Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 31007/96

by Fadil MUHADRI

against Austria

The European Commission of Human Rights sitting in private on

20 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

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 4 April 1996 by

Fadil MUHADRI against Austria and registered on 15 April 1996 under

file No. 31007/96;

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 1973, is a Kosovo-Albanian and a national

of Yugoslavia. He is currently residing in Baden, Lower Austria.

Before the Commission he is represented by Mr. H. Pochieser, a lawyer

practising in Vienna.

The facts, as submitted by the applicant, may be summarised as

follows.

A. Particular circumstances of the case

On 2 September 1991 the applicant came to Austria and requested

asylum on 3 September 1991. The applicant submitted that he had left

Yugoslavia when the civil war broke out, as he did not want to serve

in the Serbian army which had always oppressed the Albanian minority

living in Kosovo, to which he belonged. He explicitly stated that he

had not yet received a call-up order. On 22 January 1992 the Lower

Austrian Public Security Authority (Sicherheitsdirektion) dismissed the

applicant's asylum request. On 12 October 1993 the Federal Ministry for

the Interior (Bundesministerium für Inneres) dismissed his appeal, in

which he had submitted inter alia that an attempt to serve a call-up

order on him had been made before he left the country. On

18 January 1995 the Administrative Court (Verwaltungsgerichtshof)

quashed the decision of the Ministry for the Interior. On

11 December 1995 the Ministry for the Interior again dismissed the

applicant's appeal. It found, in particular, that his submissions as

to whether or not he had been called up to serve in the army were

vague and unsubstantiated. Even assuming that the army had intended to

conscript the applicant, there were no indications that he would suffer

persecution within the meaning of the asylum law. On 13 May 1996 the

Constitutional Court (Verfassungsgerichtshof) refused to entertain the

complaint and referred the case to the Administrative Court. It appears

from the applicant's submissions that the Administrative Court has not

granted the complaint suspensive effect and that the proceedings are

still pending.

On 22 October 1993 the applicant requested the Tulln District

Administrative Authority (Bezirkshauptmannschaft) to take a declaratory

decision under S. 54 of the Aliens Act (Fremdengesetz) to the effect

that his expulsion to Yugoslavia would be inadmissible. He submitted

that he would run the risk of inhuman treatment and imprisonment. On

11 November 1993 the Tulln District Administrative Authority dismissed

the applicant's request.

On 10 May 1994 the Lower Austrian Public Security Authority

dismissed the applicant's appeal. It referred in particular to a report

of the International Helsinki Federation for Human Rights according to

which the situation of Kosovo-Albanians had deteriorated since 1989.

Until the end of 1992 60,000 Albanians were believed to have left the

country in order to evade military service. Deserters risked one to

fifteen years' imprisonment. However, the death penalty, applicable

in times of war, had been abolished by moratorium of 4 February 1993.

Further, it appeared that proceedings were only instituted against

reserve officers, though Kosovo-Albanian officers might face a higher

risk as they were considered to have organised a resistance movement.

However, the terms of imprisonment applied were usually between one and

two years. The authority stated that a punishment for evading military

service did not constitute a persecution either under the Geneva

Convention or under Section 37 para. 2 of the Aliens Act. Moreover,

the authority, referring to the asylum proceedings, found that it was

not even established whether the applicant had received a call-up

order. In any case, having regard to the above findings, there were

no serious reasons to believe that he would be subjected to ill-

treatment upon his return. On 28 February 1995 the Constitutional Court

refused to entertain the complaint and referred it to the

Administrative Court. On 7 September 1995, the Administrative Court

dismissed the applicant's complaint.

On 23 June 1994 the Tulln District Administrative Authority

(Bezirkshauptmannschaft) issued a residence ban against the applicant,

valid for ten years. It found that he had, in May 1993, when travelling

from the Czech Republic, illegally re-entered Austria, using his

brother's passport and giving his brother's name and identity upon

being questioned by the authorities. On 10 October 1994 the Lower

Austrian Public Security Authority dismissed the applicant's appeal.

On 26 February 1996 the Constitutional Court refused to entertain the

applicant's complaint and subsequently referred the case to the

Administrative Court. Upon the applicant's request, the Administrative

Court granted the complaint suspensive effect.

On 16 April 1997 the Administrative Court dismissed the

applicant's complaint. It noted that it was uncontested that the

applicant had used his brother's passport and identity when re-

entering Austria in May 1993. Further, the Court noted that the

applicant had been found guilty of the administrative offence of aiding

and abetting unlawful immigration (Schlepperei). In these circumstances

it found that the residence ban was justified in the interests of

public safety as provided for under Article 8 para. 2 of the European

Convention of Human Rights. The Administrative Court confirmed the

finding of the Lower Austrian Public Security Authority that the

interests in the maintenance of public safety outweighed the

applicant's private interests in staying in Austria.

