Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 36717/97

by Bahawal BAKHISH

against Germany

The European Commission of Human Rights sitting in private on

31 October 1997, the following members being present:

Mr S. TRECHSEL, President

Mrs G.H. THUNE

Mrs J. LIDDY

MM E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

C.L. ROZAKIS

L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

E. BIELIUNAS

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 1 April 1997 by

Bahawal BAKHISH against Germany and registered on 25 June 1997 under

file No. 36717/97;

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 is a Pakistani citizen, born in 1947 and residing

in Hamburg.

In the proceedings before the Commission he is represented by

Mr Alexander Munz, a lawyer practising in Hamburg.

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

summarised as follows.

On 5 August 1990 the applicant reached the Federal Republic of

Germany via Dubai and London and applied for political asylum.

When interviewed on 22 March 1993 before the Federal Office for

Refugees (Bundesamt für die Anerkennung ausländischer Flüchtlinge), the

applicant stated that he belonged to the Ahmadiyya Muslim community in

Pakistan. Although he had encountered no particular problems with the

Pakistani authorities, he had left his country because, on account of

his religion, his clients had stopped buying the goods manufactured in

his factory.

By a decision of 22 November 1993 the Federal Office for Refugees

refused the applicant's request for asylum and informed him that he

would be expelled unless he left Germany within a month following this

decision. The Federal Office found that members of the Ahmadiyya

community were not subjected to group persecution in Pakistan and that

the applicant had not been persecuted when he had left his country.

The Federal Office concluded that the applicant had not demonstrated

that there was a sufficiently high degree of likelihood of his

persecution if he were to return to his country.

On 7 December 1993 the applicant lodged an appeal against this

decision.

At the hearing of 17 December 1996 before the Hamburg

Administrative Court (Verwaltungsgericht) the applicant stated that it

would be unsafe for him to return to Pakistan. As a member of the

Ahmadiyya Muslim community he had been threatened with death by

orthodox Muslims. According to him, the Government of Pakistan

tolerated, if not approved, the persecution of Ahmadi Muslims.

By a judgment of the same date the Hamburg Administrative Court

dismissed the appeal after having carefully considered all the

available information and evidence concerning the present situation of

Ahmadis in Pakistan in general and the applicant's personal situation

in particular.

The court pointed out that the Ahmadis regarded themselves as

Muslims and observed many Islamic practices. Their movement was founded

in 1889 by Mirza Ghulam Ahmed who was considered by the members of the

community as the promised Messiah and whose advent had been predicted

by the Holy Prophet of Islam. Since the Ahmadiyya community, consisting

in Pakistan of about four million members, denied the finality of the

Prophet Mohammed, it aroused opposition on the part of orthodox

Muslims.

In 1974 a constitutional amendment declared the Ahmadis a

non-Muslim minority. In 1984, Ordinance XX added Sections 298 B

and 298 C to the Pakistan Penal Code, expressly referring to the

Ahmadis and forbidding them to profess to be Muslims and to use Muslim

practices in their worship or in the propagation of their faith, any

offence being punishable with up to three years' imprisonment and a

fine. In 1986, the Criminal Law Amendment Act inserted the blasphemy

law in Section 295 C of the Penal Code. Under this amendment, any

person guilty of direct or indirect blasphemy against the name of the

prophet Mohammed was liable to life imprisonment, or even to the death

penalty, and to a fine (blasphemy law).

The court noted that Ahmadis were reported to be prosecuted under

these provisions namely for saying daily prayers, writing the kalima

(Article of Faith, God is One and Mohammed is His Messenger) on their

house, shop, and place of worship, calling to prayer (Azan), displaying

verses of the Koran on rings, badges, receipts and calendars, preaching

Muslim epithets and verses of the Koran and using the Islamic terms of

greeting "assalam-o-aleikum" with orthodox Muslims.

The Administrative Court admitted that as a member of the

Ahmadiyya community the applicant was individually affected by the

above provisions. However, the court considered that the applicant did

not incur the risk to be in conflict with these provisions and to be

arrested or sentenced to imprisonment on account of his religion.

According to the court, the provisions of the Pakistan Criminal Code

did not make the religious belief of Ahmadi Muslims as such a

punishable offence. Cases of prosecution against the Ahmadis arose

mainly from the public exercise of religious practices. The court

considered that the religious restrictions imposed on the applicant in

Pakistan were compatible with the human dignity and did not amount to

persecution relevant to the right of asylum for the purposes of Article

16 of the Basic Law (Grundgesetz).

The Administrative Court further observed that the applicant had

not left his country because he was subjected to persecution by other

private persons engaging the responsibility of the Government of

Pakistan. Single anti-Ahmadi events occurred solely in rural areas of

the Province of Punjab and concerned mainly prominent members of the

Ahmadiyya movement.

The Administrative Court finally considered that the applicant's

declarations made at the hearing of 17 December 1996 were in contrast

with his first statements before the Federal Office and did not appear

credible. Accordingly, the court did not believe that the applicant had

been threatened by orthodox Muslims before leaving his country.

The Administrative Court concluded that the Ahmadis were not a

persecuted group and that the applicant had not established a real and

substantial fear of persecution in Pakistan.

