Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 25964/94

by Sharif Hussein AHMED

against Austria

The European Commission of Human Rights sitting in private on

2 March 1995, the following members being present:

MM. C.A. NØRGAARD, President

H. DANELIUS

C.L. ROZAKIS

G. JÖRUNDSSON

S. TRECHSEL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

Mr. F. MARTINEZ

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

D. SVÁBY

E. KONSTANTINOV

G. RESS

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 13 December 1994

by Sharif Hussein Ahmed against Austria and registered on

15 December 1994 under file No. 25964/94;

Having regard to the President's decision of 15 December 1994 to

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

the application;

Having regard to the observations submitted by the respondent

Government on 3 January 1995 and the observations in reply submitted

by the applicant, after an extension of the time-limit, on

1 February 1995;

Having deliberated;

Decides as follows:

THE FACTS

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

summarised as follows.

The applicant, born in 1963, is a national of Somalia. At the

time of lodging his application he was detained at the Graz 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

On 30 October 1990 the applicant went to Austria.

On 4 November 1990 the applicant applied for asylum.

Subsequently, on 11 November 1990, he was heard by the Lower Austria

Public Security Authority (Sicherheitsdirektion). He submitted in

particular that his uncle had been an active member of the United

Somali Congress (USC). His father and his brother, who had not been

members of the USC, but had supported his uncle's activities, had been

executed in May 1990. Since then, he himself and his whole family were

suspected of being members of the USC and of having participated in

rebellious activities. His car had been confiscated and he had been

beaten and injured. He had left Somalia for fear of being arrested and

executed.

On 19 April 1991 the Styria Public Security Authority

(Sicherheitsdirektion) dismissed the applicant's request. It found that

the applicant had failed to show that he was persecuted in his home

country.

On 30 July 1991 the Graz District Court (Bezirksgericht)

convicted the applicant of damage to property and sentenced him to

three weeks' imprisonment. The sentence was suspended.

On 15 May 1992 the Federal Ministry for the Interior

(Bundesministerium für Inneres), on the applicant's appeal, granted him

asylum. The Ministry referred in particular to his activities for an

opposition party and the notorious situation in his country of origin.

It found that there were reasonable grounds for believing that he would

be persecuted in case of his return to Somalia. Therefore, he had the

status of a refugee and was entitled to reside in Austria.

On 25 August 1993 the Graz Regional Court (Landesgericht)

convicted the applicant of attempted robbery and sentenced him to two

and a half years' imprisonment. The Court found that he had, on

30 March 1993, together with an accomplice hit a pedestrian in the face

and had attempted to take the wallet from his pocket. The sentence

became final on 7 March 1994.

On 15 July 1994 the Graz Federal Office for Asylum (Bundesasyl-

amt), referring to S. 5 para. 1 subpara. 3 of the Asylum Act (Asyl-

gesetz), withdrew the applicant's right to asylum because of his

conviction.

On 12 September 1994 the Ministry for the Interior dismissed the

applicant's appeal. The Ministry noted the applicant's submission that

he would be persecuted upon his return on the ground that he belonged

to General Aideed's clan. The Ministry referred to S. 5 para. 1

subpara. 3 of the Asylum Act in connection with Article 33 para. 2 of

the Geneva Convention relating to the Status of Refugees (Refugee

Convention), and stated that the right to asylum may be withdrawn if

a refugee is convicted, by a final sentence, of a particularly serious

crime and is, therefore, a danger to the community in the country of

asylum. It followed from S. 37 para. 4 of the Austrian Aliens Act, that

the Austrian legislator considered any crime punishable with more than

five years' imprisonment as a particularly serious crime within the

meaning of Article 33 para. 2 of the Refugee Convention. The applicant

had been convicted of attempted robbery, which was punishable with one

to ten years' imprisonment, and the sentence had become final. Thus,

the conditions for withdrawing his right to asylum were met.

