Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 34772/97

by Mahmoud MAMOU and Others

against Hungary

The European Commission of Human Rights sitting in private on

20 May 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.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. 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 4 February 1997

by Mahmoud MAMOU and Others against Hungary and registered on 4

February 1997 under file No. 34772/97;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having regard to the observations submitted by the respondent

Government on 20 February 1997 and the observations in reply submitted

by the applicants on 17 March 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicants are Syrian passport-holders of Kurdish origin (see

complete list in the Annex). They submit that they have been deprived

of their Syrian citizenship and that their status in Syria is that of

stateless "foreigners". At the time of lodging their application, they

were detained at the Budapest Ferihegy International Airport Community

Accommodation Centre (Közösségi Szállás). In the proceedings before the

Commission they are represented by Mr. J. Somogyi, a lawyer practising

in Budapest.

A. Particular circumstances of the case

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

summarised as follows.

On 25 December 1996 the applicants, coming from Damascus, Syria,

arrived at the Budapest Ferihegy International Airport. At the passport

control, the Hungarian immigration authority established that their

visas had already been reported stolen. Subsequently the applicants

were informed that they would be returned to Syria. The applicants,

assisted by an interpreter, signed the decision of the Budapest Border

Guard Directorate (Budapesti Határor Igazgatóság) to that effect and

waived their right to appeal. On the same day Dr. S., a lawyer acting

on behalf of the Mahatma Gandhi International Human Rights

Organisation, contacted the applicants.

On 26 December 1996 the applicants brought a request for asylum.

On the same day they were committed to the Community Accommodation

Centre.

The applicants allege that at the Community Accommodation Centre

they were all - men, women and children together - lodged in three

rooms of an overall ground surface of approximately 30 square metres,

packed with bunk beds. They were allegedly controlled by armed guards

and they were not allowed to leave the premises of the Centre.

On 27 December 1996 the Border Guard Directorate, pending the

asylum proceedings, suspended the enforcement of the applicants'

deportation to Syria.

On 30 December 1996 the Hungarian authorities heard the

applicants, represented by Dr. S., with a view to clarifying their

situation, if returned to Syria. The authorities informed Dr. S. that

the decision of 25 December could only be challenged before the court,

since the applicants had already waived their right to appeal.

After having interviewed the applicants, on 10 January 1997 the

Hungarian Branch Office of the United Nations High Commissioner for

Refugees ("UNHCR") dismissed the applicants' request for asylum on the

ground that their allegations lacked credibility. The applicants'

appeals were to no avail.

On 31 January 1997 the Office for Refugee and Migration Matters

(Menekültügyi és Migrációs Hivatal) and the Ministry of Foreign Affairs

(Külügyminisztérium) approved the applicants' deportation to Syria. On

the same day the Directorate ordered the applicants' deportation.

Upon the announcement of the deportation order, the applicants

insisted that they would not leave Hungary for any Arab country. As a

consequence, and in compliance with the indication of the Commission

of 4 February 1997 under Rule 36 of its Rules of Procedure, the

applicants' deportation, which was scheduled for 5 February 1997, did

not eventually take place.

On 5 February 1997 Dr. S. brought an action on behalf of the

applicants before the Pest Central District Court (Pesti Központi

Kerületi Bíróság) challenging the Directorate's deportation order. The

proceedings are still pending.

Meanwhile the applicants were committed to the Refugee Reception

Camp (Menekülteket Befogadó Állomás) in Bicske. On 20 February 1997 the

Ministry of the Interior (Belügyminisztérium) established that the

applicants had left the camp by undoing the fence.

In their submissions of 25 March 1997, the Government stated that

the applicants had meanwhile left Hungary.

In his submissions of 3 April 1997, the applicants'

representative confirmed that the applicants had left Hungary and were

now staying in Bonn, Germany.

B. Relevant law

1. Geneva Convention relating to the Status of Refugees

The Geneva Convention entered into force in respect of Hungary

in 1989. Upon deposit of its instrument of accession to the Convention,

Hungary made a declaration according to which, in meeting the

obligations under the Convention, Hungary would apply version (a) of

Chapter B (1) of Article 1 of the Convention (European territory).

Chapter B (1) reads as follows:

"B. (1) For the purposes of this Convention, the word "events

occurring before 1 January 1951" in Article 1, section A, shall

be understood to mean either

(a) "events occurring in Europe before 1 January 1951"; or

(b) "events occurring in Europe or elsewhere before

1 January 1951"; and each Contracting State shall make a

declaration at the time of signature, ratification or

accession, specifying which of these meanings it applies

for the purpose of its obligations under this Convention."

On the basis of this declaration and an agreement between the

Government of Hungary and the United Nations High Commissioner for

Refugees ("UNHCR"), signed in Geneva on 4 October 1989, UNHCR proceeds

in cases of non-European refugees. If UNHCR recognises an applicant

applying for refugee status as a refugee and requests the Hungarian

authorities to grant a residence permit to such a person, the Hungarian

authorities as a rule issue the residence permit or, upon request of

UNHCR, are ready to prolong the period of such a permit automatically

at any time.

According to the general practice, the Hungarian authorities as

a rule give notice without delay to UNHCR representatives whenever a

non-European applicant applies for refugee status in Hungary.