On 30 January 1997 the applicant lodged a constitutional appeal

against this judgment.

On 3 March 1997 a panel of three judges of the Federal

Constitutional Court (Bundesverfassungsgericht) declined to accept the

constitutional appeal for a decision.

COMPLAINTS

1. The applicant complains that he and the members of his family

would be subjected to treatment in breach of Article 3 of the

Convention on their return to Pakistan. He contends that, while in

Pakistan, he risked any day to be arrested or even sentenced to death

by reason of his religious belief or to be a victim of violence and

harassment, namely by the Khatame Nabuwwat organisation dedicated

specifically to the persecution of Ahmadi Muslims in Pakistan.

According to the applicant, the Government of Pakistan encourages the

activities of this organisation by allowing them to murder Ahmadis with

impunity and accepting charges brought by this organisation against

Ahmadi Muslims under the provisions of the Pakistan Penal Code

currently in force. He compares this situation with that of the Jewish

people during the Nazi regime.

2. The applicant also complains that under the relevant provisions

of the Pakistan Penal Code he and the members of his family, if

returned to Pakistan, would be exposed to arbitrary arrest and

detention, contrary to Article 5 of the Convention.

The applicant submits furthermore that the kinds of acts that

would fall within an offence under the provisions of the Pakistan Penal

Code were not indicated with sufficient clarity and infringe Article

7 of the Convention. The applicant refers in particular to Section 295

C of the Pakistan Penal Code, according to which any person who defiles

indirectly the name of the "Holy Prophet (peace be upon him)", shall

be punished with death or life imprisonment. The applicant argues that

this offence is so far-reaching and imprecise that it might be applied

almost without limit.

The applicant next complains that he and the members of his

family, if returned to Pakistan, would be exposed to arbitrary action

by the Pakistani authorities. In this connection he alleges a breach

of the right to respect for their private life and their right to

freedom of religion within the meaning of Articles 8 and 9 of the

Convention.

The applicant finally invokes Article 14 of the Convention which

guarantees the enjoyment of the rights and freedoms protected by the

Convention without discrimination on account of the national origin.

THE LAW

1. The applicant complains that, if returned to Pakistan, he will

be prosecuted and possibly executed for his religious beliefs. He

alleges that he had been threatened with death before leaving his

country on account of his religious beliefs. He contends that his

deportation to Pakistan would constitute a violation of 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 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

(Art. 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 (Art. 3) in the

receiving country. In these circumstances, Article 3 (Art. 3) implies

the obligation not to expel the person in question to that country (see

Eur. Court HR, Soering v. the United Kingdom judgment of 7 July 1989,

Series A no. 161, p. 35, paras. 90-91; Cruz Varas and others v. Sweden

judgment of 20 March 1991, Series A no. 201, p. 28, paras. 69-70; the

above-mentioned Vilvarajah and others judgment, p. 34, para. 103 and

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

1996-V, No. 22, paras. 73-74).

The Commission further recalls that a treatment has to reach a

certain level of severity before it can be considered to be contrary

to Article 3 (Art. 3) of the Convention (see the above-mentioned Cruz

Varas and others v. Sweden judgment, p. 31, para. 83) and the mere

possibility of ill-treatment in a country is in itself insufficient to

give rise to a breach of Article 3 (Art. 3) of the Convention (see Eur.

Court HR, the above-mentioned Vilvarajah and others judgment of 30

October 1991, Series A no 215, p. 37, para. 111).

The Commission has examined the circumstances of the present case

as they have been submitted by the applicant. The Commission notes that

the Hamburg Administrative Court considered the applicant's allegations

concerning a risk of treatment contrary to Article 3 (Art. 3) of the

Convention as unsubstantiated and in part as being contradictory and

not credible. The Commission further notes that the applicant

criticises the findings of the Hamburg Administrative Court in respect

of the general situation of the Ahmadiyya community in Pakistan

without, however, providing any substantiation of his fears of facing

a real risk of ill-treatment upon his return to his country.

The Commission thus concludes, on the evidence before it, that

the situation of which the applicant complains is not such as to raise

an issue under Article 3 (Art. 3) of the Convention.

This part of the application is, therefore, manifestly ill-

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

Convention.

2. The applicant also complains under Articles 5, 7, 8 and 9

(Art. 5, 7, 8, 9) of the Convention, that he and the members of his

family, if expelled to Pakistan, risk to be prosecuted under Sections

298 B, 298 C and 295 C of the Pakistan Penal Code and to be deprived

of the right to liberty and security of person, of their right to

respect to their private and family life and of their right to freedom

of religion. Finally, the applicant alleges a discriminatory difference

in treatment in relation to the rights guaranteed by the Convention on

the grounds of his nationality, in breach of Article 14 (Art. 14) of

the Convention.

However, insofar as the complaints can be regarded as raising the

responsibility of the German Government, the Commission finds that they

are unsubstantiated and do not disclose any appearance of a direct

involvement of the German Government in a violation of the rights and

freedoms set out in the Convention and in particular in the above

Articles.

It follows that this part of the application is also 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. de SALVIA S. TRECHSEL

Secretary President

to the Commission of the Commission

Menu

BAKHISH v. GERMANY

BAKHISH v. GERMANY

LEXI