Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 25169/94

by Madjid MUSA

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 12 April 1996, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

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 15 July 1994 by

Madjid MUSA against Austria and registered on 16 September 1994 under

file No. 25169/94;

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

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Syrian citizen, born in 1970. He is presently

staying in Syria at an unknown address. In the proceedings before the

Commission he is represented by Mr. H. Blum, a lawyer practising in

Linz.

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

applicant may be summarised as follows.

A. Particular circumstances of the case

On 21 February 1993 the applicant arrived in Austria. On

22 February he filed an asylum request with the Federal Asylum Office

(Bundesasylamt).

On the same day he was heard by the Asylum Office. He stated that

he was of Kurdish origin and member of the Jazidi religious group and

for these reasons persecuted by the ruling BAATH-party. In 1989 he had

been detained by the police for four days because of his contacts with

the ISAKFS, a pro-kurdish political party. During his detention he had

been beaten by police officers. In March 1990 he had been detained

again for two days because he had taught the Kurdish language. In

October 1992 members of the ISAKFS had been arrested. He had left his

home for Damascus where he distributed political leaflets. He had been

informed that at his home the police was looking for him and went to

Afrin where he had hidden at a friend's place until 14 February 1993.

He then had gone to Turkey and from there to Austria. He further

stated that he had finished high school in Syria and had studied for

two years before leaving the country.

On 23 February 1993 the Asylum Office dismissed the applicant's

asylum request. It found that the applicant had merely invoked the

general situation of Kurds in Syria but had not shown the existence of

any relevant acts of persecution directed against himself. On two

occasions he had been detained for a few days and these arrests had

taken place a considerable time before he had decided to leave Syria.

Furthermore the applicant's accounts were nor entirely credible since

he had made contradictory statements in the course of his questioning.

The Asylum Office also decided that an appeal had no suspensive effect.

It further noted that the United Nations High Commissioner for Refugees

had been informed of the proceedings.

On 23 February 1993 the applicant was taken into detention with

a view to his expulsion (Schubhaft). On the same day the applicant

filed a request under Section 54 of the Aliens Act with the Linz

Federal Police Authority (Bundespolizeidirektion) requesting a

declaration that his expulsion to Syria was inadmissible. The Federal

Police Authority, after having heard the applicant, dismissed the

applicant's request on the same day. Referring to the applicant's

statements in the asylum proceedings and the decision of the Asylum

Office, it found that there were no serious grounds to assume that the

applicant would be subject to persecution if expelled to Syria.

On 1 March 1993 the Linz Federal Police Authority issued a

residence prohibition (Aufenthaltsverbot) against the applicant as it

found that after asylum had been refused his stay in Austria was

unlawful.

On 8 March 1993 the applicant, represented by counsel, appealed

against the Federal Asylum Office's decision of 23 February 1993. He

submitted that from the mere fact that he had not left the country

shortly after his arrests in 1989 and 1990 it could not be derived that

he did not risk persecution in Syria.

On 15 March 1993 the applicant appealed against the Federal

Police Authority's decision of 1 March 1993.

On 22 March 1993 the Upper Austria Public Security Authority

(Sicherheitsdirektion) dismissed the appeal against the Federal Police

Authority's decision of 23 February 1993.

On 3 May 1993 the applicant introduced a complaint with the

Constitutional Court (Verfassungsgerichtshof) against the Public

Security Authority's decision of 22 March 1993. He submitted that he

risked persecution if deported to Syria and relied on Article 3 of the

Convention.

On 25 June 1993 the Constitutional Court refused to deal with the

applicant's complaint for lack of prospect of success. On 30 August

1993 the applicant requested that his case be referred to the

Administrative Court (Verwaltungsgerichtshof). On 6 September 1993 the

Constitutional Court did so and on 18 October 1993 the applicant

supplemented his complaint to the Administrative Court.

On 15 December 1993 the Administrative Court rejected the

applicant's complaint. It noted that according to the undisputed

submissions of the responsible authority, the Linz Public Security

Authority, the applicant had been deported to Syria on 1 April 1993.

Thus the applicant, at the time he had introduced the complaint, could

no longer claim to have a genuine interest in having reviewed by the

Administrative Court the admissibility of his expulsion to Syria, since

the expulsion had already been carried out.

On 17 August 1994 the applicant complained to the Administrative

Court about the inactivity of the Federal Minister for the Interior

(Bundesminister für Inneres) in deciding on his appeal against the

Federal Asylum Office's decision of 23 February 1993.

