Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 25664/94

by Funsu MBEMBA

against Austria

The European Commission of Human Rights sitting in private on

19 January 1995, the following members being present:

MM. C.A. NØRGAARD, President

H. DANELIUS

C.L. ROZAKIS

E. BUSUTTIL

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 12 November 1994

by Funsu Mbemba against Austria and registered on 14 November 1994

under file No. 25664/94;

Having regard to :

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

the Commission;

- the observations submitted by the respondent Government on

30 November 1994 as well as their further observations submitted

on 2 January 1995 and the observations in reply submitted by the

applicant on 6 December 1994 and 10 January 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 1934, is a Zairese national. When lodging

his application, he was detained at the Vienna Police Prison, with a

view to his expulsion to Zaire. He has meanwhile been released. In

the proceedings before the Commission he is represented by

Mr. G. Liedermann, a lawyer practising in Vienna.

A. Particular circumstances of the case

In May 1990, the applicant went to Vienna as the private

secretary of the Zairese ambassador.

In 1992 the applicant filed a request for asylum. According to

the applicant this request was, on 6 May 1992, submitted to the Vienna

Police Directorate, which was at that time competent to deal with it,

and was subsequently, after a change in law, transmitted to the Federal

Office for Asylum (Bundesasylamt). According to the Government, the

applicant filed his request for asylum on 24 September 1992.

On 24 September and on 1 October 1992, the applicant was heard

by the Federal Office for Asylum. He submitted in particular that,

despite his work at the embassy, he held a critical view of the Zairese

regime. In December 1991, when he was ordered to go on a mission to

Zaire, another employee of the embassy leaked a copy of a secret telex

to him, which had been sent by the Zairese secret service to the

ambassador, and mentioned him as a subversive element. Thereupon, he

refused to go to Zaire and was dismissed on 2 January 1992. One month

later, the ambassador reinstated him, but did not pay him any more.

In June 1992 he obtained a copy of another secret telex to the

ambassador, having mainly the same contents as the first one. He was

still formally employed by the embassy, but had been told that he need

not come to work any more and had recently been refused entry to the

building. The applicant stated that he would be able to submit the

above-mentioned copies of the secret telexes.

The applicant expressed his fear of being killed in case he had

to return to Zaire, as he was known to the secret service as a critic

of the regime. Moreover, he had been suspected of being the author of

leaflets, which had been distributed in Vienna, and which criticised

Mobutu's regime. His wife, who had returned to Zaire in November 1991,

had been refused permission to travel back to Austria and her passport

had been taken. He had been informed that she had fled to the Congo.

He had obtained a new passport for her at the embassy, which he will

send to her as soon as he has her address.

On 6 October 1992 the Federal Office for Asylum rejected the

applicant's request. It found that the applicant, who was still an

employee of the Zairese embassy, had not been subject to any specific

measures of persecution. The mere fact that he had a critical view of

the Zairese regime did not suffice for recognising him as a refugee.

On 22 October 1992 the applicant filed an appeal with the Federal

Ministry for the Interior (Bundesministerium für Inneres). He

submitted in particular that he was not only a critic of the regime,

but a member of Prime Minister Tshisekedi's opposition party. The

officer of the security service, present at the embassy, had reported

him as such to the Zairese authorities. He had stopped working at the

embassy in September. Before that, his salary had been blocked in

order to force him to return home, where he would risk persecution by

the secret service or the political police.

On 7 May 1993 the applicant had submitted a number of documents

in support of his appeal. They included the following:

- a personal letter of 23 April 1993 from the First Secretary of

the Zairese embassy in Paris (addressing the applicant as "Dear

brother" and transmitting a secret message to him);

- a telefax of 10 April 1993, allegedly sent with the above

letter, entitled "Transmis de Présidence", addressed to several

Zairese embassies in Europe, including the one in Vienna, calling

for the repatriation or, if not possible, for the taking of

"radical and urgent measures" against a number of persons,

including the applicant, and stating that the persons listed were

dangerous, subversive elements;

- a summons dated 14 April 1993 to appear before the Zairese

immigration authorities;

- a letter from the Secretary General of the Union pour la

Démocratie et le Progrès Social (UDPS) in Kinshasa of 10 January

1993 addressed to the Zairese Socialist Party in Vienna, for the

attention of its president, Mr. Ngongo, informing the latter that

the applicant was an active member of the UDPS and asking him to

intervene in favour of the applicant before the Austrian

authorities.