On 24 October 1994 the applicant lodged a complaint with the

Administrative Court (Verwaltungsgerichtshof) and requested that this

complaint be granted suspensive effect. In the proceedings before the

Administrative Court the applicant is represented by Mr. Vacarescu.

These proceedings are still pending and the decision on the applicant's

request for suspensive effect has not yet been taken.

The applicant submitted in particular that attempted robbery was

not a particularly serious crime within the meaning of Article 33

para. 2 of the Refugee Convention. The wording suggested that only the

most serious crimes, such as manslaughter, armed robbery, drug dealing

or terrorist crimes, could lead to the withdrawal of asylum. Moreover,

the particular circumstances of the case had to be taken into account

and it had to be established that the convicted person would be a

danger to the community in the country of asylum. The applicant had

only been sentenced to two and a half years' imprisonment and there

were no reasons to believe that he would commit further serious crimes.

Finally, the applicant submitted that the Ministry had not weighed his

interest in remaining in Austria against the interest in withdrawing

his right to asylum.

On 14 November 1994 the Graz Federal Police Authority (Bundes-

polizeidirektion) imposed an unlimited residence ban (unbefristetes

Aufenthaltsverbot) based on S. 18 para. 1 and para. 2 subpara. 1 of the

Aliens Act (Fremdengesetz) on the applicant. It noted that the

applicant had been convicted of attempted robbery. Given the serious-

ness of the crime, his residence would disturb public order and

security. Further, the Police Authority ordered that the applicant be

detained with a view to his expulsion (Schubhaft) as soon as his prison

sentence was terminated.

On 22 November 1994 the Graz Federal Police Authority requested

a "laissez-passer" for the applicant from the Somalian embassy. The

request stated explicitly that the "laissez-passer" was needed for the

purpose of returning the applicant to Somalia.

On 30 November 1994 the applicant informed the Graz Federal

Police Authority that he had nominated Mr. Vacarescu as his counsel,

and requested, in accordance with S. 54 of the Aliens Act, that a

declaratory decision be taken that his expulsion to Somalia would be

inadmissible as being contrary to Article 3 of the Convention, or for

exposing him to persecution within the meaning of the Geneva Convention

relating to the Status of Refugees. He referred in particular to the

results of the asylum proceedings. The proceedings under S. 54 of the

Aliens Act are still pending before the Graz Federal Police Authority.

On the same day the applicant lodged an appeal against the

residence ban of 14 November 1994.

On 10 December 1994 the Styria Public Security Authority

dismissed the applicant's appeal. However, it decided that the

residence ban be only valid for ten years.

The Public Security Authority found that the issuing of the

residence ban was, given the applicant's conviction for attempted

robbery, in accordance with S. 18 para. 1 and para. 2 subpara. 1 of the

Aliens Act. It further noted that the applicant, following the

withdrawal of his right to asylum by decision of 12 September 1994, did

not have the right to reside in Austria any more. The Public Security

Authority also found that the interest in issuing a residence ban

outweighed the applicant's interest in staying in Austria, as he had

only spent four years in Austria and had not been integrated.

Furthermore, he had no family ties in Austria.

On 14 December 1994 the applicant, upon his conditional release

from prison, was taken into detention with a view to his expulsion at

the Graz Police Prison. He has meanwhile been released.

B. Relevant domestic law

1. Asylum Act

S. 5 para. 1 subpara. 3 of the Asylum Act (Asylgesetz) provides

that a refugee loses the right to asylum, inter alia, if the conditions

set out in Article 33 para. 2 of the Geneva Convention relating to the

Status of Refugees are met. This provision states that the benefit of

asylum protection may be refused if there are reasonable grounds for

believing that the purported refugee presents a danger to the host

community, as shown, for example, by that person's conviction for a

serious crime.

