AS TO THE ADMISSIBILITY OF

                      Application No. 33052/96

                      by Hasan GÜNDOGDU

                      against Austria

     The European Commission of Human Rights sitting in private on

6 March 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

                 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

           Mr.   R. NICOLINI

           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;

-    the application introduced on 19 September 1996 by Hasan GÜNDOGDU

     against Austria and registered on 20 September 1996 under file

     No. 33052/96;

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

     the Commission;

-    the observations submitted by the respondent Government on

     4 October 1996 as well as on 15 November 1996 and the

     observations in reply submitted by the applicant on

     16 October 1996 as well as on 29 November 1996;

-    the further observations submitted by the Government on

     17 January 1997, and the observations in reply submitted by the

     applicant on 10 February 1997

     Having deliberated;

     Decides as follows:

THE FACTS

     The applicant, born in 1972, is a Turkish national. At the time

of lodging his application he was detained at the Salzburg Stadt Police

Prison. In the proceedings before the Commission he is represented by

Mr. W. Vacarescu, a lawyer practising in Graz.

A.   Particular circumstances of the case

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

summarised as follows.

     On 16 August 1994 the applicant crossed the border between

Hungary and Austria. He carried a passport giving the name of

Ahmed Koyuncu. He was immediately taken into detention with a view to

his expulsion.

     On 17 August 1994 he applied for asylum and was heard by the

Eisenstadt branch of the Federal Office for Asylum (Bundesasylamt),

which rejected his request on the same day. It noted the applicant's

submissions that he was of Kurdish origin and had, since 1989, been

active for the TKPML (Turkish Communist Party/Marxist Leninist), of

which he formally had become a member in 1991. His task was to make

propaganda for the party and to win supporters. Since 1991 the Turkish

police had frequently arrested members of his party, had tortured them

and thus obtained the names of further members. In May 1994 he had

participated in an illegal demonstration, had been beaten on the head

by the police and lost consciousness. In the first half of July 1994

about sixty members of TIKKO (Turkish Worker Peasant Liberation Army),

the militant wing of TKPML, had been arrested and the names of more

TKPML members had been disclosed. Also his cover name had become known

and the police was searching for him.

     The Federal Office for Asylum found that the reasons invoked by

the applicant did not suffice to show that he suffered political

persecution within the meaning of the Geneva Convention relating to the

Status of Refugees (Refugee Convention). Rather he risked legitimate

criminal prosecution for supporting a terrorist organisation, namely

the TKPML. Moreover, referring to S. 2 para. 2 (3) of the Asylum Act

(Asylgesetz), it found in any case that he had no right to be granted

refugee status, as he had been in safe countries (sicheres Drittland)

prior to his arrival in Austria. In particular, he had stayed in

Bulgaria, Rumania, the Ukraine and Hungary.

     On 18 August 1994 the Neusiedel District Administrative Authority

(Bezirksverwaltungsbehörde) ordered the applicant's deportation

(Ausweisung) on the ground of his illegal entry from Hungary.

     On 2 September 1994 the Graz Federal Police Authority

(Bundespolizeidirektion), upon the applicant's request under S. 54 of

the Aliens Act (Fremdengesetz), heard him as regards the question

whether his expulsion to Turkey would be permissible. These proceedings

are still pending.

     The applicant submitted in particular that he was of Kurdish

origin and had supported anti-government groups since his youth. Since

1990 he had lived in the underground, mainly in Istanbul, as the police

was searching for him. Since 1991 he had been an active member of an

illegal leftist party, namely TKPML, which supported minority groups,

like Kurds and Armenians. Being a journalist he had drafted propaganda

material for his party, had made interviews in the war zones and the

like. It was there that pictures had been taken of him which were

published in several newspapers and thus had come to the attention of

the Turkish authorities. His party had organised documents for him

carrying the name of Ahmed Koyuncu. His cover name within the party was

"Cemal". He used it for example when he was publishing articles in the

party newspaper. In May 1994 he had participated in a demonstration and

had received a heavy blow on the head. In July 1994 about sixty persons

belonging to minority groups had been arrested, including a member of

his party. He had left Turkey on 20 July 1994.

     On 20 September 1994 the Burgenland Public Security Authority

(Sicherheitsdirektion) confirmed the deportation order against the

applicant. Referring to S. 17 para. 2 (6) of the Aliens Act, it found

that he had entered Austria illegally. As he had not come directly from

the country where he was allegedly persecuted this entry was not

justified under the Asylum Act. Finally, a deportation order obliged

him to leave Austria, but did not oblige him to return to his country

of origin. The question whether he could be returned to Turkey was

reviewed in separate proceedings under S. 54 of the Aliens Act.

