Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 37992/97

by Djibril OUBDA

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 8 July 1997 by

Djibril OUBDA against Germany and registered on 2 October 1997 under

file No. 37992/97;

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 1965, is a national of Burkina Faso. When

lodging his application he was living in Essen. In the proceedings

before the Commission, he is represented by Mr. D.-W. Fortmann, a

lawyer practising in Essen.

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

summarised as follows.

On 14 October 1994 the applicant entered the territory of the

Federal Republic of Germany. He applied for asylum on 17 October 1994,

alleging persecution by the police authorities on account of his

activities in a Muslim religious community.

On 16 February 1996 the Federal Office for Refugees (Bundesamt

für die Anerkennung ausländischer Flüchtlinge) dismissed the request

for asylum and ordered the applicant to leave the German territory

within one month and ordered his deportation in case he should not

leave voluntarily. The Office, having regard to the applicant's

allegations of persecution on account of his religious activities as

Imam of a Muslim community, noted in particular his submissions that

he had left Burkina Faso legally with a regular flight and that he had

allegedly lost his passport in the course of his journey.

On 18 September 1996 the Gelsenkirchen Administrative Court

(Verwaltungsgericht) dismissed the applicant's action against the

decision of 16 February 1996. In these and the following proceedings,

the applicant was represented by counsel. The Court found in

particular that the applicant had failed to substantiate any reasons

justifying to grant him asylum. In this respect, the Court noted the

applicant's allegations of persecution for religious reasons. The

Court, having regard to information obtained by, inter alia, the

Federal Ministry for Foreign Affairs, considered that in the past one

or possibly even several mosques had been closed. However, there were

no indications of persecutions against individual Muslims. The

applicant had not plausibly shown that, contrary to this general

situation, he had suffered any persecution by the authorities on

account of his religion and his religious activities. His statements

were partly contradictory and did not appear credible.

On 26 February 1997 the Federal Office for Refugees dismissed the

applicant's request, dated 4 February 1997, to conduct further asylum

proceedings. The Office noted that the applicant, represented by

Mr. Fortmann, still referred to his alleged persecution on account of

his Muslim religion and had filed a warning letter sent by his wife.

The Office observed that, pursuant to the relevant legal provisions,

a further set of asylum proceedings was only admissible if there were

reasons to reopen the proceedings and the refugee had been prevented,

through no fault of his own, from submitting these reasons in the

first set of proceedings. Moreover, the change of circumstances had

to be presented in a conclusive manner. In the applicant's case, his

new submissions were superficial, they were no more than an account of

the general situation in his home country.

On 23 April 1997 the Administrative Court refused the applicant's

request for an interim measure against his expulsion. His

constitutional complaint (Verfassungsbeschwerde) with the Federal

Constitutional Court (Bundesverfassungsgericht) concerning this refusal

remained unsuccessful.

On 28 May 1997 the Administrative Court dismissed the applicant's

action against the decision of 26 February 1997. As regards the

applicant's submissions that, upon his return, he would face

difficulties on account of his desertion in 1987, the Court considered

that the applicant had failed to raise this matter in the course of the

first set of asylum proceedings. Moreover, he had not submitted any

other new relevant circumstances.

On 15 July 1997 the North Rhine Westphalia Administrative Court

of Appeal (Oberverwaltungsgericht) refused the applicant's request for

leave to appeal.

The applicant again lodged a constitutional complaint with the

Federal Constitutional Court. He meanwhile obtained a temporarly

permission to stay in Germany (Duldung) until 4 October 1997.

COMPLAINTS

The applicant complains about his envisaged expulsion to Burkina

Faso. He complains in particular that his submissions in the second set

of asylum proceedings were not duly considered and that the envisaged

expulsion before the termination of the proceedings before the Federal

Constitutional court renders the right to seek asylum ineffective. He

invokes 5, 6, 13 and 14 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 8 July 1997. On 17 July 1997

the Acting President of the Commission decided not to apply Rule 36 of

the Commission's Rules of Procedure. The application was registered

on 2 October 1997.

THE LAW

1. The applicant complains about the refusal of political asylum and

his envisaged expulsion to Burkina Faso.

The Commission has examined the applicant's submissions under

Article 3 (Art. 3) of the Convention which states:

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

treatment or punishment."

The Commission recalls that no right of an alien to enter or to

reside in a particular country is as such guaranteed by the Convention.

However, the expulsion by a Contracting State of a foreigner may give

rise to an issue under Article 3 (Art. 3), and hence engage the

responsibility of that State under the Convention, where substantial

grounds have been shown for believing that the person concerned faced

a real risk of being subjected to torture or to inhuman or degrading

treatment or punishment in the country to which he was returned (cf.

Eur. Court HR, Vilvarajah and Others v. the United Kingdom judgment of

30 October 1991, Series A no. 215, p. 34, para. 103).

In the present case, the Commission, assuming exhaustion of

domestic remedies within the meaning of Article 26 (Art. 26) of the

Convention, notes that the German authorities, having regard to the

submissions made by the applicant, found that he had failed to show any

reasons to fear persecution upon his return to Burkina Faso. In

particular, the Commission notes that the applicant, who was

represented by counsel in the course of the asylum proceedings, failed

to present his arguments in a complete and conclusive manner. The

applicant did not state any concrete reasons to fear persecution on

account of his religious activities.

In these circumstances, the Commission finds that the applicant's

submissions do not disclose any real risk that he would be subjected

to ill-treatment contrary to Article 3 (Art. 3) upon his deportation

to Burkina Faso.

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 submits that the refusal to consider

particular submissions in the context of the second set of asylum

proceedings and his envisaged expulsion without awaiting the decision

of the Federal Constitutional Court upon his constitutional complaint

were in breach of Articles 6 and 13 (Art. 6, 13) of the Convention.

The Commission observes that Article 6 (Art. 6) of the Convention

does not apply to asylum or expulsion proceedings (No. 8118/77, Dec.

19.3.81, D.R. 25, p. 105; No. 9990/92, Dec. 15.5.84, D.R. 39, p. 119).

As regards Article 13 (Art. 13) of the Convention, the Commission

recalls that this provision requires a remedy in domestic law where an

individual has an arguable claim to be the victim of a violation of his

rights under the Convention. An arguable claim falls to be determined

on the particular facts of each case and the nature of the legal issue

raised (cf. Eur. Court HR, Plattform "Ärzte für das Leben" v. Austria

judgment of 21 June 1988, Series A no. 139, p. 11, paras. 25, 27). In

the present case, the applicant's complaint under Article 3 (Art. 3)

must be rejected as being manifestly ill-founded within the meaning of

Article 27 para. 2 (Art. 27-2) of the Convention. The Commission,

taking into account the specific circumstances of the case, finds that

the applicant's submissions do not give rise to a prima facie issue

under Article 3 (Art. 3) of the Convention and thus cannot be

considered to be an arguable claim. Consequently, Article 13 (Art. 13)

does not apply in respect of the applicant's complaint under Article 3

(Art. 3) of the Convention.

It follows that this part of the application is also manifestly

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

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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OUBDA v. GERMANY

OUBDA v. GERMANY

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