On 12 May 1993 the Federal Ministry for the Interior dismissed

the applicant's appeal. The Ministry found that the applicant had

worked at the Zairese embassy in Vienna, even after he had refused to

go on a mission to his home country. It concluded that the ambassador

did not consider the applicant's criticism of the regime as

significant. Therefore, there was no reason to assume that he would

be persecuted upon his return to Zaire. Moreover, the proceedings had

not shown that he had voiced his criticisms publicly and thereby drawn

the authorities' attention to himself. His submissions, that his

wife's passport was taken away from her, upon her return to Zaire, were

not credible, as he had apparently been able to obtain a new passport

for her at the embassy.

As regards the documents submitted by the applicant, the Ministry

found that they did not support the allegation that he would be subject

to prosecution in Zaire, as it was unclear how he had obtained them.

Moreover, the wording of the letter of 23 April 1993 from the Zairese

embassy in Paris indicated that it was not an official document but a

forgery. The summons of 14 April 1993 to appear before the Zairese

immigration authorities did not suffice to establish his status as a

refugee.

Subsequently, the applicant, now represented by counsel, lodged

a complaint with the Administrative Court (Verwaltungsgerichtshof).

On 24 February 1994 the Court, on the applicant's request, granted the

complaint suspensive effect.

Meanwhile, on 8 January 1994 the Vienna Police Directorate

(Bundespolizeidirektion) issued a residence ban (Aufenthaltsverbot),

valid for five years, against the applicant on the ground that he was

illegally resident in Austria since his request for asylum had been

rejected at second instance, and that he did not possess the necessary

means for his maintenance.

On 27 January 1994 the Vienna Police Directorate, on the

applicant's request of 8 January 1994, rendered a declaratory decision

under S. 54 of the Aliens Act (Fremdengesetz). Referring to the

results of the asylum proceedings, the Police Directorate found that

the applicant's expulsion to Zaire would not be contrary to S. 37 of

the Aliens Act. This provision prohibits the expulsion of an alien to

a State, inter alia, if there are firm reasons to believe that, in that

State, he would be subject to inhuman treatment or punishment or

capital punishment, or that he would be persecuted within the meaning

of the Geneva Convention on the Status of Refugees.

According to the applicant, this decision was not served on him.

However, his request for a transfer of jurisdiction (Devolutionsantrag)

was rejected by the Vienna Security Directorate on 8 November 1994.

It found that the decision of 27 January 1994 by the Vienna Police

Directorate had been duly deposited at the competent post office and

that it had apparently been collected by the applicant. The applicant

had not duly notified the authority that he had nominated another

person to receive service.

On 19 May 1994 the Vienna Security Directorate (Sicherheits-

direktion) dismissed the applicant's appeal against the residence ban

of 8 January 1994, as being lodged out of time.

On 31 May 1994 the Vienna Police Directorate ordered the

applicant's detention with a view to his expulsion (Schubhaft). It

found that the residence ban against him had become enforceable on

27 May 1994 and that he had not complied with his obligation to leave

Austria immediately.

On 4 July 1994 the applicant was arrested and taken into

detention at the Vienna Police Prison, with a view to his expulsion.

On 8 July 1994 the applicant filed a request for a declaratory

decision under S. 37 of the Aliens Act that his expulsion to Zaire

would expose him to a risk of being killed or sentenced to death, and

a request for a stay in his expulsion (Abschiebungsaufschub) on this

ground.