     On 29 September 1994 the Federal Ministry for the Interior

(Bundesministerium für Inneres) rejected the applicant's appeal against

the refusal of his request for asylum. However, it granted the

applicant special leave to stay until 20 March 1995.

     The Ministry found that the applicant had failed to show that he

had left his country of origin for a well-founded fear of persecution.

His submissions that the Turkish police was searching for him on

account of his membership in the TKPML were not credible, as he had not

been able to specify them. Moreover, he had only claimed to have

disseminated propaganda and tried to win supporters. In view of the low

profile of these activities, it was not clear why the State would have

any particular interest in persecuting him. As regards his submissions

that he had been beaten during an illegal demonstration, the Ministry

noted that the recourse to force which was necessary to maintain public

security, did not constitute persecution. Finally, the applicant had

obtained a Turkish identity card and a passport in April and May 1994,

respectively, i.e. before the events which allegedly caused him to

flee, which again cast doubt on his credibility.

     Furthermore, the Ministry noted that the applicant in any case

had no right to asylum because he had been in safe countries before

coming to Austria. He had travelled via Bulgaria, Rumania, the Ukraine

and Hungary. As Bulgaria, Rumania and Hungary were parties to the

Refugee Convention, he could have requested asylum in one of these

countries without running the risk of being expelled to Turkey before

an examination of his request. The Ministry noted that the applicant

had submitted a document of 25 March 1994 by the United Nations High

Commissioner for Refugees (UNHCR) concerning the protection from

expulsion in Rumania and Bulgaria. However, UNHCR had not shown any

specific case where an expulsion had taken place contrary to the rules

of international law. As regards Hungary, it was true that this State

had only ratified the Refugee Convention with regard to European

refugees. However, as the application had been resident in Istanbul,

i.e. in the European part of Turkey, it would have been applicable to

him. Moreover, the Ministry referred to observations of 4 July 1994

submitted by UNHCR to the German Federal Constitutional Court,

according to which asylum seekers coming from outside Europe were

allowed to stay in Hungary until UNHCR had examined their asylum

requests. Hungary had also ratified the European Convention on Human

Rights and was thus bound by its Article 3.

     Finally, the Ministry noted that it could, in accordance with

S. 8 of the Asylum Act, upon refusing a request for asylum, grant leave

to stay for a maximum period of one year, if an expulsion was

impossible for legal or factual reasons or if the person concerned

could not be expected to return to his country of origin on account of

the situation pertaining in that country. The Ministry, without giving

any specific reasons, noted that the conditions for granting such leave

to stay were met in the applicant's case.

     On 27 June 1995 the Administrative Court (Verwaltungs-

gerichtshof), upon the applicant's complaint, quashed the Ministry's

decision as regards the refusal of asylum.

     The Court found that the Ministry had not duly considered the

applicant's argument that following the disclosure of his cover name

and his membership in an illegal organisation, namely TKPML, he risked

persecution. In particular it noted that the applicant had, in the

appeal proceedings, submitted a newspaper article which showed his

membership of the TKPML and thereby also proved its disclosure. The

Ministry would have been required to deal with the applicant's

submissions that the penalty he risked to incur in this context was

disproportionate and was, in view of the practice of torture in Turkish

prisons, to be qualified as persecution on account of his political

beliefs. Without further investigations it was not possible to conclude

that the applicant would not suffer political persecution. In addition,

the Court, referring to its own case-law, noted that even a suspicion

of participation in armed conflict with Government troops - which might

possibly be indicated by the said newspaper article - did not prevent

the granting of refugee status. The fact that the applicant had

obtained a passport, under a wrong name, prior to the events which had

caused his flight, did not in itself cast doubt on his credibility.

     Moreover, the Court rejected the Ministry's reasoning as to the

protection of the applicant in safe countries. If the Ministry had

doubts as regards the information contained in the UNHCR document

concerning Bulgaria and Rumania, which the applicant had presented, it

would have been called upon to carry out further investigations.

