Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 35713/97

by A.Y.

against Austria

The European Commission of Human Rights sitting in private on

18 September 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

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

Mrs. M. HION

MM. R. NICOLINI

A. ARABADJIEV

Mr. H.C. KRÜGER, 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 21 April 1997 by

A.Y. against Austria and registered on 22 April 1997 under file

No. 35713/97;

Having regard to :

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

2 June 1997 and the observations in reply submitted by the

applicant on 26 June 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, born in 1964, is a Turkish national. At the time

of lodging his application he was detained at the Linz Police Prison.

In the proceedings before the Commission, he is represented by

Mr. W. Fromherz, a lawyer practising in Linz.

A. Particular circumstances of the case

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

summarised as follows.

On 8 December 1996 the applicant was arrested in the vicinity of

the border between Hungary and Austria. He carried a passport giving

the name of I.E.

On 9 December the applicant was questioned by the Neusiedl

District Administrative Authority (Bezirkshauptmannschaft). He stated

that he had left Turkey seven months earlier, had first gone to Rumania

and then via the Czech Republic to Germany. From Germany he had

travelled to Austria, had stayed some time in Vienna and at the time

of his arrest he had tried to cross the Hungarian border in order to

request asylum in Hungary. The District Administrative Authority

ordered the applicant's detention with a view to his expulsion as he

was suspected of having illegally entered Austria. Furthermore, the

Authority issued a deportation order against the applicant on the

ground that he was illegally staying in Austria.

On 11 December 1996 while in detention with a view to his

expulsion the applicant applied for asylum. On 13 December 1996 he was

questioned by the Federal Asylum Office (Bundesasylamt).

The applicant admitted that his submissions before the District

Administrative Authority had not been correct. He submitted that

between 1981 and 1984 he had been imprisoned for political reasons.

In 1992 he had taken up work at the Istanbul Post Office. In May 1993

he had become a local Labour Union representative and in this function

had established contacts with left wing organisations. In 1995 he had

appeared in the Turkish television in a programme concerning

disappeared persons. Subsequently he had been subject to police

surveillance. On 10 April 1996 a person, who later turned out to be

police informant, tricked him into a meeting in the Asian part of

Istanbul. There he had been arrested by the police and brought to the

anti-terror brigade where he had been subject to interrogations and

torture for ten days. He had been questioned, inter alia, on an

assault on a Labour Union Office. Since he had not made a confession

he had been released. On 27 April 1996 the police informant had been

found shot. The applicant then had left Istanbul as had been informed

that the police was waiting for him at his apartment. On 5 May 1996

he had returned and had again been arrested as the police had caught

a letter from S.A., the chairman of DHKP-C (Revolutionary People's

Liberation Party Front), asking the applicant to procure weapons. On

9 May 1996 he had been questioned by a court on this event and had been

released. On 12 July 1996 shop owners in Istanbul were called upon to

keep their shops closed. Since one coffee-shop had not complied with

this call, the applicant had set fire to it with a bomb. On this

occasion he had been recognised by witnesses. He had left Istanbul,

procured a forged identity card and left Turkey. He had travelled to

Bulgaria, Rumania, Hungary and on 8 December 1996 he had entered

Austria.

The applicant did not appeal against the deportation order and

he did not file a request for an order under S. 54 of the Aliens Act

prohibiting expulsion to Turkey.

On 14 January 1997 the Federal Asylum Office dismissed his

request for asylum. It stated that the applicant, according to his own

submissions, had contacts with the DHKP-C which was a terrorist

organisation frequently using violence. It was doubtful whether the

applicant had actually been tortured while being in police custody.

Moreover any ill-treatment suffered could not be considered as

persecution because it was not based on discriminatory grounds, like

race or belief. The acts of which the applicant had been suspected

must be considered as serious crimes which were also investigated in

western democracies. Such investigation measures therefore did not

amount to persecution based on political grounds.

On 11 February 1997 the applicant appealed.

On 18 March 1997 the Minister for the Interior dismissed his

appeal. The Minister found that refugee status could not be conferred

on the applicant pursuant to Article 1 F (b) of the Refugee Convention.

According to this provision the Refugee Convention does not apply to

persons who before being admitted to the country of asylum had

committed serious non political offences. The Minister noted that the

applicant, according to his own submissions, had, on 12 July 1996, set

fire to a coffee shop with a bomb, i.e. committed arson. Under S. 169

of the Austrian Penal Code the offence of arson carried the penalty of

imprisonment of up to ten years and therefore had to be considered a

serious offence. In any event the applicant had stayed in Bulgaria,

Rumania and Hungary, or in Germany, if one would believe in the

statements made at his first questioning before the Asylum Office,

before arriving in Austria, where he could have found protection.

