Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 30488/96

by Naser PALUSHI

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 27 February 1996

by Naser PALUSHI against Austria and registered on 18 March 1996 under

file No. 30488/96;

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 1972 is Kosovo-Albanian and a national of

Yugoslavia. He is currently residing in Vienna. Before the Commission

he is represented by Mr. H. Pochieser, a lawyer practising in Vienna.

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

applicant, may be summarised as follows.

A. Particular circumstances of the case

On 28 April 1994 the Vienna Federal Police Authority

(Bundespolizeidirektion), referring to S. 41 of the Aliens Act

(Fremdengesetz), ordered the applicant's detention with a view to

expulsion on the ground that he had stayed illegally in Austria since

20 December 1993, when his request for asylum had been refused by final

decision. Moreover, he had no valid passport and had not duly

registered his place of residence with the police.

On 17 May 1994 the applicant filed a complaint with the Vienna

Independent Administrative Panel (Unnabhängiger Verwaltungssenat)

claiming that his detention with a view to expulsion was unlawful. He

submitted, in particular, that his expulsion would be contrary to S. 37

of the Aliens Act, since, being a draft evader, he risked being

subjected to torture or inhuman or degrading treatment upon his return

to Yugoslavia.

On 25 May 1994 the Independent Administrative Panel dismissed the

applicant's complaint and declared that the continuation of his

detention was lawful. It noted that on 3 May 1994 the Vienna Federal

Police Authority had issued an expulsion order against the applicant.

It was enforceable as the authority had excluded the suspensive effect

of a possible appeal. Moreover, it appeared that the applicant had not

appealed against the expulsion order. The Independent Administrative

Panel further noted that, on 20 December 1993, the Ministry for the

Interior had refused to grant asylum to the applicant. Consequently,

he no longer had a residence permit under the Asylum Act. As to the

applicant's submission that the expulsion was inadmissible, the

Independent Administrative Panel noted that the applicant had filed a

request under S. 54 of the Aliens Act that his expulsion to Yugoslavia

be declared inadmissible. The fact that proceedings under S. 54 of the

Aliens Act were pending did not render the applicant's detention

unlawful. Further, the Independent Administrative Panel found that the

applicant's detention was necessary in order to secure the measures

under the Aliens Act, as there were reasons to assume that, in case of

his release, he would try to evade the said measures. Such reasons

existed, in particular, as the applicant had illegally entered Austria,

had illegally stayed there after his residence permit had expired and

had failed to duly register his residence.

The applicant's detention lasted until 28 May 1994. It is not

clear from the file whether he was expelled thereafter.

On 27 September 1994 the Constitutional Court

(Verfassungsgerichtshof) refused to entertain the applicant's

complaint. Subsequently, upon the applicant's request, it transferred

the case to the Administrative Court (Verwaltungsgerichtshof).

On 6 June 1995 the applicant supplemented his complaint with the

Administrative Court. He submitted, in particular, that his detention

was unlawful on the ground that his expulsion was not lawful for the

reasons set out in S. 37 of the Aliens Act. He claimed that he would

be ill-treated or even sentenced to death upon being returned to

Yugoslavia. Consequently, his expulsion was not lawful and any

detention to secure this measure was equally unlawful. Further, the

applicant submitted that the Independent Administrative Panel had not

correctly established the relevant facts.

On 28 July 1995 the Administrative Court dismissed the

applicant's complaint. It found that, in the proceedings concerning the

review of the lawfulness of detention with a view to expulsion, the

Independent Administrative Panel did not have to examine the question

whether the expulsion to a specific state was unlawful on the grounds

set out in S. 37 of the Aliens Act. This issue had to be determined

in separate proceedings under S. 54 of the Aliens Act. Only a decision

taken in the proceedings under S. 54 of the Aliens Act declaring the

expulsion to a specific state to be prohibited might render the

applicant's detention unlawful. The Administrative Court also found

that the Independent Administrative Panel had correctly established the

relevant facts. On the basis of these facts its assumption was

justified that the applicant, in case of his release, would take up

residence without registration thereby preventing his expulsion.

The decision was served on the applicant on 30 August 1995.

B. Relevant domestic law

S. 37 of the Aliens Act (Fremdengesetz) 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 (para. 1); or that his life or liberty will be at risk

on account of his race, religion, nationality, membership of a

particular group or political opinion (para. 2, which refers to

Article 33 para. 1 of the 1951 Geneva Convention relating to the Status

of Refugees).

Under S. 54 of the Aliens Act the competent authority has to

determine, at the aliens request, whether there are solid reasons to

believe that he would be at risk, within the meaning of S. 37 para. 1

or para. 2, in a particular State named by him.

Under S. 41 of the Aliens Act aliens can be arrested or detained,

if this measure is necessary to secure, inter alia, the proceedings for

issuing a residence ban or an expulsion order or to ensure the alien's

expulsion.