Hungary had limited its obligations under the Refugee Convention. Its

application depended on whether the events causing the flight had

occurred in Europe or not. It was irrelevant whether the applicant had

been resident in the European or in the Asian part of Turkey, as the

events relied on by him had possible repercussions in the entire

country. Thus, the Ministry's arguments as regards protection in

Hungary were not persuasive. Inasmuch as the Ministry had relied on

observations of UNHCR of 4 July 1994 it had failed to hear the

applicant. Moreover, this report was not enclosed in its file. A mere

reference to Hungary's adherence to the European Convention on Human

Rights was not sufficient either to qualify it as a safe country.

     In conclusion, the Court found that the proceedings had suffered

from considerable procedural defects, as the Ministry had failed to

carry out the necessary investigations and to respect the applicant's

right to be heard on their results.

     On 19 March 1996 the applicant got married. His wife is also a

Turkish national, who had been granted refugee status on

19 January 1995 by the Salzburg branch of the Federal Office for

Asylum.

     On 12 August 1996 the Ministry for the Interior in renewed

proceedings rejected the applicant's request for asylum on the ground

that prior to his arrival in Austria he had stayed in Hungary, which

had to be considered a safe country. Thus, he should have requested

asylum there. The Ministry again relied on the observations of UNHCR

of 4 July 1994. It noted that it had now given the applicant the

opportunity to comment on them. However, his submissions in which he

referred to a report of UNHCR from November 1995 in order to show that

Hungary was not a safe country, were irrelevant as the question had to

be assessed on the basis of the situation pertaining at the time of the

applicant's stay in Hungary. His request to hear a particular witness

had to be rejected on the same ground.

     On 6 September 1996 the applicant was taken into detention with

a view to his expulsion at the Salzburg Stadt Police Prison. The

Salzburg Federal Police Authority has already requested a "laissez-

passer" (Heimreisezertifikat) in order to return him to Turkey.

     On 10 September 1996 the applicant requested the Minister for the

Interior to look into his case. According to the Government, the

Salzburg Federal Police Authority was thereupon requested to submit a

report and to refrain from expelling the applicant.

     On 11 September 1996 the applicant again lodged a complaint with

the Administrative Court and requested that it be given suspensive

effect.

     On 17 September 1996 the Salzburg Independent Administrative

Panel (Unabhängiger Verwaltungssenat) dismissed the applicant's appeal

finding that his detention was lawful. It noted in particular that the

applicant was illegally residing in Austria and that there was an

enforcable deportation order against him. Thus, his detention served

the purpose of securing his expulsion. According to the case-law of the

Administrative Court, the question whether expulsion to a specific

State was permissible was not to be reviewed in the proceedings

relating to the lawfulness of the detention with a view to expulsion,

but in separate proceedings. The fact that proceedings under S. 54 of

the Aliens Act were still pending did not render the applicant's

detention unlawful. Moreover, the Federal Police Authority had already

taken steps to obtain a "laissez-passer" for the applicant.

     On 19 September 1996 the Salzburg Independent Administrative

Panel dismissed the applicant's renewed appeal. It noted that contrary

to its finding in the first decision, the applicant was married.

However, this was rather an argument for and not against the assumption

that he would try to evade his expulsion. Moreover, he was not unfit

for detention. A medical examination of 18 September had shown that,

despite the fact that he had been on hunger strike since thirteen days,

his circulation was stable and he did not suffer from metabolic

disturbances. In conclusion, his further detention with a view to his

expulsion was lawful.

     On 20 September 1996 the Administrative Court rendered a decision

on the applicant's request that his complaint against the Ministry's

decision of 12 August 1996 be given suspensive effect. It stated that

the request was granted with the effect that the applicant obtained the

legal status which he had had as an asylum seeker before the contested

decision was issued.

     On 23 September 1996 the Salzburg Independent Administrative

Panel again found that his detention with a view to his expulsion was

lawful. It referred to its decision of 19 September 1996 and noted that

the applicant had, immediately after the service of this decision,

lodged a new appeal without dealing with the arguments contained

therein and without submitting any new facts. His submission of

20 September in which he referred to a letter of the Secretary of the

European Commission of Human Rights of the same day was irrelevant as

it only contained an indication of the Commission to the Austrian

Government to refrain from the applicant's expulsion until the

Commission could examine his application. However, the requirements for

his detention were still met and his release could only be envisaged

if his expulsion was impossible at all and not only temporarily.

     The applicant was released on the same day.

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

or adherence to a particular social group or political opinion.

     S. 2 para. 3 states that asylum is not to be granted to a refugee

who has already been safe from persecution in another country.

     S. 4 provides that, upon request, the granting of asylum is to

be extended to the spouse if the marriage has already existed before

the entry into Austria.