On 27 March 1997 the applicant filed a complaint with the

Administrative Court (Verwaltungsgerichtshof). He also requested that

suspensive effect be granted to his complaint.

On 10 April 1997 the Administrative Court granted suspensive

effect to the applicant's complaint and on 23 April 1997 the applicant

was released from detention with a view to his expulsion.

B. Relevant domestic law

Asylum Act (Asylgesetz 1991)

S. 1 of the 1991 Asylum Act states that a refugee is a person,

who left his or her home country on account of a well-founded fear of

being persecuted on account of his or her race, religion, nationality,

membership of a particular social group or political opinion.

S. 2 para. 3 excludes the granting of asylum to an alien whose

asylum request has been dismissed in Austria or in any other country

adhering to the Geneva Convention relating to the Status of Refugees

(paragraph 3). This provision is not applicable to an alien who,

following the final refusal of his asylum request, has returned to his

or her country of origin and relies on facts which have occurred after

the return (paragraph 4).

Aliens Act (Fremdengesetz 1992)

S. 18 para. 1 of the Aliens Act provides that a residence ban is

to be issued against an alien if there are reasonable grounds for

believing that his stay will disturb public order or security or that

it will be contrary to public interest as provided for in Article 8

para. 2 of the European Convention on Human Rights. Paragraph 2

illustrates cases in which "reasonable grounds" within the meaning of

para. 1 are given, e.g. if an alien has, by final decision of an

Austrian court, been sentenced to more than three months' imprisonment,

or if he is unable to show that he disposes of the necessary means for

his maintenance.

S. 37 deals with cases where it is prohibited to expel an alien.

Paragraph 1 states that an alien may not be expelled to a specific

State if there are firm reasons to believe that he would be in danger

of being subjected to inhuman treatment or punishment or to the death

penalty in that State.

S. 37 para. 2 refers to Article 33 (1) of the Refugee Convention,

and provides that an alien may not be expelled to a State if there are

firm reasons to believe that in that State his life or liberty would

be endangered on account of his race, religion, nationality, membership

of a particular social group or political opinion.

According to S. 37 para. 6 an alien may not be expelled as long

as this would be contrary to an interim measure taken by the European

Commission of Human Rights or the European Court of Human Rights.

S. 54 para. 1 states that the Authority, at the alien's request,

has to render a declaratory decision on whether or not there are firm

reasons to believe that the alien, in a State indicated by him, is

endangered within the meaning of S. 37 para. 1 or 2.

S. 54 para. 2 provides that such a request may only be made

during proceedings concerning the issuing of an expulsion order or of

a residence ban and that the alien has to be informed in time of the

possibility to make the request.

S. 54 para. 4 states that an expulsion may not be carried out as

long as the decision relating to the request under S. 54 has not become

final.

COMPLAINTS

1. The applicant complains under Article 3 of the Convention that

his expulsion to Turkey would expose him to a real risk of being

subjected to inhuman treatment or torture.

2. In his observations of 26 June 1997 the applicant also complains

under Article 13 of the Convention that he did not have an effective

remedy against his expulsion. All remedies referred to by the

Government, namely proceedings under S. 54 of the Aliens Act, a request

for staying an expulsion under S. 36 of the Aliens Act, a complaint to

the Independent Administrative Panel concerning the lawfulness of his

detention with a view to expulsion and complaints to the Administrative

Court and the Constitutional Court, could not be considered remedies

sufficiently effective for the purpose of Article 13 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 21 April 1997 and registered

on 22 April 1997.

On 22 April 1997 the President of the Commission decided to apply

Rule 36 of the Commission's Rules of Procedure and to communicate the

application to the respondent Government.

The Government's written observations were submitted on

2 June 1997, after an extension of the time-limit fixed for that

purpose. The applicant replied on 26 June 1997.

On 29 May 1997 and on 11 July 1997 the Commission decided to

prolong the application of Rule 36 of its Rules of Procedure.

THE LAW

The applicant complains under Article 3 (Art. 3) of the

Convention that his expulsion to Turkey would expose him to a real risk

of being subjected to inhuman treatment or torture.

Article 3 (Art. 3) of the Convention reads as follows:

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

treatment or punishment."

The Government submit that the applicant failed to exhaust

domestic remedies in accordance with Article 26 (Art. 26) of the

Convention. They submit in particular that the applicant had not

appealed against the deportation order, that he had not filed a request

for an order under S. 54 of the Aliens Act prohibiting his deportation

to Turkey, that he had not requested, on the same grounds, a stay of

the enforcement of the deportation order and that he had not filed a

complaint with the Constitutional Court against the Minister's decision

not to grant him the status of refugee. In any event, the

Administrative Court has granted suspensive effect to the applicant's

complaint on 10 April 1997 and there is no risk that the applicant

would be expelled to Turkey before the Administrative Court would

decide on his complaint.

