that his expulsion to the Lebanon would be unlawful. S. 37 forbids the

expulsion of an alien to a State where there are solid reasons to

believe that he will be exposed to the risk of inhuman treatment or

punishment or the death penalty or that he will be persecuted within

the meaning of the Geneva Convention relating to the Status of

Refugees. Alternatively, the applicant requested that he be granted a

stay of expulsion (Abschiebungsaufschub). In addition to his

submissions in the asylum proceedings he claimed that he had been

arrested and tortured in January 1994.

On 27 July 1994 the applicant filed an appeal with the Federal

Ministry of the Interior (Bundesministerium für Inneres) against the

decision refusing to grant him asylum. As to the general situation of

the FL in the Lebanon, the applicant quoted examples from Amnesty

International reports for 1993 and 1994. According to these reports at

least five members of the FL had been arrested in 1993 on suspicion of

having disseminated negative propaganda. Twenty further members of the

FL charged with offences against national security had been waiting for

their trial since 1992. The leader of the FL had been arrested in

November 1993. As to his personal situation, the applicant submitted

that he had been arrested in January 1994 in order to be questioned

about the FL and its activities. On this occasion he had been tortured;

in particular his feet had been flogged and he had been beaten in the

face with a rifle butt. He had sustained injuries to his head and his

right eye and his upper jaw had been broken. Requesting a medical

examination in respect of his injuries, he claimed that he had not duly

been heard in the first instance proceedings.

On 29 July 1994 the Dornbirn District Administrative Authority,

referring to the findings of the Federal Asylum Authority, dismissed

the applicant's requests of 21 July 1994 on the ground that the

applicant would not be at risk upon being returned to the Lebanon. It

considered that the applicant's account was untrustworthy as his

submissions were inconsistent. In particular, he had first stated that

he had been ill-treated in 1993, while he had later submitted that he

had also been tortured in January 1994. However, his allegations that

the injuries to his legs and his head were caused by torture were not

credible as he had, at his first questioning by the Hohenems police,

stated that he had sustained these injuries during an air raid.

On 4 August 1994 the applicant gave Mr. Blum power of attorney

to represent him in all issues of asylum law and aliens law.

On 18 August 1994 the Vorarlberg Security Authority

(Sicherheitsdirektion) dismissed the applicant's appeal. It rejected

the applicant's request under S. 54 of the Aliens Act as being out of

time. As to the applicant's request for a stay of the expulsion, the

authority, referring also to the asylum proceedings, confirmed the

District Administrative Authority's view that the applicant's

allegations of torture were not credible as his statements in this

respect had been inconsistent. Thus, he had not shown that he was at

risk of being persecuted in the Lebanon.

On 19 August 1994 the Ministry of the Interior dismissed the

applicant's appeal in the asylum proceedings. As to the applicant's

allegations of torture, it found that there was no indication in the

file that he had been prevented from giving a comprehensive account of

all relevant events at the questioning on 14 July 1994 in which,

moreover, he had been assisted by a translator. Further, the Ministry

noted that, on 10 August 1994, the applicant had undergone a medical

examination, which had shown several scars on his body. It had not been

possible to establish whether he had suffered a fracture of his jaw.

However, there was no evidence that any injuries had been caused by

torture. On the contrary, he could well have sustained his injuries

when fighting for the FL. The Ministry also found that the applicant

was not credible, inter alia as he had first stated to have been ill-

treated in August 1993, while he only left the Lebanon in June 1994.

On 26 August 1994 the applicant was expelled to the Lebanon.

On 19 January 1995 the Administrative Court rejected the

complaint concerning the refusal to stay expulsion. Noting that the

applicant had already been expelled to the Lebanon, the Court found

that the applicant lacked a legitimate interest to take legal action.

On 19 December 1995 the Administrative Court (Verwaltungs-

gerichtshof), upon the applicant's complaint of 29 September 1994,

quashed the decision of the Ministry of the Interior refusing his

asylum request. It found that not only the applicant's submissions, but

also the facts stated by the Federal Asylum Authority were

contradictory. Moreover, the Federal Asylum Authority had failed to

indicate the source of its information concerning the situation in the

Lebanon. In these circumstances, the Ministry of the Interior was

called upon to carry out further investigations.

By letter of 22 July 1996 the applicant's representative informed

the Ministry of the Interior, in the course of the renewed asylum

proceedings, that since the applicant's expulsion he had had no

possibility to contact him and was, therefore, not in a position to

file any observations.

On 26 August 1996 the Ministry of the Interior dismissed the

applicant's appeal on the ground that the applicant had come to Austria

via Hungary, where he had been safe from persecution. The applicant did

not file a further complaint with the Constitutional Court

(Verfassungsgerichtshof) or the Administrative Court.

By letter of 23 September 1997 the applicant's representative

confirmed that he had lost contact with the applicant and that he did

not know anything about his fate following his expulsion.

COMPLAINTS

1. The applicant complains that his expulsion to the Lebanon where

he risks torture and inhuman and degrading treatment constituted a

violation of Article 3 of the Convention. He also invokes Article 5 of

the Convention.

2. The applicant complains further under Article 13 of the

Convention that the Administrative Court refused to decide on the

merits of his complaint in the proceedings concerning his request for

a stay of the expulsion.

REASONS FOR THE DECISION

The applicant raises complaints under Articles 3, 5 and 13 of the

Convention in relation to his expulsion.

The Commission notes that the applicant was expelled to the

Lebanon on 26 August 1994 following the rejection of his asylum request

by the Ministry for the Interior. The applicant's representative has,

according to his letter of 23 September 1997, not had any contact with

the applicant since.

The Commission further notes that the applicant's representative

subsequently lodged a complaint against the refusal of the applicant's

request for asylum with the Administrative Court which, on

19 December 1995, quashed the Ministry's decision for procedural

defects. However, in the renewed asylum proceedings the applicant's

representative stated that he was not in a position to file

observations as he had lost contact with the applicant since his

expulsion. Following the Ministry's decision of 26 August 1996 which

again refused the applicant's request, his representative did not lodge

further complaints with the Constitutional Court or the Administrative

Court.

Having regard to all the circumstances of the case, in particular

the long lapse of time since contact broke off between the applicant

and his representative, the Commission finds that it is no longer

justified to continue the examination of the petition within the

meaning of Article 30 para. 1 (c) of the Convention.

Moreover, the Commission finds no reasons of a general character

affecting respect for Human Rights, as defined in the Convention, which

require the further examination of the application by virtue of

Article 30 para. 1 in fine of the Convention.

Finally, the Commission observes that, in accordance with

Article 30 para. 3 of the Convention, it would be in a position to

restore the petition to its list of cases if circumstances arise which

justify such a course.

For these reasons, the Commission, unanimously,

DECIDES TO STRIKE THE APPLICATION OUT OF ITS LIST OF CASES.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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SHARAF v. AUSTRIA

SHARAF v. AUSTRIA

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