THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 47701/99 by Adjara AHMADI, Amirdjan SABERDJAN and Omar Khan SABERDJAN against Lithuania

The European Court of Human Rights (Third Section) , sitting on 17 October 2000 as a Chamber composed of

Mr J.-P. Costa, President ,

Mr L. Loucaides,

Mr P. KÅ«ris,

Mrs F. Tulkens,

Mr K. Jungwiert,

Mrs H.S. Greve,

Mr M. Ugrekhelidze, judges ,

and Mrs S. Dollé, Section Registrar ,

Having regard to the above application introduced on 3 February 1999 and registered on 23 April 1999,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The first applicant, Adjara AHMADI, was born in 1948. The second applicant, Amirdjan SABERDJAN, was born in 1972. The third applicant, Omar Khan SABERDJAN, is the second applicant's son, born in 1995. All three were born in Afghanistan. The applicants are represented before the Court by Mr. M. Urbelis, a lawyer practising in Vilnius.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

Proceedings concerning the first applicant

The first applicant fled from Afghanistan in 1996 and illegally entered Lithuania via Belarus without any valid identification papers. She applied for political asylum in Lithuania, which was refused on the ground that she had no established family links in Lithuania and that her fear of persecution in Afghanistan had been unsubstantiated. On 3 November 1997 the Minister of the Interior decided to expel the first applicant from Lithuania. No time-limit or country of destination was specified in the expulsion order. The court proceedings brought by the applicant against the above decisions were unsuccessful.

By reference to Article 9 of the Refugees Act (see the 'Relevant domestic law' part below), on 17 February 1999 the interior authorities held that the first applicant could face persecution in Afghanistan and decided to clarify her identity and re-examine her status in Lithuania on account of the persistent state of unrest in Afghanistan and “in accordance with the principle of non-refoulement.”

On 10 April 2000 the first applicant applied to the interior authorities to leave Lithuania. She obtained an Afghan passport from the Afghanistan Embassy in Moscow and voluntarily left Lithuania on 27 April 2000. It appears that she now lives in Turkmenistan.

Proceedings concerning the second and third applicants

In 1996 the second and third applicants fled from Afghanistan. They illegally entered Lithuania via Belarus without any documents and immediately requested asylum. On 22 October 1997 the Minister of the Interior refused asylum on the ground that there was no substantiated fear of their persecution in Afghanistan. In the same decision the Minister decided to expel the second applicant and his son from Lithuania. No time-limit or destination was specified. The second applicant brought court proceedings concerning the above decisions, but to no avail.

On 16 November 1998 the Refugee Appeals Board granted asylum to the second applicant's brother and his family.

By reference to Article 9 of the Refugees Act, on 17 February 1999 the interior authorities held that the second and third applicants could face persecution in Afghanistan and decided to clarify their identity and re-examine their status in Lithuania on account of the persistent state of unrest in Afghanistan and “in accordance with the principle of non-refoulement.”

The second and third applicants applied for temporary residence on “humanitarian grounds” (see the 'Relevant domestic law' part below). By a decision of 10 July 2000 they were issued temporary residence permits for six months, pursuant to Article 19 § 3 of the Aliens Act, because of the danger to their lives and health in Afghanistan. In that decision it was noted that the second applicant had no valid identification documents, but that he had been assisted by the Lithuanian immigration authorities in applying to the Afghanistan Embassy in Moscow for an Afghan passport. The second applicant was requested to present a passport so that his and his son's temporary residence permits could be renewed after 10 January 2001.

B. Relevant domestic law

Article 9 of the Refugees Act stipulates that a rejected asylum seeker for whom an expulsion order has been issued cannot be expelled if his life could be endangered as a result.

Pursuant to Article 36 § 2 of the Aliens Act, an expulsion order can be suspended on “humanitarian grounds.” Pursuant to Article 19 § 3 of the Aliens Act, a rejected asylum seeker can apply for temporary residence on “humanitarian grounds.”

COMPLAINTS

Under Articles 3, 8 and 13 of the Convention the applicants originally complained that they were under a real threat of being expelled to Afghanistan, and that they thus ran an imminent risk of being subjected to torture and separated from other members of their families in Lithuania.

The first applicant concedes that she left Lithuania voluntarily, but claims a violation of the above provisions for the distress and uncertainty about her status in Lithuania from 1996 to 2000.

The second applicant, in his own name and on behalf of the third applicant, alleges that the expulsion order in their regard is still valid, and that the temporary residence permits have only given them a “very limited [and] exceedingly vague” security in Lithuania. The second applicant further claims that the temporary residence permits will cease to apply on 10 January 2001, and that thereafter their expulsion can again be open to question. He claims that it is very unlikely that the Afghan Embassy in Moscow will issue a passport to him so that he can have his residence permit in Lithuania renewed. The second and third applicants complain that the persisting “unclarity” of their situation and the absence of an effective recourse in Lithuania amounts to a violation of the above Convention provisions.

Under Article 3 of the Convention, the second and third applicant also complain about various socio-economic problems, including the absence of work, proper health care or education. They complain that their liberty of movement has been restricted in an aliens' reception centre where they are being held. The third applicant claims that he would prefer to stay in another refugee centre with the second applicant's brother in order to have better conditions for social development.

THE LAW

The applicants allege a violation of Articles 3, 8 and 13 of the Convention.

Article 3 provides:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 8 states insofar as relevant:

“1. Everyone has the right to respect for his private and family life ... .”

Article 13 reads:

“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority ... .”

The Government claim that the applicants are under no threat of being expelled from Lithuania, but the applicants contest that submission.

1. As regards the first applicant's complaints about the imminent threat of her removal from Lithuania, the Court notes that she left Lithuania voluntarily while her identity and the validity of her stay in the country were being examined by the immigration authorities. It follows that the first applicant may no longer claim to be a victim of a violation of the Convention within the meaning of Article 34.

In respect of the remainder of the first applicant's complaints, the Court considers that they do not disclose any appearance of a violation of the Convention or its Protocols. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and that it must be rejected under Article 35 § 4.

2. As regards the second and third applicant's complaints, the Court notes that they are now temporary residents in Lithuania, and have the possibility of renewing their residence permits. The alleged violations of the Convention concerning the unclarity of their status in Lithuania and the threat of them being expelled to Afghanistan were remedied by the decisions of the immigration authorities of 17 February 1999 and 10 July 2000 under Article 9 of the Refugees Act, and Articles 19 § 3 and 36 § 2 of the Aliens Act.

To the extent that the second and third applicants complain about their present living conditions, there is no evidence that these conditions attain the proscribed level of severity envisaged by Article 3 of the Convention (see, mutatis mutandis , the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, pp. 60-72, §§ 150-187).

The Court further notes that the second and third applicants complain that their freedom of movement has been restricted in an aliens' reception centre. The Court considers that these complaints should be examined under Article 5 of the Convention, which protects against arbitrary or unlawful detention, and Article 2 of Protocol No. 4 to the Convention, which guarantees the right to freedom of movement.

However, the second and third applicants have not submitted any details of the alleged restrictions on their freedom of movement, which might disclose a breach of the aforementioned provisions.

In respect of the remainder of the second and third applicant's complaints, the Court considers that they do not disclose any appearance of a violation of the Convention or its Protocols.

It follows that this part of the application must also be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, by a majority,

DECLARES THE APPLICATION INADMISSIBLE .

S. Dollé J.-P. Costa Registrar President