Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 26998/95

by Adeyemi ADEGBIE

against Austria

The European Commission of Human Rights sitting in private on

9 April 1996, the following members being present:

MM. S. TRECHSEL, President

H. DANELIUS

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

G. RESS

A. PERENIC

P. LORENZEN

K. HERNDL

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 27 December 1994

by Adeyemi ADEGBIE against Austria and registered on 7 April 1995 under

file No. 26998/95;

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 23 June 1995 and the observations in reply submitted by

the applicant on 23 August 1995;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, born in 1964, is a national of Nigeria. He was

detained with a view to his expulsion on 10 December 1994 and is

currently held at the Franz Josef Hospital in Vienna. Before the

Commission he is represented by Mr. R. Kohlhofer, a lawyer practising

in Vienna.

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

parties, may be summarised as follows.

The applicant left Nigeria following a failed coup d'état in

1985, which had allegedly been planned by his uncle. He submits that

his uncle and his supporters were executed and that he himself was

wanted by the Nigerian authorities. He returned once to Nigeria in

1989. Upon being warned by his mother that he was still not safe there,

he left again.

In September 1986 the applicant went to Austria. He did not

apply for asylum. In 1990 he married an Austrian national, who is a

civil servant by profession.

In 1993 the Vienna Federal Police Authority (Bundespolizei-

direktion) informed the applicant that it planned to impose a residence

prohibition on him. The applicant submits that as a consequence he

suffered a serious mental disturbance and that he had to spend some

months in a psychiatric hospital. He also requested the Federal Police

Authority to refrain from issuing a residence prohibition against him

on the ground of his illness.

On 25 November 1993 the Vienna Federal Police Authority imposed

a ten years' residence prohibition on the applicant.

On 10 February 1994 the Vienna Public Security Authority

(Sicherheitsdirektion) dismissed the applicant's appeal.

The Authority referred to S. 18 para. 1 and para. 2 (1) and (2)

of the Aliens Act, which provide that a residence prohibition has to

be issued against an alien, inter alia, if he has been convicted more

than once for similar offences by a domestic court, or if a fine has

been imposed on him more than once for an offence under the Aliens Act

by an administrative authority. The Public Security Authority found

that the Vienna District Criminal Court (Strafbezirksgericht), on

7 June 1988, had convicted the applicant of assault and had imposed a

fine. Further, on 15 February 1991 and on 23 February 1993 the same

Court had convicted him of possession of drugs and had imposed fines.

Moreover, in 1989 and 1993, the Vienna Federal Police Authority had

imposed fines for illegal residence on him. Thus, the requirements of

S. 18 of the Aliens Act were met.

Further, the Vienna Public Security Authority, referring to the

applicant's marriage with an Austrian national, found that the

residence prohibition constituted an interference with the applicant's

right to respect for his private and family life. However, it was

necessary for the aims set out in Article 8 para. 2 of the Convention,

namely for the prevention of disorder and the protection of health.

Given that the applicant had been convicted twice under the Drug

Offences Act (Suchtgiftgesetz) and had, moreover, been fined twice for

illegal residence, the public interest in issuing the residence

prohibition outweighed his interest in staying in Austria.

On 13 June 1994 the Constitutional Court (Verfassungsgerichtshof)

dismissed the applicant's complaint as lacking sufficient prospects of

success.

Subsequently, the applicant lodged a complaint with the

Administrative Court (Verwaltungsgerichtshof). He requested that the

decisions relating to the residence prohibition against him be quashed

for errors of law and for defects in the proceedings.

As regards errors of law, he submitted that the contested

decisions violated his right to respect for his private and family

life. In particular, he complained that the competent authorities had

failed to duly weigh his interest in staying in Austria against the

public interest of issuing a residence prohibition against him.

Although he had been convicted once for assault and twice for

possession of drugs, the amounts of the fines imposed, AS 3,000, 12,000

and 18,000 respectively, showed that all three convictions had

concerned minor offences. Moreover, his wife, who was an Austrian

civil servant, could not be expected to follow him to Nigeria.

As regards defects in the proceedings, the applicant submitted

that the competent authorities had not heard his wife despite his

requests, which were inter alia aimed at showing that his wife could

not be expected to follow him to Nigeria, and that he was well

integrated in his wife's family. Thus, they had failed to establish

the relevant facts and had not been in a position to carry out a true

assessment of his family situation.

On 3 November 1994 the Administrative Court dismissed the

applicant's complaint. It found that the contested residence

prohibition served aims set out in Article 8 para. 2 of the Convention,

namely the prevention of disorder and crime and the protection of

health. Further, the Public Security Authority had duly weighed the

interests involved. Given the particular dangerousness of drug

offences, the public interest weighed more heavity than the private

interest, even in cases where an alien was completely integrated.

Thus, the authority did not have to take evidence as requested by the

applicant.

