Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 18101/91

by C.R. and others

against Austria

The European Commission of Human Rights sitting in private on

7 May 1993, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

M.A. NOWICKI

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 11 April 1991 by

C.R. and others against Austria and registered on 19 April 1991 under

file No. 18101/91;

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 submitted by the parties may be summarised as

follows.

The applicants are 17 Sri Lankan citizens of Tamil origin (see

complete list in the Annex). The applicants' present whereabouts are

unknown. It appears that the applicants all reside in Austria with the

exception of the fourth and seventh applicants who reside in France.

The applicants are represented before the Commission by Mr. Wolfgang

Rainer, a lawyer practising in Vienna.

Particular circumstances of the case

I.

The applicants left Sri Lanka in March 1991 allegedly as they

feared that they would be killed by the Sri Lankan army. They

travelled to Rome where they had to remain in the transit room of Rome

Airport. They were prevented from applying for asylum.

Eventually they arrived at Vienna Schwechat Airport where they

remained for several weeks in the airport's transit area.

On 29 March 1991, while still at the airport, the applicants

filed requests for asylum with the Security Directorate

(Sicherheitsdirektion) of Lower Austria (Nieder-Österreich).

On 5 April 1991 the Schwechat Federal Police Directorate (Bundes-

polizeidirektion) refused the applicants' requests. Identical

decisions were served on each applicant. The applicants had authorised

an agent to accept service of the decisions.

According to the decisions the applicants had no right to stay

in Austria as, in the view of the authority, they had already fled to

another country where they could have asked for asylum. It was also

stated that any further measures concerning their requests would be

taken in pursuance of the Aliens Police Act (Fremdenpolizeigesetz).

On 9 April 1991 the Security Directorate of Lower Austria decided

that the applicants did not meet the requirements of the Geneva

Convention relating to the Status of Refugees for which reason they

could not be recognised as refugees. At first these decisions did not

become final and binding as they had not been served on the applicants'

representative.

At a date not specified by the parties the applicants were

allowed to leave Vienna airport and enter Austria.

On 29 August 1991 the Security Directorate of Lower Austria

quashed the decisions of the Schwechat Federal Police Directorate of

5 April 1991. The decisions stated that the applicants had the

provisional right to reside in Austria during the asylum proceedings.

II.

As the decisions of 9 April 1991 had not been served properly,

the applicants lodged a devolution request (Devolutionsantrag) with the

Ministry of the Interior. When the Ministry failed to decide, the

applicants lodged a complaint with the Administrative Court

(Verwaltungsgerichtshof) which set a mandatory time-limit for the

Ministry.

On 8 May 1992 a hearing was held before the Federal Ministry of

the Interior at which the applicants and their lawyer, although

convened, did not participate.

On 14 July 1992 the Federal Ministry of the Interior refused the

applicants' requests for asylum. The decisions stated that appeals

could be filed with the Administrative or the Constitutional Court

(Verfassungsgerichtshof) within six weeks.

In the Ministry's opinion, the applicants did not appear

interested in pursuing the asylum proceedings, for neither the

applicants nor their lawyer had explained their absence at the hearing

on 8 May 1992. The Ministry therefore relied exclusively on the

applicants' statements made at Vienna airport.

The Ministry further found that in their statements at Vienna

airport the applicants had not referred to any particular religious,

ethnic, political or armed group in Sri Lanka to which they belonged.

They had furthermore stated that they were not wanted by the

authorities. Thus, it was extremely improbable that upon return to

their home country they would be persecuted or, as the applicants had

stated, arrested.

The Ministry noted in this context that the applicants had left

Sri Lanka from the only airport which was under Government control. The

applicants would not have been able to leave the country in such a

manner if they were threatened with persecution. The fact that the

applicants generally referred to a war in their country did not

suffice.

Relevant domestic law

According to Section 5 para. 1 of the Austrian Asylum Act

(Asylgesetz) a person requesting asylum has the right to stay in the

country until the final decision in the asylum proceedings has been

given, provided the request is filed within two weeks after arrival in

Austria.

Section 5a of the Aliens Police Act (Fremdenpolizeigesetz) in

force since 1 January 1991 states, insofar as relevant:

"(1) Whoever has been placed in detention, or is detained,

awaiting expulsion is entitled to appeal to the independent

Administrative Tribunal, alleging the illegality of arrest and

detention.

(2) The appeal can also be lodged with the authority who has

ordered, or is responsible for, the detention awaiting expulsion.

...

(4) If the applicant's detention has not already been terminated,

the authority with which the appeal has been lodged (para. 2)

must ensure that the appeal is brought before the independent

Administrative Tribunal within two days after it has been

received. The authority detaining the applicant must immediately

inform the independent Administrative Tribunal of the termination

of detention during the appeal proceedings.

(5) If the detention of the foreigner ends before the expiry of

the time-limit referred to in para. 4, the authority with which

the appeal has been lodged (para. 2) must without unnecessary

delay forward the appeal to the independent Administrative

Tribunal."

"(1) Wer in Schubhaft genommen oder angehalten wird, hat das

Recht, den unabhängigen Verwaltungssenat mit der Behauptung der

Rechtswidrigkeit der Festnahme oder Anhaltung anzurufen.