On 14 December 1994 the Minister dismissed the applicant's

appeal. It found that the Asylum Office had acted correctly when it

had dismissed the applicant's asylum request. As regards the

applicant's arrest by the Syrian authorities in 1989 and 1990, the

Minister noted that the applicant had been released within a short

time. Furthermore these events occurred more than two years before he

left Syria and therefore were no longer relevant for assessing a

possible risk of persecution. As regards the applicant's membership

in the Jazidi religious group, the applicant had not substantiated that

any acts of persecution had occurred which were connected to his

membership in the religious group. Also the applicant's story was not

wholly credible because it contained contradictions. It was in

particular implausible that he had left his home in 1992 because the

police was looking for members of the ISAKFS and then had distributed

leaflets of a political content in Damascus, an action which

necessarily would attract the attention of the police.

On 30 January 1995 the applicant introduced a complaint to the

Administrative Court against the Minister's decision of 14 December

1994. On 6 February 1996 the Administrative Court dismissed the

compalaint.

B. Relevant domestic law

Section 54 para. 1 of the Aliens Act provides 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, would be in danger of being subjected to inhuman

treatment or punishment or to capital punishment in that State or that

his life or his security would be endangered on the grounds of his

race, religion, nationality or adherence to a social group or on the

grounds of his political opinions.

Such a request may be made during proceedings concerning the

issue of a deportation order or a residence ban. The alien has to be

informed in time of the possibility to make the request (Section 54

para. 2). An expulsion to the State indicated by the alien may not be

carried out as long as the decision relating to the request under

Section 54 has not become final (Section 54 para. 4).

COMPLAINTS

1. The applicant complains that the refusal of his request for a

declaration under Section 54 of the Aliens Act that his deportation to

Syria was inadmissible, violated his rights under Article 3 of the

Convention.

2. The applicant further complains that the refusal of the

Constitutional Court and the Administrative Court to deal with the

merits of his complaint in the proceedings under Section 54 of the

Aliens Act violated his rights under Article 13 of the Convention.

THE LAW

1. The applicant complains that the refusal of his request for a

declaration under Section 54 of the Aliens Act that his deportation to

Syria was inadmissible, violated his rights under Article 3

(Art. 3) of the Convention.

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 by a Contracting State

of an individual may give rise to an issue under Article 3

(Art. 3) of the Convention and hence engage the responsibility that

State under the Convention, where substantial grounds have been shown

for believing that the person concerned would face a real risk of being

subjected to treatment prohibited by the said Article 3 (Art. 3) in the

country to which he or she is to be expelled (see No. 12122/86, Dec.

16.10.86, D.R. 50 p. 268; Eur. Court H.R., Cruz Varas judgment of 20

March 1991, Series A no. 201, p. 28, paras. 69-70; Vilvarajah and

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

103). A mere possibility of ill-treatment is not in itself sufficient

(Vilvarajah and Others judgment, loc. cit., p. 37, para. 111). Since

the nature of the contracting States' responsibility under Article 3

(Art. 3) in cases of this kind lies in the act of exposing an

individual to the risk of ill-treatment, the existence of the risk must

be assessed primarily with reference to those facts which were known

or ought to have been known to the Contracting State at the time of the

expulsion (Eur. Court H.R., Cruz-Varas and Others judgment of 20 March

1991, Series A no. 201, p. 30, para. 76).

The Commission observes that the Austrian authorities, in

particular the Federal Asylum Office and the police authorities,

refused the applicant's asylum request and his request under Section

54 of the Aliens Act as they found that he had failed to substantiate

a risk of being persecuted in Syria upon his return.

Having regard to the applicant's submissions and on the basis of

the material in the file, the Commission finds that the applicant has

failed to show that his expulsion to Syria would expose him to a real

risk of being subjected to treatment contrary to Article 3 (Art. 3) of

the Convention. Consequently, also the refusal by the Austrian

authorities to acknowledge that such a risk existed cannot be regarded

to be in breach of that provision either.

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 further complains that the refusal of the

Constitutional Court and the Administrative Court to deal with the

merits of his complaint in the proceedings under Section 54 of the

Aliens Act violated his rights under Article 13 (Art. 13) of the

Convention.

Article 13 (Art. 13) of the Convention 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 recalls that Article 13 (Art. 13) of the

Convention requires a remedy in domestic law only in respect of

grievances which can be regarded as "arguable" in terms of the

Convention (Eur. Court H.R., Powell and Rayner judgment of 21 February

1990, Series A no. 172, p. 14, para. 31).

The Commission, having regard to the above findings, considers

that the applicant's submissions do not give rise to a prima facie

issue under Article 3 (Art. 3) of the Convention, and thus cannot be

considered to be an arguable claim. Consequently, Article 13

(Art. 13) of the Convention does not apply in respect of the

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

It follows that this part of the application is also 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.

Secretary to the First Chamber President of the First Chamber

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

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MUSA v. AUSTRIA

MUSA v. AUSTRIA

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