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AS TO THE ADMISSIBILITY OF

Application No. 31182/96

by Nysret HALITI

against Germany

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 12 April 1996 by

Nysret HALITI against Germany and registered on 25 April 1996 under

file No. 31182/96;

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 1966, is a Kosovo-Albanian and a citizen

of Yugoslavia. When lodging his application he was staying in Krefeld.

In the proceedings before the Commission, he is represented by

Mr. T. Stauß, a lawyer practising in Krefeld.

The facts of the case, as submitted by the applicant, may be

summarised as follows.

On 6 May 1992 the Applicant entered the territory of the Federal

Republic of Germany. He applied for asylum on 13 May 1992, indicating

that he had left Yugoslavia in order to avoid a field exercise of the

Yugoslav reserve.

On 3 June 1992 the Federal Office for Refugees (Bundesamt für die

Anerkennung ausländischer Flüchtlinge) dismissed the applicant's

request for asylum. The Office found that, upon his return to his home

country, the applicant did not run any risk of persecution for

political reasons. His non-compliance with a draft-order for a field

exercise did not constitute a valid reason for asylum.

On 24 June 1992 the Krefeld Municipality ordered the applicant

to leave the territory of Germany within one month and ordered his

deportation, should he not leave voluntarily. The Municipality, noting

that the applicant's request for asylum had meanwhile been dismissed,

found that he had no right to stay in Germany.

On 24 July 1992 the applicant, represented by Mr. Stauß,

instituted proceedings with the Düsseldorf Administrative Court

(Verwaltungsgericht), challenging the decisions of 3 and 24 June 1992.

On 16 March 1995 the Düsseldorf Administrative Court dismissed

the applicant's action. The Court confirmed that the applicant had

failed to show any risk of political persecution upon his return to his

home country, and that it remained doubtful indeed whether he would

face any punishment at all for desertion.

On 30 May 1995 the North-Rhine Westphalia Administrative Court

of Appeal (Oberverwaltungsgericht) dismissed the applicant's request

for leave to appeal (Antrag auf Zulassung der Berufung) on the ground

that his case did not raise any issue of fundamental importance. The

Court of Appeal referred in particular to its constant case-law

according to which non-compliance by Kosovo Albanians with draft-orders

and a possible punishment for desertion were not relevant for asylum

purposes.

On 5 October 1995 the Federal Constitutional Court (Bundes-

verfassungsgericht) refused to entertain the applicant's constitutional

complaint (Verfassungsbeschwerde). The decision was served on

13 October 1995.

COMPLAINTS

The applicant complains under Articles 3, 5, 6 and 7 of the

Convention about the refusal of asylum and his expulsion to Yugoslavia.

He submits in particular that the draft-order issued against him had

been illegal and his desertion had therefore been legitimate.

Consequently, he would face an unlawful prosecution and punishment for

desertion upon his return to his home country.

THE LAW

1. The applicant complains about the refusal of his request for

asylum and his expulsion to Yugoslavia.

The Commission has examined the application under Article 3

(Art. 3) of the Convention, which reads as follows:

"No one shall be subjected to torture or to inhuman or degrading

treatment or punishment."

The Commission recalls that the Contracting States have the right

to control the entry, residence and expulsion of aliens (cf. 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 (Art. 3) of the Convention and hence engage

the responsibility of that State under the Convention, where

substantial grounds have been shown for believing that the person

concerned would face 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 expelled (Vilvarajah and Others judgment, op. cit., para.

103). Since the nature of the Contracting States' responsibility under

Article 3 (Art. 3) in cases of this kind lies in the act of exposing

an individual to the risk of ill-treatment, the existence of the risk

must be assessed primarily with reference to those facts which were

known or ought to have been known to the Contracting State at the time

of the expulsion; a mere possibility of ill-treatment is not in itself

sufficient (Vilvarajah and Others judgment, op. cit., p. 36, para. 107

and p. 37, para. 111).

The Commission finds that the general situation in Kosovo at the

relevant time was not such that an expulsion to that region would in

itself amount to a violation of the Convention or any of its Protocols

(No. 23159/94, Dec. 19.5.94, D.R. 77, p. 126).

As regards the applicant's non-compliance with the draft-order

and possible punishment for desertion, the Commission, considering that

there is nothing to show that he would have risked capital punishment,

finds that his possible imprisonment for that offence is not a penalty

so severe as to raise an issue under Article 3 (Art. 3) of the

Convention (cf. No. 12364/86, Dec. 17.10.86, D.R. 50, p. 280; No.

11017/84, Dec. 13.3.86, D.R. 46, p. 176).

The Commission therefore concludes, on the evidence before it,

that it has not been established that there are substantial grounds for

believing that the applicant would be exposed to a real risk of being

subjected to treatment contrary to Article 3 (Art. 3) of the

Convention, if expelled to his country of origin.

It follows that this part of the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2. The applicant further complains under Article 6 (Art. 6) that the

German court proceedings were unfair.

This provision, as far as relevant, reads as follows:

"1. In the determination of his civil rights or of any criminal

charge against him, everyone is entitled to a fair ... hearing

... by [a] ... tribunal ..."

The Commission recalls that the procedures 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 or of a criminal charge within the meaning of Article 6

(Art. 6) of the Convention (No. 12122/86, Dec. 16.10.86, D.R. 50, p.

268; No. 12364/86, Dec. 17.10.86, D.R. 50, p. 280).

It follows that this part of the application is incompatible

ratione materiae with the provisions of the Convention 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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HALITI v. GERMANY

HALITI v. GERMANY

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