Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23830/94

by Zenel KRUETZI

against Austria

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 3 February 1994

by Zenel KRUETZI against Austria and registered on 11 April 1994 under

file No. 23830/94;

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 applicant is a national of former Yugoslavia, and of Kosovo-

Albanian origin, born in 1958. He is presently residing in Rijeka

(Croatia). Before the Commission he is represented by Mr. W. Rainer,

a lawyer practising in Vienna.

The facts of the case, as presented by the applicant, may be

summarised as follows.

On 13 April 1993 the applicant arrived in Austria. The next day

he filed an asylum request with the Federal Asylum Office (Bundes-

asylamt). On 15 April 1993 he was questioned by the Asylum Office.

On 16 April 1993 the Asylum Office dismissed the applicant's

request. The Asylum Office referred to the applicant's statements of

15 April 1993 according to which he had left Jugoslavia because in the

course of a police check of a bus on which he had been travelling,

police officers had taken away his passport, had slapped him in the

face and had ordered him to come to the police station the next day.

He had not presented himself at the police station because he had

feared that he would be ill-treated. He had further stated that he did

not want to return to Jugoslavia because he feared to be drafted for

military service. Before arriving in Austria he had stayed for one and

half a month in Croatia. The Asylum Office found that the incident

with the police officers did not as such constitute persecution within

the meaning of the Geneva Refugee Convention. The Asylum Office

further considered that the fact that upon his return he would be

drafted for military service did not constitute a reason for granting

refugee status. Furthermore, he had stayed, before coming to Austria,

for some time in Croatia which had to be considered as a safe country.

Thus, he had already found refuge before coming to Austria. The Asylum

Office also decided that an appeal against its decision had no

suspensive effect.

On 16 April 1993 the Baden District Administrative Authority

(Bezirkshauptmannschaft), having found that he had entered Austria by

circumventing the border control and having noted that his asylum

request had been dismissed, issued a deportation order (Ausweisungs-

bescheid) against the applicant and ordered that he be taken into

detention with a view to expulsion (Schubhaft). The applicant appealed

against this decision.

On 28 April 1993 the applicant requested the District

Administrative Authority to render a declaratory decision that his

removal to Jugoslavia, Macedonia, Italy, Croatia and Slovenia was not

permitted (Feststellung der Unzulässigkeit der Abschiebung). He

invoked Section 37 of the Aliens Act (Fremdengesetz) according to which

the removal of an alien was not permitted to a country where he would

risk inhuman treatment, punishment and capital punishment or where his

life or liberty would be endangered because of his ethnic origin or

political opinion. He submitted that if expelled to Jugoslavia he

would be ill-treated and drafted for military service. He would also

risk to be expelled to Yugoslavia from the other countries mentioned.

On 6 May 1993 the District Administrative Authority rejected the

applicant's request of 28 April 1993. It noted that a deportation

order had been issued against the applicant on 16 April 1993 and

recalled that a request for a declaratory statement could only be filed

prior to the termination of the proceedings in first instance but not

during the appeal proceedings.

On 18 May 1993 the Federal Minister for the Interior

(Bundesminister für Inneres) dismissed the applicant's appeal against

the Federal Asylum Office's decision of 16 April 1993. The Minister

found that the applicant had failed to substantiate his allegation that

he would risk persecution in Jugoslavia. In particular, sovereign

states were entitled to institute and enforce military service, even

by severe punishment. The situation of civil war in the applicant's

country of origin was no sufficient reason for granting asylum.

On 3 June 1993 the Public Security Authority of Niederösterreich

(Sicherheitsdirektion) dismissed the applicant's appeal against the

District Administrative Authority's decision of 6 May 1993.

On 9 June 1993 the applicant filed a complaint with the

Administrative Court against the Public Security Authority's decision

of 3 June 1993. He submitted that a request for a declaratory

statement could also be filed during appeal proceedings. The applicant

also requested that suspensive effect be granted to his complaint.

On 18 June 1993 the Administrative Court granted suspensive

effect to the applicant's complaint.

