Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 28542/95

by S. M.

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 15 May 1996, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 12 September 1995

by S. M. against Austria and registered on 15 September 1995 under file

No. 28542/95;

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

of Procedure of the Commission;

Having deliberated;

Decides as follows:

FACTS

The applicant, born in 1963, is an Ethiopian national. When

lodging his application he was living in Vienna. He is a mining

engineer by profession. He is married to an Ethiopian national. In

the proceedings before the Commission, he is represented by

MM. A. Reiner, W. Hofer and A. Grohs, lawyers practising in Vienna.

The facts of the case, as they have been presented by the

applicant, may be summarised as follows.

The applicant grew up in Ethiopia with his family. The

applicant's parents owned a food shop. His father died in 1991, his

mother, seven brothers and one sister are living in Ethiopia. The

applicant went to school in Ethiopia between 1968 and 1982. He was

subsequently employed by an enterprise under the control of the

Ministry of Defence. In September 1983 he was allegedly arrested on

account of his membership and involvement in the "Ethiopian People's

Revolution Party" (EPRP) and participation in demonstrations. He was

released in August 1984, when he could take up his previous employment

again. Having been granted a scholarship, he left Ethiopia in 1985,

apparently together with his wife, in order to take up engineering

studies at the Donetsk University in the previous Union of Socialist

Soviet Republics. His passport was issued by the Addis Abeba Ministry

of Foreign Affairs in August 1985. He repeatedly returned to Ethiopia

and also allegedly obtained a new passport until April or May 1991 when

the new Ethiopian Government (the applicant refers to the "Tigrays

Peoples Liberation Front") took over political powers. Following the

termination of his studies, the applicant no longer had a residence

permit in the USSR.

In August 1991 the applicant and his wife took the train in

Moscow and travelled to Vienna, hidden in the Russian conductor's

compartment. They arrived in Vienna on 18 September 1991.

On 21 September 1991 the applicant applied for political asylum.

On 30 September 1991 the applicant was questioned by the Public

Security Authority (Sicherheitsdirektion) of Lower Austria on his

asylum request. He stated that he feared political persecution upon

his return to Ethiopia on account of his previous membership in the

EPRP.

On 23 October 1991 the Public Security Authority dismissed the

applicant's request for asylum. Referring to the results of its

investigations and in particular his statements of 30 September 1991,

it found that the applicant was not a refugee within the meaning of the

Geneva Refugee Convention. The Authority considered in particular that

there were no circumstances supporting the applicant's allegations.

On 3 May 1994 the Federal Ministry for the Interior

(Bundesministerium für Inneres) dismissed the applicant's appeal.

In its decision, the Ministry confirmed that the applicant was

not a refugee within the meaning of the Geneva Refugee Convention. As

regards the applicant's allegation of political persecution as a member

of the EPRP, the Ministry considered that the applicant had not proved

his membership in the EPRP. In any event, having regard to his

submission that following his imprisonment he had been in a position

to take up his previous employment and further to obtain a scholarship

for university studies in the USSR, the Ministry found that the

applicant had adapted his conduct to the prevailing political regime

and convinced the competent state authorities that he did not entertain

any serious relations with opposition groups. Moreover, he had

repeatedly returned to Ethiopia without any problems. The Ministry

also considered that the provisional Ethiopian Government comprised

several political parties, including the EPRP which is accepted as a

legal opposition party. In the prevailing political situation any risk

of the applicant's political persecution was unlikely.

The decision also contained the information that there was a

right to lodge a complaint, within six weeks following its service,

with the Austrian Administrative Court (Verwaltungsgerichtshof) and/or

the Austrian Constitutional Court (Verfassungsgerichtshof), and that

any such complaint had to be signed by counsel.

The applicant applied with the Administrative Court for legal aid

with a view to lodge a complaint and for appointment of counsel.

On 26 May 1994 the Administrative Court granted the applicant

legal aid in accordance with the relevant provisions of the

Administrative Court Act (Verwaltungsgerichtsgesetz), and ordered the

appointment of counsel. It also noted that the time-limit for lodging

the complaint started to run from the service of the decision on the

appointment of counsel.

The Vienna Bar Committee (Ausschuß der Rechtsanwaltskammer)

appointed Mr. A. Reiner as the applicant's counsel. The applicant's

counsel was informed accordingly on 12 August 1994.

On 19 September 1994 the applicant, assisted by counsel, applied

with the Constitutional Court for legal aid, lodged a complaint,

claiming a violation of his constitutional rights, and also requested,

as a subsidiary means, that his case be transferred to the

Administrative Court.

