AS TO THE ADMISSIBILITY OF

Application No. 25661/94

by Makulu NSANGU

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. ŠVÁBY

E. KONSTANTINOV

G. RESS

Mr. H.C. KRÃœGER, 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 14 November 1994 by Makulu Nsangu against Austria and registered on 14 November 1994 under file No. 25661/94;

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 on 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 1967, is a Zairese national.  When lodging her application she was detained in the Vienna Police Prison, with a view to her expulsion to Zaire.  She has meanwhile been released.  In the proceedings before the Commission she is represented by Mr. G. Liedermann , a lawyer practising in Vienna.

A. Particular circumstances of the case

In May 1990 the applicant went to Austria with her husband, who was employed as a cook at the Zairese embassy in Vienna.

On 21 September 1992 the applicant's husband filed a request for asylum.  In accordance with S. 4 of the Austrian Asylum Act, this request was extended also to cover his wife, the applicant, and their two children, born in 1985 and 1987.

On 7 October 1992 the Federal Office for Asylum ( Bundesasylamt ) rejected the request by the applicant's husband.

Subsequently, the applicant's husband lodged an appeal with the Federal Ministry for the Interior ( Bundesministerium für Inneres ).  On 7 May 1993 the applicant's husband submitted a number of documents in support of his appeal:

- a personal letter of 23 April 1993 from the First Secretary of the Zairese embassy in Paris, addressing the applicant's husband 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's husband, and stating that the persons listed were dangerous, subversive elements;

- a letter of 10 January 1993 from the Secretary General of the "Union pour la Démocratie et le Progrès Social" (UDPS) in Kinshasa to the Zairese Socialist Party in Vienna, for the attention of its president, Mr. Ngongo , informing the latter that the applicant's husband was an active member of the UDPS and asking him to intervene in favour of the applicant before the Austrian authorities; and

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

On 12 May 1993 the Federal Ministry for the Interior ( Bundesministerium für Inneres ) dismissed the appeal by the applicant's husband.  The Ministry noted that he had made the following submissions in the course of the proceedings: 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 informed him about the existence of a telex in which the secret service had requested his return.  Thereupon, he refused to go to Zaire and was dismissed, but was reinstated soon after.  In April 1992 the ambassador ordered him to poison a politician belonging to the opposition party, who was on visit in Vienna.  When he refused to do so, the ambassador stopped paying him, which he thought would force him to return to Zaire.  In May 1992 he was again ordered to go home, but refused to leave.  He was afraid of being killed if he returned to Zaire.

The Ministry found that the applicant's husband had worked at the Zairese embassy in Vienna, although he had been ordered to return to Zaire.  It concluded that the ambassador did not consider the applicant's criticism of the regime to be significant.  Moreover, he had not been able to name the opposition party to which he allegedly belonged.  Thus it was not credible that he was a member of such a party.  Further, the Ministry noted that according to several reports a multi-party system had been introduced in Zaire in April 1990.  As regards the documents submitted by the applicant, the Ministry found that they did not support the allegation that he would be subject to persecution 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 authority did not suffice to establish his status as a refugee.

On 2 June 1993 the Federal Office for Asylum rejected the applicant's request for asylum.  It referred to the decision of 12 May 1993 by the Ministry for the Interior, which had rejected her husband's request for asylum, and stated that her request under S. 4 of the Asylum Act had, therefore, also to be rejected.  On 15 June 1993 the Federal Ministry for the Interior dismissed the applicant's appeal.

On 23 December 1993 the applicant's husband lodged a complaint with the Administrative Court against the decision of 12 May 1993 by the Ministry for the Interior.  He also requested that his complaint be granted suspensive effect, which was refused by the Administrative Court on 14 January 1994.

On 4 July 1994 the Vienna Police Directorate ( Bundespolizei-direktion ) ordered the applicant's detention with a view to her expulsion, on the ground that she was residing illegally in Austria since her request for asylum had been rejected at second instance and she did not have the necessary means for her maintenance. On 4 July 1994 the applicant was taken into detention at the Vienna Police Prison.