     According to S. 7 para. 1 an asylum seeker who has entered

Austria in accordance with Article 6 (i.e. who has come directly from

the State where he allegedly suffered persecution) and who has filed

his request for asylum within one week, has a temporary right to

residence.

     S. 8 provides that the asylum authority, upon refusing a request

for asylum, may in cases which merit particular consideration, ex

officio grant the alien a temporary right to residence, if his

expulsion is impossible for legal of factual reasons or if he cannot

be expected to return to his country of origin on account of the

situation pertaining there or for other important reasons

(paragraph 1). This temporary right to residence may be granted for a

period of up to one year and may be prolonged for a further period of

up to one year if the reasons for granting it persist (paragraph 2).

     Aliens Act (Fremdengesetz 1992)

     S. 17 para. 2 (6) of the Aliens Act states that a deportation

order may be issued against an alien in the interest of public order,

if he has entered Austria contrary to the provisions regulating the

entry of aliens or by evading boarder controls and has been discovered

within one month.

     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 capital

punishment 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 his security

would be endangered on grounds of his race, religion, nationality or

adherence to a social group or on the ground of his political opinions.

     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 issue 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.

     Federal Constitutional Act (Bundes-Verfassungsgesetz)

     Article 130 para. 1 of the Federal Constitutional Act provides

that the Administrative Court decides on complaints about the alleged

unlawfulness of decisions of the administrative authorities including

the Independent Administrative Panels.

     According to Article 144 para. 1 of the Federal Constitutional

Act, the Constitutional Court decides on complaints about decisions of

the administrative authorities including the Independent Administrative

Panels, if the applicant alleges that the decision violated his

constitutionally guaranteed rights or that the decision was based on

an illegal decree, an unconstitutional law or an unlawful international

treaty and thereby violated his or her rights.

COMPLAINTS

1.   The applicant complains that his expulsion to Turkey would expose

him to a real risk of being subjected to treatment contrary to

Article 3 of the Convention. In particular he risks being tortured and

being subjected to a disproportionate penalty on account of his

membership of the TKPML, an illegal leftist party. Being a journalist,

he stayed in the mountains with rebels of TIKKO, the militant wing of

the TKPML. Reports which also contained his picture were published in

Turkish newspapers. He points out that even the Austrian Administrative

Court has found that his membership and activity for TKPML were

established. In his observations of 10 February 1997 the applicant also

invokes Article 2 of the Convention. He submits that he risks to be

prosecuted for offences which carry the death penalty, namely treason

or attempt to owerthrow the constitution. Further, there is also a risk

of arbitrary execution for persons like him who are suspected of

terrorist activities or political offences.

2.   In his observations of 16 October 1996 the applicant also

complains under Article 5 of the Convention that his detention was

unlawful and that the review by the Independent Administrative Panel

was not in conformity with paragraph 4 of this Article. He submits in

particular that the Panel could only review the formal aspects of the

lawfulness of his detention with a view to his expulsion, e.g. whether

it had been ordered by a decision and whether the time-limits were

respected,  whereas it could not review the lawfulness of the expulsion

as such.

3.   Also in his observations of 16 October 1996 the applicant

complains under Article 8 of the Convention that his expulsion would

violate his right to respect for his family life as he is married to

a Turkish national who has been granted refugee status in Austria in

1995 and can therefore not be expected to follow him to Turkey.

4.   Again in his observations of 16 October 1996 the applicant

complains under Article 13 of the Convention that the proceedings under

S. 54 of the Aliens Act do not provide an effective remedy against an

expulsion which would be contrary to Article 3. In his submissions of

29 November 1996 the applicant further complains that he has no

effective remedy against a violation of his right to respect for his

family life under Article 8.

5.   In further submissions of 25 October 1996 the applicant complains

under Article 6 that, in the proceedings under S. 54 of the Aliens Act,

he cannot obtain a decision by an impartial tribunal. He argues that

these proceedings concern his right to freedom from injury, which has

to be classified as a civil right.

6.   In his submissions of 29 November 1996 the applicant complains

that the proceedings under S. 54 of the Aliens Act are not in

conformity with Article 14 of the Convention. He refers to his

submissions relating to the question whether these proceedings provide

an effective remedy as regards complaints under Article 3.

PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 19 September 1996 and

registered on 20 September 1996.

