Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 29103/95

by T.B. and I.G.-A.

against Denmark

The European Commission of Human Rights sitting in private on

30 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 12 August 1995 by

T.B. and I.G.-A. against Denmark and registered on 8 November 1995

under file No. 29103/95;

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 applicants, mother and daughter, are Armenian citizens, born

in 1949 and 1971, respectively. They reside at present in Denmark where

they have asked for asylum. Before the Commission the applicants are

represented by Mr Helge Nørrung, a lawyer practising in Frederiksberg,

Denmark.

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

summarised as follows.

The applicants came to Denmark on 3 November 1993. They possessed

valid passports and a visa for Denmark valid until 3 February 1994,

issued by the Danish Embassy in Moscow. Once in Denmark they moved in

with a Danish citizen, K.O., whom the first applicant had corresponded

with since 1992. In order to secure the applicants' visa for Denmark

K.O. had issued a declaration by which he guaranteed financial support

for the applicants. However, he withdrew the declaration on

7 January 1994.

On 9 January 1994 the applicants applied for asylum. The first

applicant stated in support of her application that she had been

critical of the regime in Armenia since her childhood. For this reason

her father, who was a former minister for water resources and colonel

in the KGB, placed her in a psychiatric hospital for six months in

1969. Subsequently, she became a journalist and commenced writing

critical articles about the leaders of the country. Since then she was

allegedly harassed and persecuted by the authorities who assaulted her

and the second applicant, searched their common apartment and even

attempted to kill them.

The second applicant is an artist. She studied at the Jeplemezjan

Art College until 1990 when she was admitted to the Yerevan State

Institute of Art. She left Armenia together with her mother as she

suffered from the harassment against her mother and was likewise

assaulted because of her mother's criticism against the regime and also

due to her preference for the Russian language. While in Denmark the

second applicant married another Armenian asylum seeker. A daughter was

born out of this marriage in 1995. Whereas the second applicant and her

daughter are still in Denmark it appears that her husband has been

deported but managed to apply for asylum in the Netherlands during a

transit at Schiphol Airport. Apparently, he is still in the

Netherlands.

The applicants' applications were rejected by the Directorate for

Aliens (Direktoratet for Udlændinge) on 3 June 1994 as their fears of

harassment and persecution were found to be unsubstantiated. The

applicants' appeals were rejected by the Aliens Appeals Board

(Flygtningenævnet) on 24 May 1995. As regards the first applicant the

Board stated, inter alia, as follows:

(Translation)

"A majority of the Board finds that considerable doubts

exist as to whether the applicant has been subjected to the

harassment as explained. The Board finds it of importance

that according to her own statement, the applicant has

primarily been subjected to harassment from one particular

person from the KGB. The applicant has explained in further

details about her critical journalistic engagements after

1990, including criticism vis-à-vis Yerevan's mayor who,

according to the applicant, was shot approximately four

months ago. The applicant who speaks Russian, and who has

only published articles in that language, has worked as a

free-lance journalist for several different newspapers

prior to her departure. The applicant has furthermore

explained that she has reported several violent attacks

from the KGB person in question to the Armenian authorities

which refused to take any further action or delayed the

investigation of the episodes, but that she did not report

the shooting episodes, as explained, as she considered this

to be fruitless.

Although the Board's majority finds that the applicant has

remained faithful to her story on all important points to

which she refers as reasons for the request for asylum, it

does not find her story convincing. It is the majority's

opinion that the applicant's story is to a considerable

extent influenced by her subjective experiences of the more

general state of affairs in Armenia.

In this respect the majority attaches importance to the

fact that, according to the information available to the

Board, it was possible to voice critical opinions in the

written media during the period before the applicant's

departure in the autumn of 1993, and that the newspapers

which published the applicant's articles were legal. The

majority furthermore finds that the applicant did not

experience direct conflicts with the Armenian authorities

although she accused the mayor of corruption, and left with

a valid passport issued on 1 October 1993. The majority is

unable to accept that the passport was obtained by the

payment of several million roubles in bribes. Finally, in

the evaluation of the applicant's story some importance is

attached to the fact that she arrived in November 1993 but

did not apply for asylum until January 1994.

Having regard to this the Board does not find that the

applicant was persecuted when she left Armenia in a way

which could justify the granting of a residence permit

pursuant to section 7 of the Aliens Act (Udlændingeloven)

or that the applicant upon return to Armenia risks such

persecution."

The second applicant's application was rejected with reference

to the decision taken in the first applicant's case and since there

were no elements which could substantiate that she herself would run

any risk of persecution.

The first applicant subsequently lodged an appeal with the

Parliamentary Ombudsman. By decision of 2 August 1995 the Ombudsman

rejected the appeal as he found no reason to criticise the decisions

taken.

On 12 September 1996 the first applicant requested the Aliens

Appeals Board to reopen the case. On 16 September 1997 the Board

refused to do so as the applicant had not submitted any relevant new

information.

COMPLAINTS

The applicants complain of the fact that the Danish authorities

have refused to accept their requests for asylum. They maintain that

they will be persecuted by the Armenian authorities if returned to that

country and invoke Articles 3, 5, 8, 9, 10 and 13 of the Convention and

Article 2 para. 2 of Protocol No. 4 to the Convention.

THE LAW

The applicants complain that their applications for asylum have

been rejected and that they face deportation to Armenia where allegedly

they will be subjected to persecution and ill-treatment.

The Commission has first examined the applicants' complaint 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 Contracting States have the right to

control the entry, residence and expulsion of aliens. The right to

asylum is not protected in either the Convention or its Protocols (cf.

for example 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 or she is to be expelled (ibid., p. 34, para. 103). A mere

possibility of ill-treatment, however, is not in itself sufficient to

give rise to a breach of Article 3 (Art. 3) (ibid., p. 37, para. 111).

In the present case the Commission recalls that the applicants

came to Denmark in order to visit a man, K.O., with whom the first

applicant had corresponded for some time and who had made the necessary

financial and visa arrangements in order to allow the applicants to

enter the country. Their applications for asylum were not submitted

until after K.O. had withdrawn his support. Furthermore, although the

first applicant was critical towards the political establishment in

Armenia the Commission has not found it established that this prevented

her from voicing her opinion or otherwise work as a free-lance

journalist.

In these circumstances, the Commission shares the Danish

authorities' doubts as to whether the applicants would, on account of

their situation as described by them, face a real risk of treatment

contrary to Article 3 (Art. 3), if returned to Armenia. Thus, the

Commission considers, on the evidence before it concerning the

applicants' background and the current situation in Armenia, that it

has not been established that there are substantial grounds for

believing that they would be exposed to a real risk of being subjected

to treatment contrary to Article 3 (Art. 3) of the Convention if

expelled to that country.

As regards the other Articles invoked by the applicants the

Commission has examined their complaints as submitted by them. It

finds, however, that the facts of the case do not disclose any

appearance of a violation of these Articles.

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. de SALVIA S. TRECHSEL

Secretary President

to the Commission of the Commission

Menu

T.B. AND I.G.-A. v. DENMARK

T.B. AND I.G.-A. v. DENMARK

LEXI