In support of his request, the applicant, apart from the

documents he had already submitted in the asylum proceedings, submitted

a number of new documents. These included inter alia:

- two summonses to appear before the Zairese Civil Guard in

Kinshasa on 11 January 1994 and on 17 February 1994,

respectively, stating that he will be informed on the spot

about the reasons for summoning him ("motif: vous sera

communiqué sur place");

- an arrest warrant (mandat d'amener) against the applicant

from the Zairese Civil Guard dated 15 March 1994, on the

suspicion of distributing subversive writings and of

provoking civil disobedience ("Distribution tracts

subversifs, Provocation à la désobéissance civile");

- a search warrant from the Civil Guard dated 10 July 1994;

- a letter, dated Kinshasa 11 July 1994, from the First

Secretary of the UDPS and addressed to the President of the

Zairese Socialist Party in Vienna, Mr. Ngongo. The author

states that he has been informed about the applicant's

arrest by the international secretariat of the UDPS in

Brussels. He further states that he encloses documents,

which show that the applicant is persecuted by the

political police, and asks Mr. Ngongo to transmit these

documents to the Austrian authorities.

On 14 July 1994 the Vienna Independent Administrative Senate

(Unabhängiger Verwaltungssenat) dismissed the applicant's complaint of

11 July 1994, concerning the lawfulness of his detention. It found

that the applicant was entitled to stay in Austria until the

termination of the Administrative Court proceedings, on the ground that

this court, on 24 February 1994, had granted his complaint in the

asylum proceedings suspensive effect. However, such a right to

temporary residence did not prevent the authorities from issuing a

residence ban, which would become enforceable as soon as the temporary

right to residence ended. Nor did it prevent them from taking the

applicant into detention with a view to his expulsion, which in the

present case served the purpose of securing his expulsion and was

necessary as he did not have the means for his maintenance.

Subsequently, the applicant filed further complaints relating to the

lawfulness of his detention with a view to his expulsion on 21 July,

2 August and 14 September 1994, which were dismissed by the Vienna

Independent Administrative Senate. The latest of these decisions was

issued on 23 September 1994.

On 19 October 1994 the Administrative Court, referring to the

Constitutional Court's judgment of 1 July 1994 (which had found that

the relevant provision of the Asylum Act, limiting the scope of review

of the Ministry of the Interior and the Administrative Court in the

appeal proceedings, was unconstitutional) quashed the Ministry's

decision of 12 May 1993. The applicant's asylum proceedings are now

pending again before the Ministry of the Interior.

On 4 November 1994 the Zairese embassy in Brussels, at the

Austrian authorities' request, issued a certificate confirming that the

applicant would be allowed entry into Zaire (Heimreisezertifikat).

On 7 November 1994 the Vienna Police Directorate rejected the

applicant's request of 8 July 1994 to stay his expulsion. It

considered that it had already found in its decision of 27 January 1994

that the applicant's expulsion would not be contrary to S. 37 of the

Aliens Act. As regards the documents submitted by the applicant, it

found that the letter of 23 April 1993 of the Zairese embassy in Paris

was not worded like an official document and appeared to be a forgery.

The same had to be assumed as regards the telex entitled "Transmis de

Présidence", which was allegedly transmitted to the applicant with the

said letter. As regards the documents which had allegedly been

transmitted by Mr. Ngongo, the President of the Zairese Socialist

Party, namely the two summonses to appear before the Civil Guard, the

arrest warrant and the search warrant, their credibility was also open

to doubt. It had to be assumed that the Zairese authorities knew that

the applicant was resident abroad. Thus, it was inexplicable why they

should try to summon him to Kinshasa. Moreover, the Police Directorate

considered that the documents appeared to be for the internal use of

the police and that the applicant had failed to give a satisfactory

explanation as to how he had obtained them.

On 16 November 1994 the applicant was released.

On 21 and 25 November 1994 the applicant was heard by the Vienna

Office of the United Nations High Commissioner for Refugees.