     On 19 September 1996 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

4 October 1996. The applicant replied on 16 October 1996. The

Government made further submissions on 17 October 1996, to which the

applicant replied on 25 October 1996.

     On 24 October 1996 the Commission decided to prolong the

application of Rule 36 of its Rules of Procedure and to communicate the

applicant's complaints which he had raised in his submissions of

16 October 1996 to the respondent Government.

     The Governments written observations were submitted on

15 November 1996. The applicant replied on 29 November 1996.

     On 6 December 1996 the Commission decided to prolong the

application of Rule 36 of its Rules of Procedure and to put a further

question to the Government as to the merits of the applicant's

complaint under Article 3 of the Convention.

     The Government's further observations were submitted on

17 January 1997, after an extension of the time-limit. The applicant

replied on 10 February 1997.

THE LAW

1.   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 tortured and subjected to a disproportionate penalty on

account of his membership of the TKPML, an illegal leftist party. The

applicant also relies on Article 2 (Art. 2) of the Convention, claiming

that he risks to be persecuted for offences which carry the death

penalty.

     Article 2 para. 1 (Art. 2-1) of the Convention reads as follows:

     "Everyone's right to life shall be protected by law.  No one

     shall be deprived of his life intentionally save in the execution

     of a sentence of a court following his conviction of a crime for

     which this penalty is provided by law."

     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 Commission recalls that the expulsion of an alien may give

rise to an issue under Article 3 (Art. 3) of the Convention, where

substantial grounds have been shown for believing that the person in

question, if expelled, would face a real risk of being subjected to

torture or inhuman or degrading treatment in the country to which he

is expelled (see Eur. Court HR, Chahal v. the United Kingdom judgment

of 15 November 1996, to be published in Reports of Judgments and

Decisions 1996, paras. 73-74).

     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 Administrative Court,

on 20 September 1996, granted the applicant's request that his

complaint against the refusal of asylum be given suspensive effect.

Moreover, the applicant failed to lodge a complaint with the

Constitutional Court. The Government refer to the case of C.R. and

Others v. Austria (No. 18101/91, Dec. 7.5.93, unpublished), concerning

the complaint of a group of Tamils from Sri Lanka that their expulsion

would violate Article 3 (Art. 3) of the Convention. In this case the

Commission found that the applicants failed to exhaust domestic

remedies on the ground that they had not lodged a complaint with the

Constitutional Court and the Administrative Court.

     Further, the Government argue that proceedings under S. 54 of the

Aliens Act with the purpose of establishing whether the applicant's

expulsion to Turkey is permissible are still pending before the

Neusiedel District Administrative Authority. Inasmuch as the applicant

complains that no decision has been taken in these proceedings, the

Government submit that he failed to make a request for transfer of

jurisdiction to the higher authority (Devolutionsantrag). In any case,

as long as no final decision has been taken in these proceedings, the

applicant's expulsion is prohibited by S. 54 para. 4 of the said Act.

Moreover, the applicant could lodge a complaint with the Constitutional

Court and the Administrative Court against a decision in these

proceedings.

     Finally, the Government refer to S. 37 para. 6 of the Aliens Act,

according to which the applicant may not be expelled as long as this

would be contrary to an interim measure indicated by the Commission.

     The applicant contests the Government's view. He points to the

wording of the Administrative Court's decision of 20 September 1996

according to which he obtains the legal status he had before the

decision refusing his request for asylum. However, he did not have a

right to stay in Austria under S. 7 of the 1991 Asylum Act, as he had

not travelled to Austria directly from the persecuting state. The

special leave to stay, based on S. 8 of the Asylum Act, which the

Ministry for the Interior had granted him by decision of 29 September

1994 had expired on 20 March 1995 and had not been renewed. Thus,

despite the Administrative Court's decision, he was illegally in

Austria. As regards the Commission's decision in Application

No. 18101/91, the applicant submits that it concerned proceedings under

the 1968 Asylum Act, according to which the applicants in that case had

a temporary right to residence. Moreover, the Commission did not only

rely on the non-exhaustion of domestic remedies when declaring this

case inadmissible, but found that the applicants' complaint was in any

case manifestly ill-founded.  Furthermore, the applicant points out

that the deportation order against him is final and can be executed at

any time.

     As regards the proceedings under S. 54 of the Aliens Act, the

applicant submits that his request for a decision that his expulsion

to Turkey would not be permissible has been pending at first instance

since 2 September 1994. No decision has been taken to date, whereas the

deportation order against him has become final. He points out that he

could only make a request under S. 54 of the Aliens Act while

proceedings concerning the deportation order were pending and that he

had no possibility of invoking this provision once he was taken into

detention with a view to expulsion.

