Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 24258/94

by Dragan MANCE

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 12 October 1994, the following members being present:

MM. A. WEITZEL, President

C.L. ROZAKIS

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

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 24 January 1994

by Dragan MANCE against Austria and registered on 3 June 1994 under

file No. 24258/94;

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 facts of the case as submitted by the applicant may be

summarised as follows.

The applicant, born in 1965, is a national of Yugoslavia (Serb).

He is currently detained in the Tullnerbach Tuberculosis Sanatorium,

which belongs to the prison of the Vienna Regional Criminal Court.

A. Particular circumstances of the case

The applicant performed his military service in the Yugoslav army

from March 1987 until August 1987 as an infantry soldier. He was called

up to serve in January 1992 and was deployed in Sarajevo. He deserted

in early 1992 and came to Austria on 24 May 1992.

On 25 November 1992 the applicant filed a request for asylum. He

submitted in particular that he had attacked the officer leading his

unit, who had thrown a one-year-old child in an oven. After that he

deserted. According to his written request he shot the officer, while

at the hearing before the Federal Office for Asylum (Bundesasylamt),

where he was assisted by an interpreter, he said that he knocked him

down. On 23 December 1992 the Federal Office for Asylum dismissed the

applicant's request. On 11 August 1993 the Federal Ministry for the

Interior (Bundesministerium für Inneres) dismissed the applicant's

appeal. The Ministry found, inter alia, that penalties for draft

evasion or desertion did not in themselves constitute persecution as

they pursued the legitimate aim of enforcing the obligation to serve

in the army. A penalty for the attack on the officer, which was a

punishable act, did not constitute persecution either. On 27 April

1994 the Administrative Court (Verwaltungsgerichtshof) dismissed the

applicant's complaint.

On 31 August 1993 the Hollabrunn District Administrative

Authority (Bezirkshauptmannschaft) issued a residence ban (Aufenthalts-

verbot) based on S. 18 paras. 1 and 2 subpara. 1 of the Aliens Act

(Fremdengesetz) against the applicant. The Authority noted that the

applicant had, on 1 July 1993, been convicted of burglary by the Vienna

Regional Criminal Court and had been sentenced to two years'

imprisonment. The judgment had become legally effective. The Authority

found that, therefore, the applicant's residence would disturb public

order or, eventually, endanger national security. On 27 September 1993

the Lower Austrian Security Directorate (Sicherheitsdirektion)

dismissed the applicant's appeal. On 14 April 1994 the Administrative

Court dismissed his complaint.

Also on 31 August 1993, the Hollabrunn District Administrative

Authority dismissed the applicant's request under S. 54 Aliens Act to

render a declaratory decision that his expulsion to former Yugoslavia

was not permitted (Feststellung der Unzulässigkeit der Abschiebung) on

the ground that he would risk to be sentenced to death for desertion

or for having knocked down an officer, after he had had to watch, among

other atrocities, how two children were thrown alive into an oven. In

addition the applicant had submitted that he feared persecution because

the officer, whom he had attacked had a high position in a party of the

extreme right.

The Authority relied on 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

capital punishment or that he would be persecuted within the meaning

of the Geneva Convention on the Status of Refugees. The Authority noted

that the applicant's request for asylum had been rejected at first

instance, but that the appeal proceedings were still pending. With a

view to the applicant's allegation that he would risk capital

punishment for desertion or for the attack on the officer, the

Authority considered that desertion was punishable with several months'

imprisonment and in aggravated cases with one to two years'

imprisonment under the Yugoslav Military Service Act. Although the

attack on the officer would lead to more severe punishment, the

application of a death sentence was in any case excluded.

On 27 October 1993 the Lower Austrian Security Directorate, on

the applicant's appeal, upheld the District Authority's decision. The

Directorate confirmed the District Administrative Authority's view that

the applicant did not risk capital punishment for desertion or for the

attack on the officer. The Authority also referred to the asylum

proceedings, which had meanwhile been concluded at the appeal stage.

It noted inter alia that the applicant had only filed a request for

asylum six months after he came to Austria. Moreover, he had given

different accounts of his attack on the officer, in that, in his

request for asylum, he had submitted to have shot him, while in the

proceedings at issue he had claimed to have injured him. In conclusion,

the Authority considered that the applicant failed to show that he had

reasonable grounds to fear persecution if returned to former

Yugoslavia.

On 20 January 1994 the applicant filed a complaint with the

Administrative Court. He alleged that the authorities had wrongly

applied S. 37 of the Aliens Act. He submitted, in particular, that he

would risk being sentenced to death without trial or at least without

a fair trial, as the officer shot by him was a member of a party of the

extreme right. There were reasons to fear that his execution would be

ordered immediately after his return.

On 3 March 1994 the Administrative Court rejected the applicant's

complaint for defects as to formal requirements. On 1 June 1994 the

Administrative Court also rejected his request for reinstatement

(Wiedereinsetzung) for defects as to formal requirements.