2. Aliens Act

According to S. 18 para. 1 of the Aliens Act (Fremdengesetz), a

residence ban may be issued against an alien if there are reasonable

grounds for believing that his stay will disturb public order or

security (subpara. 1) or that it will be contrary to the public

interest, as provided for in Article 8 para. 2 of the European

Convention for the Protection of Human Rights and Fundamental Freedoms

(subpara. 2). Paragraph 2 of S. 18 illustrates cases in which

"reasonable grounds" within the meaning of para. 1 are given, e.g. if

an alien has been sentenced to more than three months' imprisonment by

an Austrian court, and this judgment has become legally effective

(subpara. 1).

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 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 Geneva Convention

relating to the Status of Refugees, 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 the grounds

of his race, religion, nationality or adherence to a social group or

on the grounds of his political opinions.

According to S. 37 para. 4 the expulsion of an alien to a State,

in which he would be endangered within the meaning of paragraph 2, may

only be carried out if he is, on serious grounds, a threat to the

security of the Republic of Austria or if, after a conviction for a

crime which is punishable with more than five years' imprisonment, he

presents a danger to the community (Article 33 para. 2 of the Geneva

Convention relating to the Status of Refugees).

S. 37 para. 5 states that the asylum authority (in cases under

S. 5 para. 1 subpara. 3 of the Asylum Act), or in other cases, the

Public Security Authority, have to take a decision as to whether the

conditions under the aforementioned paragraph 4 are met.

S. 37 para. 6 provides that 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, inter alia, be

made during proceedings concerning the issue of a residence ban and

that the alien has to be informed in time of the possibility to make

the request.

According to S. 54 para. 3, the decision on an appeal against a

ruling that the expulsion to a particular State is admissible has to

be taken within a week.

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.

COMPLAINTS

The applicant complains under Article 3 of the Convention that

his expulsion to Somalia would expose him to a serious risk of being

arrested, tortured or killed. He refers in particular to the decision

by the Austrian Ministry for the Interior, which granted him asylum in

1992 on the ground that he was persecuted for his alleged activities

for the USC.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 13 December 1994 and registered

on 15 December 1994.

On 15 December 1994 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, 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 3 January

1995. The observations in reply by the applicant were submitted, after

an extension of the time-limit, on 1 February 1995.

THE LAW

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

Convention that his expulsion to Somalia would expose him to a serious

risk of being arrested, tortured or killed.

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."

2. The Government submit that the applicant has failed to exhaust

domestic remedies, pursuant to Article 26 (Art. 26) of the Convention.

They point out in particular that the applicant, on 30 November 1994,

requested the Graz Federal Police Authority, under S. 54 of the

Austrian Aliens Act, to give a ruling that his expulsion to Somalia was

inadmissible, and that these proceedings are still pending. According

to S. 54 para. 4 of the Aliens Act, the applicant's expulsion may not

take place as long as the decision on his request has not become final.

Further, the Government submit that the Federal Office for

Asylum, under S. 37 para. 5 of the Aliens Act, has to take a formal

decision on whether the applicant's expulsion to Somalia, in spite of

his life or freedom being threatened on the grounds mentioned in

Article 33 para. 1 of the Geneva Convention relating to the Status of

Refugees, may nevertheless be admissible as one of the exceptions of

Article 33 para. 2 of the said Convention apply to him. They argue that

the Federal Office for Asylum has not so far delivered any such

decision, and that the applicant's expulsion would, thus, be

inadmissible under S. 37 paras. 2 and 5 of the Aliens Act.

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 as regards the

proceedings under S. 54 of the Aliens Act. When he introduced his

application, he submitted that the competent authority, when issuing

the residence ban against him, did not inform him of his right to

request a declaratory decision on the question whether his expulsion

to Somalia would be admissible. He feared that his expulsion might take

place without awaiting the outcome of the proceedings under S. 54 of

the Aliens Act, as soon as a "laissez-passer" would be issued by the

Somalian embassy for him.

In his observations the applicant further submits that the

authorities would have been obliged to assess of their own motion

whether the residence ban against him could be enforced. However, they

have detained him with a view to his expulsion without having done so.