On 24 November 1994 the Ministry for the Interior requested the

Federal Office for Asylum to conduct a further hearing with the

applicant, relating to his request for asylum. It added a list of

forty-six questions which should be put to the applicant. They

concerned in particular the following issues: what were his position

and duties at the embassy; what exactly were his political activities;

who had warned him not to return to Zaire and how had he obtained the

secret telexes; how had he obtained the letter of 23 April 1993 by the

First Secretary of the Zairese embassy in Paris; by whom would he be

persecuted if returned to Zaire? The Ministry also pointed out that

the applicant was to be given the possibility to make additional

submissions in view of his appeal.

On 28 November 1994, the Federal Office for Asylum heard the

applicant. The hearing, which followed the catalogue of questions

prepared by the Ministry for the Interior, was continued on 1 and

5 December 1994.

The applicant submitted in particular that he had been the

private secretary of ambassador B.. His duties included the typing of

secret reports which the ambassador sent to the President or to the

secret service and the filing of papers, including confidential

messages. Further, the applicant stated that he had been ambassador

B.'s secretary since 1972 and had been a member, though not an active

one, of the MPR (Mouvement Populaire de la Révolution). He noted that

he would not have obtained his job otherwise, and that most of today's

opposition leaders had once been members of the MPR. The UDPS had been

founded in 1985 and he had started to pass on information to them when

he worked at the Zairese embassy in France (1988-1990). He gave secret

documents to the cook of the embassy, who transmitted them to members

of the UDPS. He himself never contacted UDPS members personally and

never went to UDPS meetings as he was more rigorously controlled by the

secret service. The applicant submitted that he was persecuted by

President Mobutu's secret service. He considered that he would be

arrested and tortured or that he might "disappear" if returned to

Zaire.

As regards the secret telexes the applicant submitted that L.,

the employee handling the telex machine, had, when he had told him that

he was to be sent to Zaire, given him a copy of the telex of

21 December 1991. L. had also given him a copy of the telex of 14 May

1992. He did not know of L.'s present whereabouts, because as far as

he knew the Zairese embassy in Vienna had been closed. As regards the

letter of 23 April 1993, he submitted that it was a private letter

which had been sent to his private address.

On 12 December 1994 the applicant made additional submissions in

view of his appeal. He submitted inter alia that the Ministry for the

Interior, in the first set of proceedings, had, without hearing him on

this point, dismissed the credibility of the documents submitted by

him.

B. Relevant domestic law

S. 37 of the Aliens Act (Fremdengesetz) 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. Paragraph 2 refers

to Article 33 of the Geneva Convention on the Status of Refugees, and

states 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

opinion. Paragraph 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 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, is endangered within the meaning of S. 37 paragraphs

1 or 2. According to paragraph 2, such a request may, inter alia, be

made during proceedings concerning the issue of a residence ban. The

alien has to be informed promptly of the possibility to make the

request.

COMPLAINTS

1. The applicant complains under Article 3 of the Convention about

the Austrian authorities' decision to expel him to Zaire. He submits

in particular that he would face arrest, torture or even being killed

on the ground that he used his position in the Zairese embassy to pass

on information to the UDPS, an opposition party, of which he is a

member.

2. In his observations of 6 December 1994 and of 10 January 1995 the

applicant further complains that his detention with a view to his

expulsion to Zaire was contrary to Article 3 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 12 November 1994 and registered

on 14 November 1994.

On 14 November 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 admissibility and merits.

On 30 November 1994 the Government submitted their observations,

to which the applicant replied on 6 December 1994.

On 9 December 1994 the Commission decided, pursuant to Rule 50

(a) of the Rules of Procedure, to invite the respondent Government to

submit further observations on the admissibility and merits of the

application, and to prolong the application of Rule 36 of its Rules of

Procedure.

On 2 January 1995 the Government submitted their further

observations, to which the applicant replied on 10 January 1995.

THE LAW

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

Convention about the Austrian authorities' decision to expel him to

Zaire.