This is contested by the applicant. In his view he could not be

expected to make use of the remedies mentioned by the Government as

these remedies are not effective. He could not be required to file an

appeal against the deportation order because this order was correct

since he had entered Austria unlawfully. Also a request for an order

under S. 54 of the Aliens Act could not be considered an effective

remedy. He could not have asked for such an order since it requires

that a deportation order has not yet become final. However, for the

reasons mentioned above he did not have any reason to file an appeal

against the deportation order. Moreover he had not been informed

sufficiently about the possibility to file such a request. Also a

request for a stay of the enforcement of the deportation order did not

constitute an effective remedy as only a favourable decision would make

the enforcement impossible. He could also not be expected to file a

complaint with the Constitutional Court since the Austrian Constitution

does not guarantee a right to asylum.

As regards the asylum proceedings the applicant acknowledges that

meanwhile the Administrative Court has granted suspensive effect. This

measure, however, could not be considered as an adequate protection

against deportation to Turkey because the applicant had no right to

reside in Austria.

The Commission recalls that the obligation to exhaust domestic

remedies requires the use of remedies which are likely to be effective,

sufficient and accessible (cf. No. 23413/94, Dec. 28.11.95, D.R. 83,

p. 31). Further, the Commission recalls its constant case-law according

to which a remedy which does not suspend execution of a decision to

expel an alien to a specified country where he or she claims to risk

inhuman treatment, is not effective for the purposes of Article 26

(Art. 26) of the Convention (cf. 17550/90 and 17825/91, Dec. 4.6.91,

D.R. 70 p. 298, 315 with further references).

The Commission notes that the Administrative Court on

10 April 1997 had granted the applicant's complaint against the refusal

of his asylum request of 22 March 1996 suspensive effect.

The Commission recalls that, in recent decisions also concerning

an asylum seeker's imminent expulsion to Turkey, it has found that a

complaint against a negative asylum decision to the Administrative

Court, if granted suspensive effect, provides an effective remedy

(cf. No. 33052/96, Gündogdu v. Austria, Dec. 6.3.97, unpublished;

No. 34371/97, M.U. v. Austria, Dec. 17.4.97, unpublished). The

reasons, summarised briefly, were that the Administrative Court has to

examine, basically, the same elements as the Commission does under

Article 3 (Art. 3), namely whether the applicant has a well-founded

fear of persecution or of being subjected to the death penalty upon

return and that the Administrative Court may quash the negative asylum

decision if it suffers from procedural defects or from errors of law.

The Commission therefore finds that the proceedings currently

pending before the Administrative Court provide an effective remedy as

regards the applicant's complaint that his expulsion to Turkey would

expose him to a real risk of being subjected to inhuman treatment or

torture. It may be added that, like in the above-mentioned cases,

there are no indications that the police authorities would proceed to

the applicant's expulsion while the proceedings before the

Administrative Court are still pending. In this context, the Commission

notes in particular that the applicant has meanwhile been released.

Having regard to the above findings, the Commission is not

required to decide whether, in the particular circumstances of the

case, the proceedings under S. 54 of the Aliens Act also provide an

effective remedy.

In conclusion, the Commission finds that, concerning his above

complaint, the applicant has failed to exhaust domestic remedies as

required by Article 26 (Art. 26) of the Convention.

It follows that this part of the application must be rejected in

accordance with Article 27 para. 3 (Art. 27-3) of the Convention.

2. In his observations of 26 June 1997 the applicant also complains

under Article 13 (Art. 13) of the Convention that he did not have an

effective remedy against his expulsion. All the remedies referred to

by the Government above could not be considered remedies sufficiently

effective for the purpose of Article 13 of the Convention.

Article 13 (Art. 13) reads as follows:

"Everyone whose rights and freedoms as set forth in this

Convention are violated shall have an effective remedy before a

national authority notwithstanding that the violation has been

committed by persons acting in an official capacity."

The Commission, assuming that the applicant has raised this

complaint in time as required by Article 26 (Art. 26) of the

Convention, refers to its above finding that the complaint to the

Administrative Court, which has been granted suspensive effect,

provides an effective remedy as regards the applicant's allegation that

his expulsion to Turkey would expose him to a real risk of being

subjected to inhuman treatment or torture. For this reason, the

applicant, in the particular circumstances of the case, has at his

disposal an effective remedy under Article 13 (Art. 13).

In conclusion, the Commission finds that this part of 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.

H.C. KRÜGER S. TRECHSEL

Secretary President

to the Commission of the Commission

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