2. Aliens Act

According to S. 2 para. 3 of the Aliens Act (a külföldiek

beutazásáról, magyarországi tartózkodásáról és bevándorlásáról szóló

1993. évi LXXXVI. törvény), the Aliens Act does not apply to any

foreigner requesting asylum - until his request is finally dismissed -,

nor to any foreigner recognised as refugee by the Hungarian

authorities. Section 32 para. 1 of the Act prohibits the expulsion or

return of foreigners to a country where they would be exposed to the

danger of persecution for reasons connected with their race, religion,

national, social affiliation or political views, furthermore, where

there is a serious risk that foreigners, upon their return, would be

exposed to torture, inhuman treatment or degradation.

Section 35 provides as follows: An expulsion order, taken in

pursuance of the Aliens Act, can be appealed within three days from its

announcement. The enforcement of the expulsion order can be ordered in

advance, inter alia, if the alien does not have any income and

accommodation or if such a measure is necessitated by the interests of

public order or the security of the Republic of Hungary. The

enforcement in advance of the expulsion order shall not be ordered, if

the alien, in his appeal, renders it probable that his expulsion would

infringe his human rights or freedoms, guaranteed by the Republic of

Hungary in an international treaty; in such a case, the first instance

authority - unless it quashes its order - shall immediately refer the

appeal and the case-file to the second instance authority, which shall

decide within eight days. The review of an expulsion order, taken at

second instance, can be requested from the court within eight days from

the announcement of the order.

According to Section 50 para. 1, the court shall give precedence

to cases concerning the review of decisions taken by the alien

administration in pursuance of the Aliens Act, save the decisions

dismissing a request for immigration.

COMPLAINTS

1. The applicants complain under Article 3 of the Convention that

their deportation to Syria would expose them to the risk of being

subjected to torture, or to inhuman and degrading treatment or

punishment. They submit that they were persecuted by the Syrian

authorities on account of their Kurdish origin.

2. The applicants complain about their detention at the Community

Accommodation Centre between 25 December 1996 and the end of January

1997. They consider that their detention was unlawful in that no formal

decision was taken in the matter. They further complain that they could

not have the lawfulness of their detention reviewed and there was no

remedy available in this respect. The applicants also complain that the

conditions of their detention at the Community Accommodation Centre

amounted to a breach of their right to respect for their private and

family life. They invoke Article 5 paras. 1 and 4 and Articles 8 and

13 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced and registered on 4 February 1997.

Also on 4 February 1997 the President of the Commission decided

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

communicate the complaint under Article 3 of the Convention to the

respondent Government, pursuant to Rule 34 para. 3 and Rule 48 para. 2

(b) of the Rules of Procedure, for observations on its admissibility

and merits.

The Government's written observations were submitted on

20 February 1997. The observations in reply by the applicants were

submitted on 17 March 1997.

On 6 March 1997 the Commission decided to prolong the indication

under Rule 36.

On 25 March 1997 the Government submitted supplementary

observations.

On 3 April 1997 the applicants' representative submitted

supplementary observations.

On 17 April 1997 the Commission decided not to prolong the

indication under Rule 36.

THE LAW

1. The applicants complain under Article 3 (Art. 3) of the

Convention that their deportation to Syria would expose them to the

risk of being subjected to torture, or to inhuman and degrading

treatment or punishment.

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 applicants have not yet exhausted

all domestic remedies available to them, their action being pending

before the District Court. Moreover, the Government consider the

application unfounded. The Hungarian authorities proceeded in

conformity with Article 3 (Art. 3) of the Convention when, relying upon

the findings and the decisions of UNHCR, they decided to return the

applicants to Syria. UNHCR, when examining the applications for refugee

status, also assessed the relevant issues arising under Article 3

(Art. 3) and found the applicants' allegations lacking credibility in

this respect. Finally, referring to the fact that the applicants have

meanwhile left Hungary, the Government request the Commission to strike

the application out of its list of cases.

The applicants submit that they have exhausted the domestic

remedies. There was no remedy available against the decision of

31 January 1997. Their court action cannot be regarded as an effective

remedy, as it would not warrant a postponement of the deportation.

Moreover, the decisions of UNHCR were, in their view, wrong, their

account of persecution in Syria having been substantiated. Furthermore,

in his submissions of 3 April 1997, the applicants' representative

stated that the applicants had left Hungary and had fled to Germany,

after having been contacted and threatened by an officer of the Syrian

Embassy in Hungary in the Bicske camp.

The Commission considers that it need not examine the parties'

arguments as to the exhaustion of domestic remedies, since this part

of the application is in any event inadmissible for the following

reasons.

The Commission recalls that the expulsion of an asylum seeker may

give rise to an issue under Article 3 (Art. 3) 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 or she is to be

returned (Eur. Court HR., Vilvarajah and Others v. United Kingdom

judgment of 30 October 1991, Series A no. 215, p. 34, para. 103).

In the present case the Commission notes that the applicants have

left the territory of Hungary. The complaint concerning their envisaged

deportation from Hungary to Syria has, therefore, become without

object. The Commission finds that in these circumstances the applicants

can no longer claim to be victims of a violation of their rights under

Article 3 (Art. 3) of the Convention.

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.