(2) Die Beschwerde kann auch bei der Behörde eingebracht werden,

die den Schubhaftbescheid erlassen hat oder der die Anhaltung

zuzurechnen ist.

...

(4) Die Behörde, bei der die Beschwerde eingebracht worden ist

(Abs. 2), hat dafür zu sorgen, dass diese, sofern die Anhaltung

des Beschwerdeführers nicht schon vorher geendet hat, dem

unabhängigen Verwaltungssenat spätestens zwei Tage nach dem

Einlangen vorliegt. Die Behörde, die den Beschwerdeführer

anhält, hat dem unabhängigen Verwaltungssenat ein Ende der

Anhaltung während des Beschwerdeverfahrens unverzüglich

mitzuteilen.

(5) Hat die Anhaltung des Fremden hingegen schon vor Ablauf der

Frist des Abs. 4 geendet, so ist die Behörde, bei der die

Beschwerde eingebracht worden ist (Abs. 2), verpflichtet, die

Beschwerde dem unabhängigen Verwaltungssenat ohne unnötigen

Aufschub vorzulegen."

Section 5a para. 6 (2) requires the independent Administrative

Tribunal to decide within one week, "except if the detention of the

foreigner would have ended before" ("es sei denn, die Anhaltung des

Fremden hätte vorher geendet").

According to Section 13a of the Aliens Police Act, execution of

an expulsion is inadmissible if there are pertinent grounds that the

person concerned will suffer in particular inhuman treatment.

Section 9 para. 1 of the Austrian Act on the Service of Documents

(Zustellgesetz) provides that, if a person living in Austria is

authorised to receive documents from an authority, the latter must as

a rule determine this person as the addressee. If this is not the

case, the document is regarded as having been served on the date when

the person authorised to receive the document actually received it.

COMPLAINTS

The applicants complain under Article 3 of the Convention that

they would be subjected to inhuman or degrading treatment if they were

to be returned to Sri Lanka. All applicants submit in identical terms

that they left Sri Lanka as they feared persecution. In this respect

they allege a massacre by Sri Lankan soldiers of the Tamil population.

They submit that as a member of the Tamil minority there would be an

immediate danger for the applicants' health and life. The applicants

refer to the situation of other Tamils who were sent back to Sri Lanka.

The applicants fear that while in Austria they will be detained

and then deported as the decision on deportation may be enforced with

immediate effect.

They also fear that, if expelled to Italy, they would immediately

be sent to Sri Lanka. They submit that, like others, they will be

treated as "deportees in transit". They deny that they could have

requested asylum in Rome where they had landed before arriving in

Vienna.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 11 April 1991 and registered

on 19 April 1991.

On 19 April 1991 the Commission decided not to give an indication

under Rule 36 of its Rules of Procedure. The Commission further

decided to communicate the application with a request for information

to the respondent Government according to Rule 48 para. 2 (a) of the

Rules of Procedure.

The Government submitted their information on 13 May 1991, and

the applicants replied on 27 May 1991.

On 11 July 1991 the Commission decided to communicate the

application to the respondent Government and invite them to submit

written observations on the admissibility and merits of the

application.

Following a request by the Government, the Commission decided on

13 September 1991 to prolong the time-limit for the Government to

submit their observations.

The Government's observations were submitted on 4 December 1991,

and the applicants' observations in reply on 20 February 1992.

On 31 August 1992 the Commission decided again to communicate the

application.

The Government's further observations were submitted on

19 October 1992 and the applicants' observations on 23 November 1992.

THE LAW

1. The applicants complain under Article 3 (Art. 3) of the

Convention that they would be subjected to treatment contrary to that

provision if they were expelled to Sri Lanka. The applicants fear

that, if expelled to Italy, they will also be deported to Sri Lanka.

Article 3 (Art. 3) of the Convention states:

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

degrading treatment or punishment."

In the applicants' view, there is an obvious danger that they

will be expelled to the country from which they entered Austria, i.e.

Italy, without consideration of any ban on expulsion to Sri Lanka. In

Italy, however, they would be in transit and for that reason have no

possibility to apply for asylum there.

In the applicants' submissions an appeal against the decisions

of the Federal Ministry of the Interior of 14 July 1992 would have been

ineffective. Reference is made here to the fact that in their

proceedings the revised Asylum Act of 1991 was applied. In applying

this law the Federal Ministry of the Interior had concluded that the

applicants had failed to demonstrate individual acts of persecution.

As a result, a further appeal would have had no prospects of success

as the revised law was considerably stricter with respect to the

granting of refugee status.

The applicants further point out that in almost all cases where

a person is to be deported under the Asylum Act, the Aliens Police do

not grant suspensive effect to an appeal which has been lodged.

Moreover, in almost all cases the authorities regularly order the

person's detention pending deportation. However, the persons detained

who mostly have no written or oral command of German are unable to

appeal against the orders made by the authorities.

The Government submit the applicants failed to file an appeal

against the decisions of the Ministry of the Interior of 14 July 1992.

