Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 22178/93

by Dilaver, Miradije, Gjuzela,

Ajhan, Sejhan and Erhan DAFEROFSKI

against Germany

The European Commission of Human Rights (First Chamber) sitting

in private on 2 September 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

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

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 2 June 1993 by

Dilaver, Miradije, Gjuzela, Ajhan, Sejhan and Erhan DAFEROFSKI against

Germany and registered on 8 July 1993 under file No. 22178/93;

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, as they have been submitted by the applicants, may be

summarised as follows.

The applicants, a married couple - both born in 1957 - and their

four children, born between 1977 and 1979, are nationals of former

Yugoslavia and of Macedonian origin. They belong to the community of

Roma. Before the Commission, they are represented by Mr. R. Klever,

a lawyer practising in Hamburg.

On 22 May 1988 the applicants entered the territory of Germany.

On 6 February 1989 the Federal Office for Political Refugees

(Bundesamt für die Anerkennung ausländischer Flüchtlinge) dismissed

their request for political asylum. The Office noted in particular

that, when heard in January 1989, the applicants had indicated that

they did not have any employment in Yugoslavia and could not send their

children to school, and that they had suffered disadvantages as members

of the Roma community. However, they had not faced any problems with

the police or other public authorities. The Office concluded that the

applicants had not left their home country as political refugees, but

as emigrants in order to improve their living conditions. In this

respect, the Office had regard to information provided by the Foreign

Office and an opinion by the Institute for Eastern European Law at the

Cologne University according to which there was no open or publicly

furthered discrimination against members of the Roma community. The

applicants' appeals remained unsuccessful, and the proceedings were

terminated in 1990.

On 20 June 1991 the Federal Office for Political Refugees, having

again heard the applicants, dismissed their second request for

political asylum (Asylfolgeantrag) dated June 1990.

On 16 July 1991 the Head of the Lauenburg County Administration

(Landrat) requested the applicants to leave Germany and ordered their

deportation. The applicants' request for interim measures was

dismissed by the Schleswig Holstein Administrative Court (Verwaltungs-

gericht) on 8 August 1991.

On 4 November 1991 the Schleswig Holstein Administrative Court

dismissed the applicants' claim to be recognised as political refugees

and their action to have the decision of 16 July 1991 set aside. The

Administrative Court found that the applicants' failed to show that

they were persecuted for political reasons. The Court noted in

particular that the applicants, in their reasons regarding their second

request for asylum, had submitted that they had joined an organisation

in Germany fighting for residence rights for members of the Roma

community, that they had participated in meetings of this organisation

and also publicly criticised the situation in Yugoslavia, and that

members of the Yugoslav Consulate had taken photographs on the occasion

of demonstrations. The Court found that these submissions, even

assuming that they were in themselves conclusive, were at variance with

their submissions upon their second hearing before the Federal Office

for Political Refugees.

On 2 March 1993 the Schleswig Holstein Administrative Court

dismissed the applicants' request for interim measures to stop their

deportation and for provisional residence permits (Duldungen).

On 6 May 1993 the Schleswig Holstein Administrative Court of

Appeal (Oberverwaltungsgericht) dismissed the applicants' appeal

(Beschwerde). The Court noted in particular that the applicants had not

provided any information which had not already been considered in the

Court's decision of 8 August 1991. As regards the applicants' further

submissions, the Court observed that the first applicant's illness in

March/April 1993 did no longer hinder his travelling.

Appeal proceedings are apparently still pending.

COMPLAINTS

1. The applicants complain under Article 3 of the Convention about

the refusal of political asylum and the expulsion and deportation order

issued against them. They submit that, upon their return to Macedonia,

they risk persecution as members of the Roma community.

2. The applicants further complain under Article 8 of the Convention

that, upon their deportation to Macedonia, they would not be in a

position to find accommodation or to send the children to school.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 2 June 1993. On 8 June 1993

the President of the Commission decided not to apply Rule 36 of the

Commission's Rules of Procedure. The application was registered on

8 July 1993.

THE LAW

1. The applicants complain about the refusal of political asylum and

the expulsion and deportation order, respectively. They invoke

Article 3 (Art. 3) of the Convention which states, so far as relevant:

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

treatment or punishment."

The Commission recalls that no right of an alien to enter or to

reside in a particular country is as such guaranteed by the Convention.

However, the expulsion by a Contracting State of a foreigner may give

rise to an issue under Article 3 (Art. 3), and hence engage the

responsibility of that State under the Convention, where substantial

grounds have been shown for believing that the person concerned faced

a real risk of being subjected to torture or to inhuman or degrading

treatment or punishment in the country to which he was returned (see

Eur. Court H.R., Vilvarajah and Others judgment of 30 October 1991,

Series A no. 215, p. 34, para. 103).

In the present case, the Commission, assuming exhaustion of

domestic remedies within the meaning of Article 26 (Art. 26) of the

Convention, notes that the German authorities, having regard to the

applicants' submissions, found that they had emigrated from former

Yugoslavia for personal reasons, and not as political refugees.

Moreover, the authorities considered that the applicants failed to show

that, due to their conduct during their stay in Germany, there were any

reasons to fear political persecution upon their return to Macedonia.

The Commission therefore concludes that the applicants'

submissions do not disclose any real risk that they would be subjected

to ill-treatment contrary to Article 3 (Art. 3) upon their deportation

to Macedonia.

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.

2. The Commission has further examined the applicants' complaint

that the impugned decisions infringed their right to respect for their

private and family life. However, the decisions of the German

authorities to expel and deport the applicants do not disclose any

appearance of a violation of Article 8 (Art. 8) of the Convention. In

particular, there is no indication in the file that the family will be

separated as a result of their deportation to Macedonia. The alleged

difficulties in finding accommodation and school facilities in

Macedonia do not engage the responsibility of Germany under Article 8

(Art. 8) of the Convention. It follows that this part of the

application is also manifestly ill-founded within the meaning of

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

For these reasons, the Commission unanimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

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

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DAFEROFSKI v. GERMANY

DAFEROFSKI v. GERMANY

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