On 12 October 1994 the Constitutional Court rejected the

applicant's complaint as having been lodged out of time. The Court

found that the provision under the Administrative Court Act regarding

the time-limit to lodge a complaint in legal aid cases did not extend

to the proceedings before the Constitutional Court. As the applicant's

complaint had been rejected due to a procedural error, his request for

transfer to the Administrative Court had also to be rejected. No legal

aid could therefore be granted. The decision was served on 1 December

1994. On 12 December 1994 the applicant, assisted by counsel, lodged

a request for reinstatement of the complaint proceedings before the

Constitutional Court and at the same time again submitted his

complaint, his request for transfer and his request for legal aid. His

counsel claimed that due to incorrect information from the Bar

Association he had only realised upon service of the Constitutional

Court decision of 12 October 1994 that the complaint with the

Constitutional Court had been lodged out of time.

At the same day, the applicant, assisted by counsel, lodged a

request for reinstatement of the complaint proceedings before the

Administrative Court and filed his complaint. His counsel again

claimed that due to incorrect information from the Bar Association he

had only realised upon service of the Constitutional Court decision of

12 October 1994 that the complaint with the Constitutional Court had

been lodged out of time, and that he had therefore been prevented,

through no fault of his own, from lodging the complaint with the

Administrative Court in time.

On 28 February 1995 the Constitutional Court dismissed the

applicant's request for reinstatement of the proceedings. The Court

found that reinstatement could be granted if a party was exceptionally

prevented from filing a request in time, even if there was a minor

fault on the part of the party concerned. However, the applicant had

failed duly to inform himself about the procedural requirements for

lodging complaints with the Constitutional Court and the Administrative

Court. His alleged legal error as to the consequences of filing a

request for legal aid with the Administrative Court could not be

regarded as a minor fault. His complaint was thus rejected as having

been lodged out of time. His requests for transfer and legal aid were

also rejected. The decision was served on 16 March 1995.

On 2 March 1995 the Administrative Court dismissed the

applicant's request for reinstatement of the proceedings. The Court

found that the applicant's submissions did not show that he had been

prevented from filing the complaint with the Administrative Court in

time. His complaint was therefore rejected as having been lodged out

of time. The decision was served on 12 April 1995.

COMPLAINTS

1. The applicant complains under Articles 2 and 3 of the Convention

that his deportation to Ethiopia would expose him to a risk for his

life and subject him to inhuman and degrading treatment.

2. The applicant further complains under Article 6 of the Convention

that both the Constitutional Court and the Administrative Court refused

to decide on the merits of his complaints about the decision of

3 May 1994.

THE LAW

1. The applicant complains that his deportation to Ethiopia would

expose him to a risk for his life and subject him to inhuman and

degrading treatment.

He relies on Article 3 (Art. 3) of the Convention, which provides

as follows:

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

treatment or punishment."

He also invokes Article 2 para. 1 (Art. 2-1) of the Convention,

which provides:

"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."

The Commission recalls that Contracting States have the right to

control the entry, residence and expulsion of aliens. The right to

political asylum is not protected in either the Convention or its

Protocols (Eur. Court H.R., Vilvarajah and Others judgment of

30 October 1991, Series A no. 215, p. 34, para. 102). 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 the 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 (ibid., p. 34, para. 103). A mere possibility

of ill-treatment is not in itself sufficient (ibid., p. 37, para. 111).

The Commission first observes that the applicant failed to lodge,

in accordance with Austrian law, complaints against the refusal of

asylum with the Constitutional Court and with the Administrative Court.

The question, therefore, arises whether or not he has exhausted the

remedies available under Austrian law, as required under Article 26

(Art. 26) of the Convention. However, the Commission need not to

resolve this matter, as the applicant's complaints are anyway

inadmissible for the following reasons.

In the present case, the Commission finds that the applicant's

submissions, in particular as to his situation following his alleged

detention in 1983/84, do not contain any substantiation of his

allegations that he would risk persecution upon his return to Ethiopia.

The Commission accordingly cannot find that the applicant would be

exposed to a real risk for his life within the meaning of Article 2 or

(Art. 2) to a risk of being subjected to treatment contrary to Article

3 (Art. 3) of the Convention on his return to Ethiopia.

It follows that this part of the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

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

Convention about the proceedings before the Constitutional Court and

the Administrative Court.

The Commission recalls that the procedure followed by public

authorities to determine whether an alien should be allowed to stay in

a country, or should be expelled, does not involve the determination

of civil rights and obligations within the meaning of Article 6 para. 1

(Art. 6-1) of the Convention (cf., No. 13162/87, Dec. 9.11.87, D.R. 54

p. 211).

Accordingly, this part of the application is incompatible ratione

materiae with the provisions of the Convention, pursuant to Article 27

para. 2 (Art. 27-2).

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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