COMPLAINTS

The applicant complains under Article 5 para. 1 of the Convention

that his detention was unlawful on the ground that his expulsion to

Yugoslavia in itself would be unlawful as it would expose him to a risk

of ill-treatment.

Further, the applicant complains that the scope of review of the

Independent Administrative Panel was not in conformity with

Article 5 para. 4 of the Convention, as the Panel could not review the

lawfulness of his expulsion to Yugoslavia, when deciding on the

lawfulness of his detention. Thus, he claims that he did not have an

effective remedy as regards the lawfulness of his detention. In this

respect he also invokes Article 13 of the Convention.

The applicant also complains that the Independent Administrative

Panel does not fulfil the requirements of a tribunal within the meaning

of Article 6 of the Convention. He submits that due to the

organisational structure of the Independent Administrative Panels,

their members do not enjoy full independence and impartiality. The

applicant claims, in particular, that according to a report published

in an Austrian magazine, the Ministry of Interior has tried to

influence members of the Vienna Independent Administrative Panel in

proceedings concerning the review of the lawfulness of detention with

a view to expulsion.

THE LAW

The applicant raises various complaints relating to his detention

with a view to his expulsion and to the review of this detention by the

Independent Administrative Tribunal. He invokes Article 5 para. 1 and

para. 4 (Art. 5-1, 5-4) as well as Articles 6 and 13 (Art. 6, 13) of

the Convention.

Article 5 (Art. 5), in so 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.

..."

The Commission will first examine the applicant's complaint that

his detention with a view to his expulsion was unlawful on the ground

that his expulsion to Yugoslavia in itself would be unlawful.

The Commission recalls that all that is required under Article 5

(Art. 5) of the Convention is that "action is being taken with a view

to deportation" and that it is, therefore, immaterial for the purposes

of Article 5 para. 1 (f) (Art. 5-1-f), whether the underlying decision

to expel can be justified under national or Convention law (Eur. Court

HR, Chahal v. the United Kingdom judgment of 15 November 1996, Reports

1996-V, No. 22, para. 112).

The Commission finds that the applicant has not shown that his

allegation concerning the unlawfulness of his detention has any basis

in domestic law. Having regard to the material before it, there is no

doubt that the applicant was detained with a view to his deportation

within the meaning of Article 5 para. 1 (f) (Art. 5-1-f). The

Commission notes, in particular, that, a few days after the applicant

had been taken into detention, an expulsion order was issued against

him, which immediately became enforceable. Moreover, the competent

authorities found that his detention was necessary in order to secure

the measures under the Aliens Act and, in particular, to prevent him

from avoiding his expulsion by taking up illegal residence. The

Commission, therefore, finds that the applicant's detention was in

conformity with Article 5 para. 1 (f) (Art. 5-1-f) of the Convention.

The Commission will next examine the applicant's complaint that

the scope of review of the Independent Administrative Panel was not in

conformity with Article 5 para. 4 (Art. 5-4) of the Convention, as the

Panel could not review the lawfulness of his expulsion to Yugoslavia,

when deciding on the lawfulness of his detention. The Commission notes

that the applicant also invokes Article 13 (Art. 13) of the Convention.

The Commission recalls, that Article 5 para. 4 (Art. 5-4)

provides a lex specialis in relation to the more general requirements

of Article 13 (Art. 13) (cf. No. 23888/94, Dec. 18.10.95, D.R. 83, p.

48). It follows that this complaint is to be examined under Article 5

para. 4 (Art. 5-4) of the Convention.

Furthermore, the Commission recalls that the judicial review

under this Article should be wide enough to bear on those conditions

which are essential for the "lawful" detention of a person according

to Article 5 para. 1 (Art. 5-1) of the Convention. In cases of

detention with a view to deportation it follows from the requirements

of Article 5 para. 1 (Art. 5-1) that Article 5 para. 4 (Art. 5-4) does

not demand that the domestic courts should have the power to review

whether the underlying decision to expel could be justified under

national or Convention law (Chahal v. the United Kingdom judgment, loc.

cit., paras. 127-128). In view of this case-law, the applicant's

complaint that the scope of review of the Independent Administrative

Panel was insufficient in that it could not examine the lawfulness of

his expulsion, does not disclose any appearance of a violation of

Article 5 para. 4 (Art. 5-4) of the Convention.

Finally, the Commission turns to the applicant's complaint that

the Independent Administrative Panel is not an impartial and

independent tribunal. The applicant invokes Article 6 (Art. 6) of the

Convention.

The Commission will examine this complaint also under

Article 5 para. 4 (Art. 5-4) of the Convention. However, the Commission

finds that the applicant's complaint is unsubstantiated. He only refers

in general terms to the organisational structure of the Independent

Administrative Tribunals. His further reference to a newspaper article

- which, moreover, he has not submitted - purportedly alleging that the

Ministry for the Interior has tried to influence members of the Vienna

Independent Administrative Panel is also not suited to cast doubt on

the independence and impartiality of that organ.

It follows that the application is manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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PALUSHI v. AUSTRIA

PALUSHI v. AUSTRIA

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