On 7 July 1994 the Vienna Police Directorate, after having heard the applicant, issued a residence ban ( Aufenthaltsverbot ) against her, which is valid for five years.  The Police Directorate referred to the results of the asylum proceedings.  It found that the applicant was residing illegally in Austria and did not possess the necessary means for her maintenance.  As she, as well as her husband and children, had only been resident for about four years and she did not speak German, she had not been integrated.  Thus the interest in protecting the economic well-being of Austria outweighed her interest in staying.

On 12 July 1994 the Vienna Police Directorate rendered a declaratory decision under S. 54 of the Aliens Act ( Fremdengesetz ).  It stated that the applicant, at the hearing of 7 July 1994, had made a request for such a decision.  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 the receiving 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.

On 16 July 1994 the applicant filed an appeal against the residence ban of 7 July 1994.  She submitted in particular that she and her family had been living in Austria for four years.  Her children went to school there and spoke German, like Austrian children of a comparable age.  Further, they received maintenance from private charitable organisations and did not live on any public benefits.

On 25 July 1994 the Vienna Independent Administrative Senate ( Unabhängiger Verwaltungssenat ) dismissed the applicant's complaint of 16 July 1994 concerning the lawfulness of her detention with a view to her expulsion.

On 8 August 1994 the Federal Ministry for the Interior dismissed the applicant's appeal concerning the residence ban against her.  The Ministry found that the ban was justified under Article 8 of the Convention as it was necessary, inter alia , for the prevention of crime.  The applicant and her family had only been legally resident in Austria for a relatively short period and were not well integrated.

On 9 September 1994 the applicant filed a request with the Vienna Police Directorate, in which she submitted that the declaratory decision of 12 July 1994, relating to the question whether her expulsion to Zaire would be prohibited under S. 37 of the Aliens Act, had been issued without legal basis, as she had not requested such a decision.  She asked that the proceedings be reopened.

The applicant submitted a number of documents to support her allegation that, on the account of her husband's political activity, she too would be persecuted in Zaire.  These documents included the following:

- copies of two telexes of 21 December 1991 and 14 May 1992, respectively, addressed to the embassy in Vienna, which both stated that the applicant's husband was a subversive element and urged that he be returned to Zaire;

- a telefax of 10 April 1993 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's husband and stating that the persons listed are dangerous, subversive elements;

- letters of 3 and 5 March 1993 and 14 April 1993 by the President of the Zairese Socialist Party in Vienna to the Austrian Ministry for the Interior, stating that her husband had used his position at the embassy to pass on information to the opposition.

On 22 September 1994 the Vienna Police Directorate forwarded the file to the Vienna Security Directorate ( Sicherheitsdirektion ).  It added a comment according to which the applicant, although she had not expressly made a request under S. 54 of the Aliens Act, had submitted that she would be persecuted and killed if returned to Zaire.

On 23 September 1994 the Security Directorate returned the file, informing the Police Directorate that it did not intend to quash the latter's decision of 12 July 1994.  However, the Police Directorate would have to decide on the applicant's request for a reopening of the proceedings at issue.  It appears that the Police Directorate did not take any decision in this respect.

On 25 September 1994 police officers took the applicant and another person to Vienna airport in order to expel them to Zaire. However, in view of their strong resistance, they were returned to the Vienna Police Prison.

On 28 September 1994 the applicant requested the Vienna Police Directorate to stay her expulsion.  She referred to the entirety of her submissions of 9 September 1994.  She also submitted that her children, born in 1985 and 1987, would suffer from being separated from her. Finally, she pointed out that her husband's request for asylum was still pending before the Administrative Court.