B. Relevant domestic law

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

residence ban (Aufenthaltsverbot) may be issued against an alien, if

there are reasonable grounds to believe that his stay will disturb

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

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. 22 states that, once the residence ban has become legally

effective, the alien is obliged to leave the territory of the Federal

Republic immediately. S. 36 deals with cases in which the authorities

may resort to expulsion (Abschiebung) to enforce a residence ban

against an alien, e.g. if the surveillance of his departure appears

necessary in the interest of public order or security, or if there are

reasonable grounds to believe that he will not fulfil his obligation

to leave.

S. 37 deals with cases where it is prohibited to expel an alien.

Para. 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. Para. 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.

S. 54 para. 1 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 para. 1 or 2. According

to para. 2 such a request may, inter alia, be made during proceedings

concerning the issuance of a residence ban. The alien has to be

informed timely of the possibility to make the request.

COMPLAINTS

The applicant complains under Articles 2 and 3 of the Convention

that his expulsion to former Yugoslavia would expose him to the risk

of being executed. He argues that, even assuming that he would not be

sentenced to death for desertion or for the attack on the officer, he

had to fear for his life as the extremist party to which the officer

belonged was known to kill their adversaries. Moreover, he submits

that he would risk being persecuted for his political convictions.

THE LAW

1. The applicant complains that, if he is expelled to former

Yugoslavia he risks being sentenced to death for desertion or for

having attacked an officer, or to be killed by the extremist party to

which the officer belongs. Moreover, he submits that he risks being

persecuted for his political convictions. He invokes Articles 2 and 3

(Art. 2, 3) of the Convention.

2. The Commission recalls that, although Article 2 (Art. 2) of the

Convention does not prohibit capital punishment, Article 1 of Protocol

No. 6 (P6-1) provides that the death penalty shall be abolished and

that no one shall be condemned to such a penalty or be executed. The

mere allegation, otherwise unsubstantiated, by the applicant that he

may be subject to the risk of being sentenced to death or of being

executed, does not suffice, however, to bring an expulsion measure

within the ambit of the latter provision.

3. However, the applicant's complaints may fall within the scope of

Article 3 (Art. 3) of the Convention, which reads as follows:

"No one shall be subjected to torture or to inhuman or

degrading treatment or punishment."

The Commission recalls that the Contracting States have the right

to control the entry, residence and expulsion of aliens. The right to

political asylum is not protected in either the Convention or its

Protocols (Eur. Court H.R., Vilvarajah and Others judgment of

30 October 1991, Series A no. 215, p. 34, para. 102). However,

expulsion by a Contracting State of an asylum seeker 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 torture or to inhuman or

degrading treatment or punishment in the country to which he is to be

expelled (ibid., para. 103). A mere possibility of ill-treatment is not

in itself sufficient (ibid., p. 37, para. 111).

In the present case the applicant was refused asylum and a

residence ban was issued against him. Moreover, the Austrian

authorities, on the applicant's request, dealt with the question wether

his expulsion to former Yugoslavia would be prohibited under S. 37 of

the Aliens Act on the ground that he would risk to be subjected to

inhuman treatment or punishment or to capital punishment, or to

persecution within the meaning of the Geneva Convention on the Status

of Refugees. They found that he would risk to be sentenced to up to two

years imprisonment for desertion under the Yugoslav Military Service

Act or eventually to a longer term for the attack on an officer.

However, the Austrian authorities found that the applicant would not

risk capital punishment.

The Commission itself does not consider it established that the

applicant would face capital punishment for desertion or for having

attacked an officer, if returned to former Yugoslavia. Concerning his

possible imprisonment for these offences, the Commission does not find

such a penalty so severe as to raise an issue under Article 3 (Art. 3)

of the Convention (No. 12364/86, Dec. 17.10.86, D.R. 50 p. 280;

No. 11017/84, Dec. 13.3.86, D.R. 46 p. 176; 22325/93, Dec. 8.9.93,

unpublished).

As regards the applicant's allegation that he would be killed by

the extremist group to which the officer attacked by him belonged, the

Commission notes that the applicant gave different accounts of the

incident at issue in the asylum proceedings and in the proceedings

under the Aliens Act. In particular it remains unclear whether he only

injured the officer or whether he shot him. Moreover, the applicant

failed to make specific submissions about the risk of being persecuted

by this group upon his return to former Yugoslavia.

The Commission further finds no substantiation of the applicant's

allegation that he would be persecuted for his political convictions

if being expelled to his country.

In conclusion, the Commission does not consider it established

that the applicant would be exposed to a real risk of being subjected

to treatment contrary to Article 3 (Art. 3) of the Convention on his

return to former Yugoslavia.

In these circumstances the application must be rejected as

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

(Art. 27-2) of the Convention.

For these reasons, the Commission, by a majority

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (A. WEITZEL)

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MANCE v. AUSTRIA

MANCE v. AUSTRIA

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