Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 20213/92

by I.B. and L.B.

against Germany

The European Commission of Human Rights (First Chamber) sitting

in private on 7 September 1993, 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

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 27 April 1993 by

I.B. and L.B. against Germany and registered on 23 June 1992 under file

No. 20213/92;

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 applicants, may be

summarised as follows.

The applicants are a married couple, born in 1955 and 1962,

respectively. They are of Yugoslav origin and submit that they belong

to a group of Roma. When lodging their application, they were resident

in Bremerhaven. Before the Commission they are represented by Mr. E.

Heinsen, a lawyer practising in Hamburg.

In March 1988 the applicants entered the territory of the Federal

Republic of Germany. They applied for political asylum, and submitted

in particular that they risked persecution by a former fiancee of the

second applicant.

In December 1988 the Federal Office for Political Refugees

(Bundesamt für die Anerkennung ausländischer Flüchtlinge) dismissed

their requests for political asylum.

On 17 January 1989 Bremerhaven Municipality requested the

applicants to leave the territory of the Federal Republic of Germany

and ordered their expulsion. The applicants filed an appeal against

this decision with the Bremen Administrative Court (Verwaltungs-

gericht). In October 1989 the applicants withdrew their action

following an offer by the defendant Municipality of provisional

residence permits (Duldungen) for a period of three months.

On 30 March 1990 the Bremerhaven Municipality again requested the

applicants to leave the territory of the Federal Republic of Germany.

In April 1990 the applicants filed requests for political asylum

for a second time. They then argued inter alia that as members of the

group of Roma they risked persecution in Yugoslavia. The Bremerhaven

Municipality rejected these requests, considering that they were

irrelevant second requests (Folgeanträge).

On 25 April 1990 the Bremerhaven Municipality ordered the

applicants to leave the territory of the Federal Republic of Germany.

The applicants filed an appeal with the Bremen Administrative

Court and requested that the execution of the order of 25 April 1990

be suspended pending the court proceedings. Their request for a

suspension was dismissed on 27 June 1990. Their appeal (Beschwerde)

in this respect was dismissed by the Bremen Administrative Court of

Appeal (Oberverwaltungsgericht) on 20 July 1990. The applicants

withdrew their action in August 1990, and requested that, as an interim

measure (einstweilige Anordnung), the defendant Municipality be ordered

to grant them provisional residence permits. They withdrew this

request some days later.

On 11 October 1990 the applicants again filed a request with the

Bremen Administrative Court that, as an interim measure, the defendant

Municipality be ordered to grant them provisional residence permits.

In these and the following proceedings the applicants were represented

by Mr. Heinsen.

On 16 January 1991 the Bremen Administrative Court dismissed the

request. The Administrative Court found that the applicants had failed

to adduce prima facie evidence to show that they were entitled to

provisional residence permits.

The Court considered in particular that the decisions of 17

January 1989 and 25 April 1990 had become final, and that there no

indication of any change in the factual circumstances relevant for

these decisions. Furthermore, the defendant Municipality was not, for

legal reasons, hindered to expel the applicants. The applicants could

not rely on the Geneva Convention of Refugees on the ground that, after

having withdrawn their appeals against the refusal of political asylum,

they could no longer claim to be persecuted as members of a particular

ethnic or social group or for political reasons.

The Administrative Court, noting that the applicants had Yugoslav

passports, further considered that they were no stateless persons.

There was nothing to show that the Yugoslav State would not accept them

as its nationals. The applicants' submissions before the Court that

their Yugoslav passports were false, that they had left Yugoslavia in

1980 and since then lived in several European Countries were at

variance with their previous statements before the Federal Office for

Refugees, and, therefore, not credible.

The Administrative Court also observed that, in two other cases,

the Bremen Senator for the Interior (Senator für Inneres) had

exceptionally ordered the defendant Municipality to grant provisional

residence permits to two Yugoslav families belonging to the group of

Roma because of particular hardships. However, the Senator had later

stated that he did not intend to take similar decisions again. Under

these circumstances, the applicants could not claim that a positive

administrative practice be continued.

Finally, the Administrative Court stated that there were no

pressing humanitarian or other important public interests in permitting

the applicants' further stay in the Federal Republic of Germany.

On 4 July 1991 the Bremen Administrative Court of Appeal

dismissed the applicants' appeal.

The Administrative Court of Appeal noted that, upon their arrival

in the Federal Republic of Germany, the applicants had stated that they

were of Yugoslav nationality, and had indicated places of birth in

Yugoslavia. They had produced Yugoslav passports and submitted that

they had come from Yugoslavia. When questioned in serbo-croate

language at the Federal Office for Refugees, the first applicant had

stated that, after having attended school for nine years, he had done

his military service in the Yugoslav army. He had then worked as a

painter for a state enterprise for twelve years. He had come to

Germany because of his wife whose previous fiancé had been released

from prison in Yugoslavia. The second applicant had stated that she

had attended primary school for seven years and had always lived with

her mother in Naklo, Yugoslavia. A sister and three brothers were

living in Kosovo. Since the release of her previous fiancé from prison

after five years' imprisonment, she feared his revenge.