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."

a. Preliminary questions under Articles 25 and 26

(Art. 25, 26) of the Convention

The Government submit that, on 16 November 1994, following the

indication under Rule 36 of the Commission's Rules of Procedure, the

applicant was released from detention. They refer in particular to

S. 37 para. 6 of the Austrian Aliens Act, which provides that an

expulsion may not be carried out as long as it would be contrary to an

interim measure taken by the European Commission of Human Rights.

Thus, the applicant's expulsion is not imminent any more and he can,

therefore, no longer claim to be a victim of a violation of his

Convention rights within the meaning of Article 25 (Art. 25) of the

Convention.

The Government further submit that the applicant is at present

illegally residing in Austria. There is a legally effective residence

ban against him. However, he may not be expelled as long as the

indication under Rule 36 of the Commission's Rules of Procedure is

upheld.

The applicant submits in particular that the mere fact that he

has been released did not change his legal status. He argues that the

residence ban against him is still in force and can be enforced without

any further decision. Moreover, he does not have a right to temporary

residence under the Asylum Act for the duration of his asylum

proceedings. Finally, he considers that the Austrian authorities do

not "de facto" tolerate his residence in Austria, as the preparations

for his expulsion had been made and he had only been released because

the Commission had given an indication under Rule 36 of its Rules of

Procedure.

The Commission finds that the applicant can still claim to be a

victim within the meaning of Article 25 (Art. 25) of the Convention.

In this respect, the Commission notes in particular that the residence

ban of 8 January 1994 against him is still in force. Further, it

appears that the asylum proceedings, which are, following the

Administrative Court's judgment, pending again before the Ministry for

the Interior, do not give the applicant a temporary right to residence.

Given that the Austrian authorities had already prepared the

applicant's expulsion, which was only stopped following the

Commission's indication under Rule 36 of its Rules of Procedure, it

cannot be assumed that his residence is "de facto" tolerated by the

Austrian authorities.

Further, the Commission finds, for the aforementioned reasons,

that the asylum proceedings, which are still pending, cannot be

regarded as an effective remedy within the meaning of Article 26

(Art. 26) of the Convention in respect of the applicant's expulsion.

The Austrian authorities, in separate proceedings under SS. 37 and

54 of the Aliens Act, which are already terminated, found that the

applicant's expulsion to Zaire would be acceptable. The Commission's

finding is confirmed by the fact that the Government have not objected

to the admissibility of the present application for non-exhaustion of

domestic remedies.

b. The merits

As regards the merits of the application, the Government contend

that the applicant's allegations are unfounded.

The applicant submits that he would face arrest, torture or even

death on the ground that he used his position as secretary of the

Zairese ambassador in Vienna to pass on information to the UDPS, an

opposition party, of which he is a member.

After an examination of this issue in the light of the parties'

submissions, the Commission considers that it raises questions of fact

and law which can only be determined by an examination of the merits.

It follows that this complaint cannot be declared inadmissible as being

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.

2. The applicant further complains that his detention with a view

to his expulsion to Zaire was contrary to Article 3 (Art. 3) of the

Convention.

The Commission notes that Article 5 para. 1 (f) (Art. 5-1-f) of

the Convention provides for the lawful arrest or detention of a person

against whom action is being taken with a view to deportation or

extradition. In the present case the Vienna Independent Administrative

Senate, in its decision of 14 July 1994 and subsequent decisions, found

that the applicant's detention with a view to his expulsion was lawful.

The Commission finds that the applicant failed to show that his

detention involved suffering or humiliation which went beyond the

inevitable element of suffering or humiliation connected with the

legitimate deprivation of liberty (see, mutatis mutandis, Eur. Court

H.R. Soering judgment of 7 July 1989, Series A no. 161. p. 39,

para. 100).

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.

For these reasons, the Commission, unanimously,

DECLARES ADMISSIBLE without prejudging the merits the applicant's

complaint that his expulsion to Zaire would expose him to a real risk

of torture or inhuman or degrading treatment in that country;

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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MBEMBA v. AUSTRIA

MBEMBA v. AUSTRIA

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