     Furthermore the applicant submits that these proceedings suffer

from various general defects. Firstly, the same authorities, namely the

Federal Police Authorities and the Public Security Authorities which

order detention with a view to expulsion are competent to decide

whether his expulsion to a specific country would be permissible. Once

a negative decision has been taken at second instance the expulsion is

permissible. It is true that the person concerned may lodge a complaint

with the Constitutional Court and with the Administrative Court

together with a request for suspensive effect. However, until these

courts take a decision on such a request the expulsion may be carried

out. The applicant alleges that this actually happens and that it comes

to a virtual race between the alien's counsel and the immigration

authorities. He submits a newspaper article and a number of documents

relating to the case of a Turkish national of Kurdish origin who was

expelled five days after the Public Security Authority had given a

negative decision in proceedings under S. 54 of the Aliens Act, and on

the very day the Constitutional Court granted his complaint against

this decision suspensive effect.

     The Commission recalls that in the area of the exhaustion of

domestic remedies there is a distribution of the burden of proof. It

is incumbent on the Government claiming non-exhaustion to satisfy the

Convention organs that the remedy was an effective one available in

theory and in practice at the relevant time, that is to say that it was

accessible, was one which was capable of providing redress in respect

of the applicant's complaints and offered reasonable prospects of

success. However, once this burden of proof has been satisfied it falls

to the applicant to establish that the remedy advanced by the

Government was in fact exhausted or was for some reason inadequate and

ineffective in the particular circumstances of the case or that there

existed special circumstances absolving him or her from the requirement

(Eur. Court HR, Akdivar v. Turkey judgment of 16 September 1996, to be

published in Reports of Judgments and Decisions 1996, para. 68).

     The Commission further recalls that a remedy which does not

suspend execution of a decision to expel an alien to a specified

country is not effective for the purposes of Article 26 (Art. 26) of

the Convention (cf. 17550/90 and 17825/91, Dec. 4.7.91, D.R. 70 p. 298,

315 with further references).

     The Commission notes that the Administrative Court, by decision

of 20 September 1996, granted the applicant's complaint suspensive

effect. Thereby the applicant obtained the legal status which he had

had as an asylum seeker before the Ministry's decision of

12 August 1996. The Commission considers that it is not decisive

whether or not the applicant has a temporary right to residence under

the 1991 Asylum Act. What is important is that he has again the status

of an asylum seeker whose request for asylum has not yet been finally

rejected. In this context the Commission notes in particular that,

although the deportation order against the applicant has been final

since 20 September 1994, the police authorities did not take steps to

expel him before the rejection of his request for asylum became final

by the Ministry's decision of 12 August 1996. Moreover, they released

him from detention with a view to his expulsion three days after the

Administrative Court had taken its decision to grant his complaint

suspensive effect. In the circumstances of the case, the Commission has

no reasons to believe that the police authorities would proceed to the

applicant's expulsion while the proceedings before the Administrative

Court are still pending and despite the fact that his complaint has

been granted suspensive effect.

     Moreover, the Commission notes that the applicant, in accordance

with Article 130 para. 1 of the Federal Constitutional Act, may

complain before the Administrative Court that the decision of the

Ministry for the Interior, refusing his asylum request, was unlawful,

i.e. contrary to the Asylum Act. Thus, the Administrative Court has to

consider basically the same elements the Commission has to consider

under Article 3 (Art. 3), in particular the question whether the

applicant has left Turkey on account of a well-founded fear of

persecution. The same considerations apply as regards the applicant's

submissions under Article 2 (Art. 2) that he would be subjected to the

death penalty on account of his illegal political activities. If the

Administrative Court finds that the asylum authorities wrongly applied

the law or violated certain procedural requirements, it has to quash

the decision. Thus, it is able to consider, in substance, the

complaints raised by the applicant and to redress the situation

complained of.

     For these reasons, the Commission finds that the proceedings

which are currently pending before the Administrative Court provide an

effective remedy as regards the applicant's complaint that his

expulsion would expose him to a real risk of being tortured and

subjected to a disproportionate penalty or even the death penalty.

     Having regard to this finding, 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 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 has to be rejected

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

2.   The Commission will next examine the applicant's complaint under

Article 8 (Art. 8) of the Convention that his expulsion would violate

his right to respect for his private and family life as he is married

to a Turkish national who has been granted refugee status in Austria

in 1995 and can therefore not be expected to follow him to Turkey.