The Administrative Court of Appeal considered that its decision

had to be based upon the facts as recounted by the applicants in the

proceedings before the Federal Office for Refugees. The submissions

presented on their behalf in their appeal, namely that they were

stateless, that their places of birth were unknown, that they had been

wandering for more than eight years in different European countries,

was incredible. The changed version of facts corresponded to counsel's

strategy, pursued in similar cases, to play down any connections with

Yugoslavia and to present the applicants as factually stateless

persons.

On 15 October 1991 the Federal Constitutional Court (Bundes-

verfassungsgericht) refused to admit the applicants' constitutional

complaints (Verfassungsbeschwerden) on the ground that they offered no

prospects of success.

On 5 March 1992 the President of the Bremen Municipal Council

(Bürgerschaft) informed the applicants that on 27 February 1992 their

request of 14 August 1991 for provisional residence permits pending

their constitutional complaint proceedings had been dismissed. The

President referred to their obligation to leave the Federal Republic

of Germany following their unsuccessful asylum proceedings. There was

no possibility to allow the applicants' further stay in Germany.

Having regard to the civil war in Yugoslavia, no Croats were expelled

for the time being. However, the applicants were Yugoslav nationals

and had come from Macedonia. There were no indications that, upon

their return, they risked torture, capital punishment, or that there

was any risk for their life, health or liberty.

By letter of 11 December 1992, the applicants' representative

informed the Commission that he had obtained his mandate through an

association of Roma and Sinti in Germany with seat in Hamburg, and that

he did not have contact with the applicants. He also stated that so

far no expulsion had taken place because of the general situation in

former Yugoslavia.

COMPLAINTS

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

their envisaged expulsion to former Yugoslavia. They submit in

particular that the first applicant risks being forced to join one of

the fighting groups. They also complain that their destination in

former Yugoslavia was unclear. They point out that they came from

Kosovo. Should they be sent to Macedonia, they risked having to live

in camps for Roma.

2. The applicants further complain under Article 6 para. 1 of the

Convention that, in the proceedings concerning provisional residence

permits, the German courts did not duly consider their new account of

the relevant facts.

THE LAW

1. The applicants complain that the German authorities refused to

grant them provisional residence permits. They submit that their

expulsion to Yugoslavia would amount to inhuman treatment contrary to

Article 3 (Art. 3) of the Convention.

The Commission has consistently held that the right of an alien

to reside in a particular country in not as such guaranteed by the

Convention. However, expulsion by a Contracting State of an asylum

seeker 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 finds that there is no

indication that the applicants were subjected to ill-treatment in

Yugoslavia prior to their departure. Upon their arrival in Germany,

the applicants indicated that they had left Yugoslavia for personal

reasons. They did not pursue their court actions regarding the refusal

of political asylum in 1988, or against the orders to leave Germany

dated 17 January 1989 and 25 April 1990. In the administrative court

proceedings instituted in October 1990, the applicants for the first

time retracted their earlier version and submitted that they were in

fact stateless and had been travelling for several years in different

European States before coming to Germany. This new account was not

found to be credible by the German courts.

The Commission considers that the applicants' submissions in the

course of the domestic proceedings do not disclose any risk of

ill-treatment upon their return to former Yugoslavia.

As regards their reference to the general situation in former

Yugoslavia, the Commission recalls that the mere possibility of

ill-treatment on account of the unsettled general situation in a

country is in itself insufficient to give rise to a breach of Article 3

(Art. 3) (see Eur. Court H.R., Vilvarajah and Others judgment, loc.

cit., p. 37, para. 111).

The Commission finds that the applicants failed to show that,

upon their return to former Yugoslavia, they would face any real risk

of being subjected to treatment contrary to Article 3 (Art. 3) of the

Convention.

The Commission also observes that, according to the statements

of their representative, the actual whereabouts of the applicants, who

were ordered to leave Germany, are not known. However, there is no

indication that they have left the country. Moreover, their expulsion

is not imminent.

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 applicants complain under Article 6 para. 1 (Art. 6-1) of the

Convention about the alleged unfairness of the German court proceedings

concerning their requests to be granted provisional residence permits.

The Commission recalls that a decision as to whether an alien

should be allowed to stay in a country or be expelled does not involve

either the determination of the alien's civil rights and obligations

or of a criminal charge within the meaning of Article 6 para. 1

(Art. 6-1) (see No. 8118/77, Dec. 19.3.81, D.R. 25 p. 105).

It follows that this part of the application is incompatible

ratione materiae with the provisions of the Convention 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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I.B. AND L.B. v. GERMANY

I.B. AND L.B. v. GERMANY

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