On 7 November 1994 the Vienna Police Directorate dismissed the applicant's request.  As regards her submissions that her expulsion would expose her to a risk of being persecuted in Zaire, and would therefore be contrary to S. 37 of the Aliens Act, the Police Directorate found that it had already given its decision in this respect on 12 July 1994.  The new documents submitted by her mostly concerned her husband or a third person.  They were not adequate to establish that she risked persecution.  The other reasons invoked by her, namely that her husband's asylum proceedings were still pending before the Administrative Court and that her children were in Austria, were not relevant in the proceedings at issue.

On 4 November 1994 the Vienna Police Directorate received a certificate by the Zairese embassy in Brussels, confirming that the applicant would be allowed entry into Zaire ( Heimreisezertifikat ).

On 16 November 1994 the applicant was released.

Following the Administrative Court's decision of 15 September 1994, quashing the decision of 12 May 1993 by the Ministry for the Interior which had dismissed the asylum request of the applicant's husband, the husband's proceedings are, since 2 December 1994, again pending before the Ministry for the Interior.

On 23 December 1994 the applicant filed a renewed request with the Ministry for the Interior, to extend, in accordance with S. 4 of the Asylum Act, her husband's right to asylum to her and their two minor children or, eventually, to grant asylum to her.

B. Relevant domestic law

1. Asylum Act ( Asylgesetz )

S. 4 of the Asylum Act provides, that, upon request, the grant of asylum must be extended to the refugee's minor children and his or her spouse, if these persons are living in Austria and if the marriage had been concluded before they came to Austria.  In the asylum proceedings, such family members have the same legal position as the asylum-seeker.

2. Aliens Act ( Fremdengesetz )

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 her to Zaire.  She submits that she would face arrest, torture or even death on the ground of the activity of her husband, who allegedly used his position at the Zairese embassy to pass on information to the UDPS, an opposition party, of which he is a member.

2. In her observations of 6 December 1994 and of 10 Januray 1995 the applicant further complains that her detention with a view to her expulsion to Zaire, as such, was contrary to Article 3 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 14 November 1994 and registered the same day.

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

1. The applicant complains under Article 3 of the Convention about the Austrian authorities' decision to expel her to Zaire.

Article 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 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 with a view to her expulsion. 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 she can, therefore, no longer claim to be a victim of a violation of her Convention rights within the meaning or Article 25 of the Convention.

The Government further submit that the applicant is illegally residing in Austria, as the residence ban against her is legally effective.  Moreover, there is no direct link between the asylum proceedings concerning her husband and the question of her further residence in Austria.  However, she 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 she has been released did not change her legal status.  She argues that the residence ban against her is still in force and can be enforced without any further decision.  Further, she considers that the Austrian authorities do not "de facto" tolerate her residence in Austria, as the preparations for her expulsion had been made and she had only been released because the Commission had given an indication under Rule 36 of its Rules of Procedure.

T he Commission finds that the applicant can still claim to be a victim within the meaning of Article 25 of the Convention.  In this respect, the Commission notes in particular that the residence ban of 7 July 1994 against her is still in force.  According to the Government's submissions, the renewed asylum proceedings concerning her husband do not have any direct bearing on her 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 her residence is "de facto" tolerated by the Austrian authorities.

Further, the Commission finds that the renewed asylum proceedings concerning the applicant's husband cannot be regarded as providing an effective remedy within the meaning of Article 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 she would face arrest, torture or even death on the ground of the activity of her husband, who allegedly used his position at the embassy 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, the determination of which should depend on 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 of the Convention.  No other grounds for declaring it inadmissible have been established.

2. The applicant further complains that her detention with a view to her expulsion to Zaire, as such, was contrary to Article 3 of the Convention.

The Commission notes that Article 5 para . 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 25 July 1994 found that the applicant's detention with a view to her expulsion was lawful.  The Commission finds that the applicant has failed to show that her 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 of the Convention.

For these reasons, the Commission, unanimously,

DECLARES ADMISSIBLE, without prejudging the merits, the applicant's complaint that her expulsion to Zaire would expose her to a real risk of torture or inhuman treatment or punishment in that country;

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the Commission               President of the Commission

      ( H.C. KRÜGER)                             (C.A. NØRGAARD)