B. Relevant domestic law

Section 37 of the 1992 Aliens Act (Fremdengesetz 1992) forbids

the expulsion of an alien to a State where there are solid reasons to

believe that he will be exposed to the risk of inhuman treatment or

punishment or the death penalty (para. 1); or that his life or liberty

will be at risk on account of his race, religion, nationality,

membership of a particular social group or political opinion (para. 2,

which refers to Article 33 para. 1 of the Geneva Convention).

Under Section 54 the competent authority has to determine, at the

alien's request, whether there are solid reasons to believe that he

would be at risk, within the meaning of Section 37 para. 1 or para. 2,

in a particular State named by him.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 4 April 1996 and registered on

15 April 1996.

On 19 April 1996 the Commission decided not to apply Rule 36 of

its Rules of Procedure.

COMPLAINTS

The applicant complains that, if he were returned to Yugoslavia,

he risks to be arrested, imprisoned or even sentenced to death for

having evaded military service or to be ill-treated on account of his

Albanian origin. He submits that the moratorium by which the death

penalty has been suspended could be revoked at any time. He invokes

Articles 3 and 5 of the Convention as well as Article 1 of

Protocol No. 6.

THE LAW

1. The applicant complains that his expulsion to Yugoslavia would

expose him to the risk of being arrested, ill-treated or sentenced to

death. He invokes Articles 3 and 5 (Art. 3, 5) of the Convention and

Article 1 of Protocol No. 6 (P6-1).

The Commission notes that three sets of proceedings were

conducted by the Austrian authorities. In the asylum proceedings the

applicant's asylum request was dismissed by the Ministry for the

Interior. The proceedings are still pending before the Administrative

Court. However, it appears that the Administrative Court has not

granted the complaint suspensive effect. In a second set of proceedings

the applicant requested that a declaratory decision be taken under S.

54 of the Aliens Act that his expulsion to Yugoslavia would be

inadmissible. This request was finally dismissed by the Administrative

Court on 7 September 1995. In a third set of proceedings a residence

ban valid for ten years was issued against the applicant. This decision

was confirmed by the Administrative Court on 16 April 1997.

2. The Commission recalls that Article 1 of Protocol No. 6 (P6-1)

provides that the death penalty shall be abolished and that no one

shall be condemned to such penalty or executed. The question,

therefore, arises whether a contracting State's responsibility may be

engaged under this Article where an alien is to be expelled to a State

where he is seriously at risk of being sentenced to death (cf. No.

32025/96, Dec. 25.10.96, D.R. 87, p. 173 at p. 181). In the present

case, however, it is undisputed that the death penalty was suspended

in Yugoslavia by a moratorium in 1993. The mere allegation, otherwise

unsubstantiated, that the said moratorium could be revoked at any time

does not suffice to bring an expulsion measure within the ambit of

Article 1 of Protocol No. 6 (P6-1).

3. However, the applicant's complaints that, upon his return to

Yugoslavia, he risks to be arrested and imprisoned for having evaded

military service or to be ill-treated on account of his Albanian origin

may fall within the scope of 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, as a matter of well-established international law and subject

to their treaty obligations including their obligations under the

Convention to control the entry, residence and expulsion of aliens.

It also notes that the right to political asylum is not contained in

either the Convention or its Protocols. 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 (see Eur. Court HR, Ahmed v. Austria judgment of 17 December

1996, Reports 1996-VI, No. 26, paras. 38-39; Vilvarajah and Others v.

the United Kingdom judgment of 30 October 1991, Series A no. 215, p.

34, paras. 102-103).

The Commission notes the finding of the Lower Austrian Public

Security Authority in the proceedings under S. 54 of the Aliens Act

that it has not been established whether the applicant had received a

call-up order before he had left Yugoslavia in 1991. In its decision

of 10 May 1994 the Lower Austrian Public Security Authority dealt in

detail with the position of deserters and the punishment they possibly

have to expect and came to the conclusion that there was no reason to

believe that the applicant would be subjected to ill-treatment let

alone that he would be sentenced to death upon his return. Even

assuming that the applicant risks imprisonment for having evaded

military service, the Commission does not find such a penalty so severe

as to raise an issue under Article 3 (Art. 3) of the Convention (cf.

No. 11017/84, Dec. 13.3.86, D.R. 46, p. 176 at p. 181; No. 22325/93,

Dec. 8.9.93, unpublished). As concerns the applicant's allegation that

he might be ill-treated on account of his Albanian origin, the

Commission recalls that a mere possibility of ill-treatment is not in

itself sufficient to give rise to a breach of Article 3 (Art. 3) of the

Convention (Vilvarajah and Others v. the United Kingdom judgment, loc.

cit., p. 37, para. 111).

In conclusion, the Commission does not consider it established

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

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

return to Yugoslavia. The Commission finally considers that no separate

issue arises under Article 5 (Art. 5) of the Convention.

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

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MUHADRI v. AUSTRIA

MUHADRI v. AUSTRIA