He argues that the authorities, given their conduct so far, are

determined to expel him and that the proceedings under S. 54 of the

Aliens Act, which are usually terminated within a very short time, are

a mere formality with no prospects of success.

As regards S. 37 para. 2 and para. 5 of the Aliens Act, the

applicant submits that the Federal Office for Asylum would have been

obliged to take a formal decision on the admissibility of his return

to Somalia in the course of the proceedings relating to the withdrawal

of his right to asylum. However, it did not take such a decision.

The Commission recalls that exhaustion of domestic remedies under

Article 26 (Art. 26) of the Convention requires the use of those

remedies that relate to the breaches alleged, and that are available

and sufficient (No. 11681/85, Dec. 11.12.87, D.R. 54 p. 101).

In the present case proceedings concerning the withdrawal of the

applicant's right to asylum were conducted by the Federal Office for

Asylum and the Ministry for the Interior, which took the final decision

on 12 September 1994. It is not contested between the parties that

these authorities did not take any formal decision relating to the

question whether the applicant's expulsion to Somalia was admissible,

as required under S. 37 paras. 4 and 5 of the Austrian Aliens Act. It

appears that this decision has to be taken by the competent authorities

of their own motion. The Commission therefore finds that it cannot be

regarded as an effective remedy available to the applicant.

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

Commission notes that according to paragraph 4 of this provision a

person may not be expelled before the decision becomes final. Thus, the

Commission is satisfied that the proceedings under S. 54 of the

Austrian Aliens Act may, in principle, provide an effective remedy

against a foreigner's expulsion.

However, the Commission notes that the applicant, when

introducing his application, alleged that the Austrian authorities had

not duly informed him of his right to request a decision under S. 54

of the Aliens Act, and that they might expel him without awaiting the

result of these proceedings. The respondent Government, in their

observations, have not commented upon the applicant's allegations. In

particular they have not clarified whether he, who was not represented

by counsel before the Graz Federal Police Authority in the proceedings

concerning the residence ban against him, was duly informed of his

right to file a request under S. 54 of the Aliens Act.

The Commission also notes the applicant's submission that the

conduct of the authorities shows that they are determined to expel him

and that they might take their decision in a very short time. In this

connection, the Commission observes that the Graz Federal Police

Authority, i.e. the authority competent to deal with the applicant's

request under S. 54 of the Aliens Act, had already ordered the

applicant's detention with a view to his expulsion on 14 November 1994,

and had requested a "laissez-passer" for the applicant from the

Somalian embassy on 22 November 1994, expressly for the purpose of

returning him to Somalia, before the proceedings concerning the

residence ban against him were terminated.

In these circumstances, the Commission finds that the applicant

could not and still cannot reasonably be expected to await the outcome

of the proceedings under S. 54 of the Aliens Act, particularly as his

expulsion to Somalia might allegedly entail serious and irreparable

damage.

In these circumstances, the Commission concludes that the

applicant has satisfied the requirement under Article 26 (Art. 26) of

the Convention to exhaust domestic remedies.

3. As to the merits of the applicant's claim, the Government

consider that it is unfounded. They submit that it is not clear from

the Convention organs' case-law that an expulsion to a country in a

state of civil war is to be regarded as a violation of Article 3

(Art. 3) of the Convention.

The applicant submits that his return to Somalia would expose him

to a serious risk of being arrested, tortured or executed. In this

respect he particularly refers to the decision of the Ministry for the

Interior granting him asylum in 1992 on the ground that he was

persecuted for his alleged activities for the United Somali Congress.

The Commission considers, in the light of the parties'

submissions, that the case raises serious issues of law and fact under

Article 3 (Art. 3) of the Convention, the determination of which should

depend on an examination of the merits of the application as a whole.

The Commission concludes, therefore, that the application is not

manifestly ill-founded, within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention. No other grounds for declaring it

inadmissible have been established.

For these reasons, the Commission unanimously

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

merits of the case.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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AHMED v. AUSTRIA

AHMED v. AUSTRIA

LEXI