     Article 8 (Art. 8), so far as relevant, reads as follows:

     "1.   Everyone has the right to respect for his private and

     family life, ... .

     2.    There shall be no interference by a public authority with

     the exercise of this right except such as is in accordance with

     the law and is necessary in a democratic society in the interests

     of national security, public safety or the economic well-being

     of the country, for the prevention of disorder or crime, for the

     protection of health or morals, or for the protection of the

     rights and freedoms of others."

     As regards the exhaustion of domestic remedies the Government

rely on the same arguments as above. Further, they point out that the

applicant did not have a right to have his wife's right to asylum

extended to him under S. 4 of the Asylum Act.

     The applicant maintains that he has no effective remedy as

regards his complaint under Article 8 (Art. 8) of the Convention.

     The Commission recalls that the proceedings concerning the

applicant's complaint about the refusal of his request for asylum are

still pending before the Administrative Court and are having suspensive

effect. In these circumstances, the applicant's separation from his

wife is not yet imminent and his complaint appears to be premature.

     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.

3.   The applicant also complains under Article 5 (Art. 5) of the

Convention that his detention was unlawful and that the scope of review

of the Independent Administrative Panel was not in conformity with

paragraph 4 of this Article.

     Article 5 (Art. 5) of the Convention, so far as relevant, reads

as follows:

     "1.   Everyone has the right to liberty and security of person.

     No one shall be deprived of his liberty save in the following

     cases and in accordance with a procedure prescribed by law:

           ...

           f.    the lawful arrest or detention of a person ... against

     whom action is being taken with a view to deportation or

     extradition.

     4.    Everyone who is deprived of his liberty by arrest or

     detention shall be entitled to take proceedings by which the

     lawfulness of his detention shall be decided speedily by a court

     and his release ordered if the detention is not lawful."

     As regards the exhaustion of domestic remedies as required by

Article 26 (Art. 26) of the Convention, the Government rely on the same

arguments as above.

     The applicant submits that he could have lodged a complaint with

the Constitutional Court and the Administrative Court against the

decision of the Independent Administrative Panel. However, he refers

to case-law of the Constitutional Court according to which such

complaints would not have offered prospects of success.

     The Commission is not required to examine whether the applicant

has exhausted domestic remedies, as this part of the application is in

any event inadmissible for the reasons set out below.

     As to the merits of the complaint, the Government point out in

particular that the Salzburg Independent Administrative Panel found

that there was a final deportation order against the applicant and

that, thus, his detention with a view to his expulsion was lawful.

     The applicant submits that the Independent Administrative Panel

could only review the formal aspects of the lawfulness of his

detention, e.g. whether it had been ordered by a proper decision and

whether the time-limits were respected, whereas it could not review the

lawfulness of the expulsion as such. The question whether his expulsion

to Turkey was permissible had to be dealt with in separate proceedings

under S. 54 of the Aliens Act.

     The Commission notes that the applicant has not substantiated his

complaint under Article 5 (Art. 5) that his detention was unlawful

under domestic law. However, on the basis of the material before it,

there is no doubt that he was detained from 6 to 23 September 1996 with

a view to his deportation within the meaning of Article 5 para. 1 (f)

(Art. 5-1-f).

     The Commission recalls that all that is required under this

provision is that "action is being taken with a view to deportation"

and that it is, therefore, immaterial for the purposes of Article 5

para. 1 (f) (Art. 5-1-f), whether the underlying decision to expel can

be justified under national or Convention law (Eur. Court HR, Chahal

v. the United Kingdom judgment of 15 November 1996, to be published in

Reports of Judgments and Decisions 1996, para. 112).

     In the present case there was a final deportation order against

the applicant and specific steps to enact his expulsion, such as

requesting a "laissez-passer" for him, were taken. The applicant's

detention was, thus, in conformity with Article 5 para. 1 (f)

(Art. 5-1-f).

     As to Article 5 para. 4 (Art. 5-4), the Commission recalls that

the judicial review under this Article should be wide enough to bear

on those conditions which are essential for the "lawful" detention of

a person according to Article 5 para. 1 (Art. 5-1). In cases of

detention with a view to deportation it follows from the requirements

of Article 5 para. 1 (Art. 5-1) that Article 5 para. 4 (Art. 5-4) does

not demand that the domestic courts should have the power to review

whether the underlying decision to expel could be justified under

national or Convention law (Chahal v. the United Kingdom judgment, loc.

cit., paras. 127-128). In view of this case-law, the applicant's

complaint that the scope of review of the Independent Administrative

Panel was insufficient in that it could not examine the lawfulness of

his expulsion, does not disclose any appearance of a violation of

Article 5 para. 4 (Art. 5-4).

