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AS TO THE ADMISSIBILITY OF

Application No. 37206/97

by Leon TAGADRIAN

against Germany

The European Commission of Human Rights (First Chamber) sitting

in private on 23 October 1997, the following members being present:

Mrs J. LIDDY, President

MM M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

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 5 March 1997 by

Leon TAGADRIAN against Germany and registered on 1 August 1997 under

file No. 37206/97;

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 1964, is a national of Georgia. He is

currently living with his wife and two children in Tettnang. In the

proceedings before the Commission, he is represented by

Mr J. Badkowski, a lawyer practising in Frankfurt am Main.

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

summarised as follows.

On 2 June 1993 the applicant and his family entered the territory

of the Federal Republic of Germany. He and his family applied for

asylum on 4 June 1993.

On 10 December 1993 the Federal Office for Refugees (Bundesamt

für die Anerkennung ausländischer Flüchtlinge) dismissed the requests

for asylum and ordered the applicant and his family to leave the German

territory within one month and ordered their deportation in case they

should not leave voluntarily. The Office noted in particular the

applicant's submissions that they had left Georgia legally with a

regular flight on account of the chaotic and warlike situation. The

applicant had further stated that he had been ill-treated by soldiers

and also civilian persons and his family had been threatened in order

to compel him to fight as a soldier against Abkhazia and that he feared

being imprisoned or killed upon his return. The Office considered that

there was no concrete information on a warlike situation at the time

when the applicant and his family left Georgia. In any event, the

general risks as a consequence of a situation of war or civil war did

not constitute political persecution justifying political asylum.

Moreover, there was nothing to show that the applicant and his family

risked any sanctions upon their return to Georgia.

On 4 April 1995 the Sigmaringen Administrative Court

(Verwaltungsgericht) dismissed the action filed by the applicant and

his family against the refusal of asylum and their envisaged expulsion.

As regards the applicant's statements at the oral hearing, the

Administrative Court noted that he had claimed to be of Armenian

origin. In 1986 he had been employed by the Georgian Council of

Ministers as a photographer and had inter alia taken photographs at

public events such as strikes in Tbilisi. He had resigned in 1990 and

started to work as a shoe-maker. In November 1992 he had been arrested

by soldiers, had been questioned and ill-treated in order to force him

to join a legion fighting against Abkhazia. He had been released the

next morning. As from January 1993 he had been in hiding. In January

and February 1993, he had again received orders to join the armed

forces. Although there was no longer war in Georgia he feared that he

would be killed upon his return.

The Administrative Court found that the applicant had failed to

show any credible reasons in support of his request for asylum. In

particular, the applicant's alleged problems as a photographer had not

given visa to his emigration from Georgia. There were no indication

that the Georgian authorities were responsible for the applicant's

short-term detention and ill-treatment by paramilitary groups. The

Court regarded as decisive that the applicant had been able to travel

without problems to Ukraine in February 1993. It did not appear

reasonable that he could have returned to Georgia if he had feared

political persecution. He had not submitted any plausible reasons for

his subsequent decision to leave Georgia. Moreover, the applicant's

statements did not appear credible; in particular there were

contradictions between his and his wife's statements as to the events

in November 1992 and the period of the applicant's hiding.

In these and the following proceedings, the applicant was

represented by counsel.

On 26 September 1995 the Baden Württemberg Administrative Court

of Appeal (Verwaltungsgerichtshof) dismissed the request for leave to

appeal (Antrag auf Zulassung der Berufung), lodged by the applicant and

his family. The Court of Appeal found that they had failed to show

that their case raised any question of fundamental importance.

On 27 November 1996 the Federal Office for Refugees dismissed the

applicant's and his family's request, dated 8 May 1996, to conduct

further asylum proceedings. The Office noted that the applicant,

represented by Mr Badkowski, had filed a Georgian court judgment of

14 February 1995, sentencing him to five years' imprisonment. 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 earlier

and his new submissions were incoherent. He had not advanced any

plausible explanation as to why he had only referred to his alleged

conviction in Georgia at this stage. In any event, the said judgment

was false. In this respect, the Office noted that the District Court

which had allegedly rendered the judgment was not competent to adjudge

the criminal offences in question, that it was unusual that a period

of more than one year was fixed until the commencement of imprisonment

and that under the file number indicated on the said judgment the

District Court in question had rendered a judgment on 10 March 1995 in

another case relating to drug trafficking.

On 17 December 1996 the applicant and his family filed an action

with the Sigmaringen Administrative Court to challenge the decision of

27 November 1996.

On 13 February 1997 the Sigmaringen Administrative Court refused

the applicant's and his family's request for interim measures to stop

their expulsion. The main proceedings are still pending.

COMPLAINTS

The applicant complains about his envisaged expulsion to Georgia

where he fears reprisals and imprisonment on account of his former

activities as a photographer. In this respect, he refers to the

general situation in Georgia where, according to human rights reports,

journalists, active members of dissident organisations and supporters

of the government of the former president Gamsakhurdia are at risk in

Georgia. He complains in particular that an expulsion pending court

proceedings challenging the refusal to reopen asylum proceedings

renders the right to seek asylum ineffective. He does not invoke any

particular provision of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 5 March 1997. On 13 March 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 1 August 1997.

THE LAW

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

his envisaged expulsion to Georgia.

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 faces

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

treatment or punishment in the country to which he is 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, but also by his wife, found that he

had failed to show any reasons to fear political persecution upon his

return to Georgia. 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 previous occupation as a

photographer, a profession which he had no longer exercised since 1990.

Furthermore, the applicant has not explained his failure to refer to

his alleged conviction in Georgia at an earlier stage in the asylum

proceedings. Moreover, the finding of the Federal Office for Refugees

that the said document is false is based on plausible grounds.

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 Georgia.

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 of interim

measures pending the court proceedings concerning the reopening of

asylum proceedings rendered the exercise of his right to seek asylum

ineffective.

The Commission has considered this complaint under Article 13

(Art. 13) of the Convention which provides that everyone whose rights

and freedoms as set forth in this Convention are violated shall have

an effective remedy before a national authority.

This provision is a substantive right and its application does

not depend on the existence of a breach of another right or freedom as

set forth in the Convention. 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).

The Commission recalls that the applicant's complaint under

Article 3 (Art. 3) has been 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 complaint does 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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TAGADRIAN v. GERMANY

TAGADRIAN v. GERMANY

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