They have therefore failed to exhaust domestic remedies within the

meaning of Article 26 (Art. 26) of the Convention.

The Government further note that the applicants have now lost

their provisional right to stay in Austria and must leave. If they

fail to do so, the Aliens Police will order their expulsion. An appeal

under the Asylum Act against the order has suspensive effect. Should

the applicants not comply with the order, they would have to be taken

into custody with a view to deportation under Section 5 of the Aliens

Police Act. In these circumstances, the applicants could complain to

the independent Administrative Tribunal under Section 5a of the Aliens

Police Act.

The Government submit that the applicants can invoke Articles 2

and 3 (Art. 2, 3) of the Convention at any stage of the proceedings.

The Government refer to Section 13a of the Asylum Act.

2. The Commission recalls that the right of an alien to reside in

a particular country is not as such guaranteed by the Convention.

However, expulsion may in exceptional circumstances involve a violation

of the Convention, for instance where there is a serious fear of

treatment contrary to Article 2 or 3 (Art. 2, 3) of the Convention (see

No. 10564/83, Dec. 10.12.84, D.R. 40 p. 262; mutatis mutandis

Eur. Court H.R., Soering judgment of 7 July 1989, Series A no. 161,

p. 32 et seq., para. 81 et seq.).

In the present case the applicants submit that, if expelled from

Austria, they will be sent to Italy. As in Italy they will have no

possibility of applying for asylum, they will be sent to Sri Lanka

where they will be subject to measures of persecution contrary to

Article 3 (Art. 3) of the Convention.

3. The Commission notes that the fourth and seventh applicants

currently reside in France and do not risk expulsion from Austria.

They can therefore no longer claim to be victims of a violation of the

right invoked within the meaning of Article 25 (Art. 25) of the

Convention. In respect of these applicants, the application is

therefore inadmissible under Article 27 para. 2 (Art. 27-2) of the

Convention.

4. As regards the remaining applicants, the Commission recalls that

under Article 26 (Art. 26) of the Convention it may only deal with a

matter "after all domestic remedies have been exhausted, according to

the generally recognised rules of international law".

In the present case the decisions of the Federal Ministry of the

Interior of 14 July 1992 refused the applicants' requests for asylum

on the ground that it was extremely improbable that, upon their

expulsion, they would suffer ill-treatment in their home country. The

decisions also stated that appeals could be filed with the

Administrative or the Constitutional Court within a time-limit of six

weeks.

In the applicants' submissions such appeals would have had no

prospects of success under the revised Asylum Act which is considerably

stricter with respect to the granting of refugee status.

It is true that according to the Commission's case-law an

applicant may be dispensed from raising a complaint before the domestic

courts if there is well established domestic case-law showing the

futility of an appeal (see No. 10027/82, Dec. 5.12.84, D.R. 40 p. 100).

However, in the Commission's opinion the applicants have not

demonstrated that the revised Asylum Act has been interpreted by the

Constitutional and Administrative Courts so as to exclude in such cases

the possibility of granting refugee status.

As a result, the applicants have failed to substantiate that the

appeals at their disposal lacked sufficient prospect of success. They

have not therefore complied with the requirement as to the exhaustion

of domestic remedies, and this part of the application must be rejected

under Article 27 para. 3 (Art. 27-3) of the Convention.

5. In any event, the application would also be inadmissible as being

manifestly ill-founded for the following reasons.

The applicants complain that in Sri Lanka they would be subjected

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

submit that the Sri Lankan army has committed massacres among the Tamil

population and that, upon their return, they would also be persecuted.

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) of the

Convention (see Eur. Court H.R., Vilvarajah and others judgment of 30

October 1991, Series A no. 215, p. 37, para. 111).

In the present case, the applicants have not referred to any

concrete incidents which would demonstrate that before their departure

from Sri Lanka they had been subjected individually to treatment

contrary to Article 3 (Art. 3) of the Convention. They have

furthermore not provided any concrete evidence indicating that upon

their return they would be subjected to such treatment. Indeed, the

Commission notes that in their applications to the Commission all

applicants raised their complaints under Article 3 (Art. 3) of the

Convention in identical terms.

The Commission finds therefore that the applicants have failed

to show that they would face a real risk of being subjected to

treatment contrary to Article 3 (Art. 3) of the Convention if expelled

to Sri Lanka.

In respect of the remaining applicants the application would

therefore also have to be declared inadmissible as being 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 Commission President of the Commission

(H.C. Krüger) (C.A. Nørgaard)

ANNEX

List of applicants

1. C.R. born in 1971

2. S.T. born in 1966

3. T.T. born in 1955

4. M.S. born in 1973

5. I.S. born in 1965

6. R.I. born in 1964

7. M.J. born in 1970

8. J.R. born in 1950

9. K.M. born in 1965

10. S.P. born in 1968

11. M.P. born in 1971

12. K.J. born in 1969

13. J.J. born in 1971

14. P.V. born in 1970

15. P.S. born in 1960

16. A.N. born in 1971

17. M.V. born in 1954

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C.R. AND OTHERS v. AUSTRIA

C.R. AND OTHERS v. AUSTRIA

LEXI