     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.

4.   The applicant complains under Article 6 (Art. 6) of the

Convention that, in the proceedings under S. 54 of the Aliens Act, he

cannot obtain a decision by an impartial tribunal. He argues that these

proceedings concern his right to freedom from injury, which has to be

classified as a civil right.

     The Commission recalls that the proceedings under S. 54 of the

Aliens Act deal with the question whether an alien may be expelled to

a specific State or whether his expulsion would be prohibited on the

ground that he would risk treatment contrary to Article 3 (Art. 3) of

the Convention or political persecution within the meaning of the

Refugee Convention in that country. They are, thus, closely linked to

the proceedings concerning the deportation order and do not fall within

the scope of Article 6 (Art. 6) (cf. No. 12972/87, Dec. 9.11.87, D.R.

54 p. 207, 212).

     It follows that this part of the application is incompatible

ratione materiae with the provisions of the Convention, within the

meaning of Article 27 para. 2 (Art. 27-2).

5.   The applicant complains under Article 13 (Art. 13) of the

Convention that the proceedings under S. 54 of the Aliens Act do not

provide an effective remedy against an expulsion which would be

contrary to Article 3 (Art. 3). He further complains that he did not

have an effective remedy as regards his complaint that his expulsion

would violate his right to respect for his family life under

Article 8 (Art. 8).

     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 Government submit that the proceedings under S. 54 of the

Aliens Act satisfy the requirements of Article 13 (Art. 13) of the

Convention. They refer to the Commission's admissibility decision in

the case of Ahmed v. Austria (No. 25964/94, Dec. 7.3.95, unpublished),

in which the Commission found that these proceedings "may, in

principle, provide an effective remedy against a foreigner's

expulsion". Further they point out again that S. 54 para. 4 of the

Aliens Act prohibits a foreigner's expulsion as long as no final

decision is taken in these proceedings.

     The applicant submits in particular that the immigration

authorities which decide in the proceedings under S. 54 of the Aliens

Act are not sufficiently independent and are, thus, not in conformity

with the requirements of Article 13 (Art. 13). As regards a review by

the Administrative Court he refers to his above submissions, alleging

in particular that the immigration authorities in most cases carry out

the expulsion without waiting for the Court's decision on a request for

suspensive effect and that the Administrative Court holds that the

applicant has no longer a legitimate interest in the decision once an

expulsion has taken place.

     The Commission, having regard to its above finding that the

Administrative Court granted the applicant's complaint in the asylum

proceedings suspensive effect, considers that the applicant in the

particular circumstances of the case, cannot claim to be a victim of

a violation of his right to an effective remedy as regards his

complaint under Article 3 (Art. 3) of the Convention. The applicant's

submissions concerning the alleged lack of an effective remedy as

regards his complaint under Article 8 (Art. 8) are unsubstantiated.

     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.

6.   Finally, the applicant complains that the proceedings under S. 54

of the Aliens Act are not in conformity with Article 14 (Art. 14) of

the Convention. He refers to his submissions relating to the question

whether these proceedings provide an effective remedy as regards

complaints under Article 3 (Art. 3).

     Article 14 (Art. 14) reads as follows:

     "The enjoyment of the rights and freedoms set forth in this

     Convention shall be secured without discrimination on any ground

     such as sex, race, colour, language, religion, political or other

     opinion, national or social origin, association with a national

     minority, property, birth or other status."

     The Commission recalls that this provision only prohibits

discrimination regarding enjoyment of the rights and freedoms

guaranteed by the Convention (cf. No. 19819/92, D.R. 78 p. 88).

     It appears that the applicant wishes to complain that he has been

discriminated against in the enjoyment of his rights under Article 3

(Art. 3) of the Convention. However, he has failed to substantiate in

what respect the proceedings under S. 54 of the Aliens Act are

discriminatory. The Commission finds that the applicant's submissions

do not disclose any appearance of a violation of Article 14 in

combination with Article 3 (Art. 14+3).

     It follows that this part of the application is manifestly ill-

founded within the meaning of Article 14 (Art. 14) 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