On 12 July 1993 the Public Security Authority submitted its

observations on the applicant's complaint in which, inter alia, it

informed the Administrative Court that the latter's decision of

18 June 1993 to grant suspensive effect, had only been received by the

Authority on 5 July 1993, whereas the applicant had already been

removed to Yugoslavia on 24 June 1993.

On 29 July 1993 the Administrative Court discontinued its

proceedings as there was no longer a legitimate interest in pursuing

the matter (Wegfall des Rechtsschutzbedürfnisses): After the applicant

had been removed, his complaint had only a theoretical significance but

the purpose of the proceedings instituted could no longer be achieved.

COMPLAINTS

1. The applicant complains under Article 13 of the Convention that

the Administrative Court's decision to discontinue proceedings after

his removal had already been carried out, had violated his right to an

effective remedy to complain that his removal to Jugoslavia would

violate his right under Article 3 of the Convention not to be subject

to inhuman treatment.

2. The applicant further complains under Article 6 para. 1 of the

Convention that the Administrative Court's decision to discontinue

proceedings and not to deal with his complaint in substance had

violated his right to a fair trial.

THE LAW

1. The applicant complains under Article 13 (Art. 13) of the

Convention that the Administrative Court's decision to discontinue

proceedings after his removal had already been carried out, had

violated his right to an effective remedy to complain that his removal

to Yugoslavia would violate his right under Article 3 (Art. 3) of the

Convention not to be subject to inhuman treatment.

Article 13 (Art. 13) of the Convention reads as follows:

"Everyone whose rights and freedoms as set forth in this

Convention are violated shall have an effective remedy

before a national authority notwithstanding that the

violation has been committed by persons acting in an

official capacity."

The Commission recalls that Article 13 (Art. 13) of the

Convention requires a remedy in domestic law only in respect of

grievances which can be regarded as "arguable" in terms of the

Convention (Eur. Court H.R., Powell and Rayner judgment of

21 February 1990, Series A no. 172, p. 14, para. 31).

In order to ascertain whether Article 13 (Art. 13) was applicable

in the instant case, the Commission has to determine, in the light of

the facts of the case and the nature of the legal issue or issues

raised, whether the claim that the applicant's removal to Yugoslavia

exposed him to the risk of inhuman treatment prohibited by Article 3

(Art. 3) of the Convention was arguable.

In this respect, 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).

The Commission observes that the Austrian police authorities

refused the applicant's request for political asylum as they found that

he had failed to substantiate a risk of being persecuted in Yugoslavia

upon his return.

The Commission finds in particular that the risk of prosecution,

upon his return to Yugoslavia for evasion of military service, does not

in itself constitute treatment contrary to Article 3 (Art. 3) of the

Convention (cf. No. 11017/84, Dec. 13.3.86, D.R. 46 p. 181;

No. 12364/86, Dec. 17.10.86, D.R. 50 p. 289; No. 22199/93,

Dec. 21.10.93, unpublished).

Moreover, the Commission considers that the applicant has not

shown any further serious risks of being prosecuted on other grounds

or otherwise exposed to treatment forbidden by Article 3 (Art. 3) of

the Convention.

The Commission therefore finds that the applicant's submissions

do not give rise to a prima facie issue under Article 3 (Art. 3) of the

Convention, and thus cannot be considered to be an "arguable claim".

Consequently, Article 13 (Art. 13) of the Convention does not apply in

respect of the applicant's complaint under Article 3 (Art. 3) of the

Convention.

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 applicant complains further under Article 6 para. 1

(Art. 6-1) of the Convention that the Administrative Court's decision

to discontinue proceedings and not to deal with his complaint in

substance had violated his right to a fair trial.

The Commission recalls that a decision as to whether an alien

should be allowed to stay in a country does not involve the

determination of civil rights or of a criminal charge within the

meaning of Article 6 (Art. 6) of the Convention (No. 8118/77, D.R. 25

p. 105, at 119).

It follows that Article 6 para. 1 (Art. 6-1) of the Convention

is not applicable in the present case.

This part of the application is therefore incompatible ratione

materiae with the provisions of the Convention in accordance with

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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KRUETZI v. AUSTRIA

KRUETZI v. AUSTRIA