On 10 December 1994 the applicant was arrested and detained with

a view to his expulsion. The applicant submits that he informed the

competent authority of his mental illness and stated that the detention

would endanger his life. A week after his arrest the applicant started

a hunger strike. He submits that he was thereupon put in solitary

confinement in a dark cell and that his medicine, which he needed in

the context of his mental illness, was not handed out to him, on the

ground that it could not be taken without food. On 12 January 1995 he

attempted to commit suicide. He was taken to hospital but later

returned to the detention centre. On 2 February 1995 he made a further

attempt to commit suicide. Since then he has been detained at the

Franz Josef Hospital in Vienna.

COMPLAINTS

1. The applicant complains under Article 8 of the Convention that

the residence prohibition against him violates his right to respect for

his family life.

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

his expulsion to Nigeria would expose him to a risk of being tortured

or of being subjected to inhuman or degrading treatment.

3. Further, the applicant submits that the conditions of his

detention, prior to his transfer to hospital, constituted inhuman

treatment within the meaning of Article 3 of the Convention. He submits

in particular that he was held in solitary confinement in a dark cell

after he started his hunger strike, that he was refused the medicine

he needed as treatment for his mental illness and that the suicide risk

of his case was not taken seriously.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 27 December 1994 and registered

on 7 April 1994.

On 13 April 1995 the Commission decided to communicate the

application to the respondent Government, pursuant to Rule 48

para. 2 (b) of the Rules of Procedure.

The Government's written observations were submitted on

23 June 1995. The applicant replied on 23 August 1995.

THE LAW

1. The applicant complains under Article 8 (Art. 8) of the

Convention that the residence prohibition against him violates his

right to respect for his family life.

Article 8 (Art. 8) of the Convention reads as follows:

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

family life, his home and his correspondence.

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."

The Government submit that the residence prohibition imposed on

the applicant did not interfere with his right to respect for his

family life. Article 8 (Art. 8) of the Convention did not confer on

married couples a right of choice of the place of their residence.

Therefore, the applicant's wife could be expected to follow him to

Nigeria. But even assuming that there was an interference with the

applicant's right to respect for his family life, such interference was

justified under paragraph 2 of Article 8 (Art. 8-2). The residence

prohibition imposed on the applicant was in accordance with the law and

pursued a legitimate aim, namely the maintenance of public safety and

the prevention of disorder and crime. The applicant had twice been

convicted of possession of drugs and drug crimes posed a particular

threat to public safety. The residence prohibition was also necessary

in a democratic society, as the Austrian authorities could reasonably

conclude that the applicant's further stay in Austria would run counter

to the above-mentioned public interest. The interference thus did not

exceed the margin of appreciation afforded to the Contracting States.

This is contested by the applicant. He submits that his wife,

an Austrian civil servant, could not be expected to follow him to

Nigeria if he were expelled, since in this case she would have to

change radically her social environment and to give up her employment

as a civil servant. Furthermore, the residence prohibition was not

necessary in a democratic society. The competent authorities did not

duly take his interest in staying in Austria into account in their view

in case of particularly dangerous crimes like drug offences the private

interest of the alien was regularly outweighed by the public interest.

However, he had only been convicted of using drugs and the Austrian

authorities should therefore have made a distinction between petty

offences like the mere consumption of drugs and serious offences like

selling drugs.

The Commission finds that this complaint raises serious questions

of fact and law which are of such complexity that their determination

should depend on an examination of the merits. This aspect of the case

cannot, therefore, be regarded as being manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention, and

no other ground for declaring it inadmissible has been established.

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

Convention that his expulsion to Nigeria would expose him to a risk of

being tortured or of being subjected to inhuman or degrading treatment.

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 of 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).

However, 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 Nigeria would expose

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

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.

3. Lastly, the applicant complains under Article 3 (Art. 3) that the

conditions of his detention, prior to his transfer to hospital, were

inhuman.

However, the Commission is not required to decide whether or not

the facts alleged by the applicant disclose any appearance of a

violation of Article 3 (Art. 3) of the Convention as, under Article 26

(Art. 26) of the Convention, it may only deal with a matter after all

domestic remedies have been exhausted according to the generally

recognised rules of international law.

The Commission recalls that with regard to the allegation of

treatment contrary to Article 3 (Art. 3) of the Convention, a complaint

to the Independent Administrative Panel (Unabhängiger Verwaltungssenat)

concerning the exercise of direct administrative authority and coercion

constitutes a sufficient and effective remedy for the purpose of

Article 26 (Art. 26) of the Convention (see No. 18896/91, Dec.

20.10.93, unpublished; No. 23829/94, Dec. 17.5.95, unpublished).

The Commission notes, however, that the applicant did not lodge

a complaint with the Independent Administrative Panel or made use of

any other existing domestic remedy.

It follows that in this respect the applicant did not comply with

the requirement of exhaustion of domestic remedies stipulated by

Article 26 (Art. 26) of the Convention.

This part of the application must, therefore, be rejected under

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

For these reasons, the Commission,

by a majority,

DECLARES ADMISSIBLE, without prejudging the merits, the

applicant's complaint that the residence prohibition against him

violates his right to respect for his family life;

unanimously,

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (S. TRECHSEL)

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ADEGBIE v. AUSTRIA

ADEGBIE v. AUSTRIA

LEXI