Resolution ResDH(2002)99 concerning the judgment of the European Court of Human Rights of 17 December 1996 in the case of Ahmed against Austria

(Adopted by the Committee of Ministers on 7 October 2002 at the 810th meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of former Article 54 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as “the Convention”),

Having regard to the judgment of the European Court of Human Rights in the Ahmed case delivered on 17 December 1996 and transmitted the same day to the Committee of Ministers;

Recalling that the case originated in an application (No. 25964/94) against Austria, lodged with the European Commission of Human Rights on 13 December 1994 under former Article 25 of the Convention by Mr Sharif Hussein Ahmed, a Somali national, and that the Commission declared admissible the applicant's complaint that his expulsion to Somalia would expose him to a serious risk of being subjected to treatment contrary to Article 3 of the Convention due to the lack of any public authority which would be able to protect him in the context of civil war and fighting between different clans for control of the country;

Recalling that the case was brought before the Court by the Commission on 11 September 1995;

Whereas in its judgment of 17 December 1996 the Court unanimously:

- held that it did not have jurisdiction to consider the applicant's complaints under Articles 5 and 13 of the Convention;

- held that for as long as the applicant faces a real risk of being subjected in Somalia to treatment contrary to Article 3 of the Convention there would be a breach of that provision in the event of the decision to deport him there being implemented;

- held that, as regards the non-pecuniary damage suffered by the applicant, this judgment in itself constituted sufficient just satisfaction for the purposes of former Article 50 of the Convention;

- held that the government of the respondent state was to pay the applicant, within three months, 150 000 Austrian schillings in respect of costs and expenses and that simple interest at an annual rate of 4% would be payable from the expiry of the above-mentioned three months until settlement;

- dismissed the remainder of the applicant's claims.

Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46, paragraph 2, of the Convention these Rules are applicable by decision of the Committee of Ministers to cases under former Article 54;

Having invited the government of the respondent state to inform it of the measures which had been taken in consequence of the judgment of 17 December 1996, having regard to Austria’s obligation under Article 46, paragraph 1 (former Article 53) of the Convention to abide by it;

Having satisfied itself that, on 5 March 1997, within the time-limit set, the government of the respondent state paid the applicant the sum provided for in the judgment of 17 December 1996,

Considering that, in accordance with the above-mentioned obligation under Article 46, paragraph 1, the authorities of the High Contracting Parties are furthermore required rapidly to take the necessary measures to remedy the consequences of the violations for the applicant and to prevent new violations of the Convention similar to those found in the Court's judgments;

Recalling, as regards the applicant's situation, that the Austrian Government made a formal commitment before the Committee not to implement the decision to deport the applicant to Somalia as long as he faced a real risk of being subjected to treatment contrary to Article 3 of the Convention and that this commitment was implemented on 20 March 1997 when the applicant was authorised to stay in Austria for an initial period up to 1 March 1998 (see paragraph 1 of the appendix to this resolution);

Regretting however the continued precarious situation of the applicant on the Austrian soil between 17 December 1996 and 15 March 1998, due notably to certain problems in providing him with a formal residence permit;

Noting that the Government deeply deplores the applicant's suicide in Austria on 15 March 1998 and expressing the Committee's profound regrets in this respect;

Having also considered the information provided by the Austrian Government concerning the general measures taken to prevent the risk of new violations similar to that at issue in the present case (see the appendix to this resolution),

Recalling with satisfaction that the Austrian judiciary speedily gave direct effect to the Ahmed judgment in their practice (see the Constitutional Court's judgment of 27 November 1997, B266/97; and the Supreme Administrative Court's judgment of 8 June 2000, 99/20/023-9) so as to prevent new similar violations of the Convention;

Welcoming in particular the most recent reform of Article 57 of the Aliens Act (based on Article 33 of the United Nation 1951 Convention relating to the Status of Refugees) in order to remedy the discrepancy between this provision and Article 3 of the European Convention on Human Rights, which grants individuals wider protection against expulsion in the circumstances similar to those of the present case;

Declares, after having taken note of the information supplied by the Government of Austria, that it has exercised its functions under Article 46, paragraph 2 (former Article 54) of the Convention in this case.

Appendix to Resolution ResDH(2002)99

Information provided by the Government of Austria during the examination of the Ahmed case by the Committee of Ministers

I. The applicant's situation in Austria after the judgment

1. It should be recalled that, following the delivery of the judgment of the European Court of Human Rights, the Government made a formal commitment before the Committee not to implement the decision to deport the applicant to Somalia as long as the applicant faced a real risk of being subjected to treatment contrary to Article 3 of the Convention and that this commitment was implemented on 20 March 1997, when the applicant was authorised to stay in Austria for an initial period up to 1 March 1998.

2. While the question of the extension of this period was being considered, the applicant committed suicide on 15 March 1998. The Government stresses that, having regard to the situation prevailing in Somalia in 1998, it was envisaged to extend the applicant's authorisation to stay in Austria. The Government deeply deplores the applicant's death.

II. General measures to prevent new similar violations:

Dissemination of the judgment:

3. The Ahmed judgment was given considerable publicity in Austria immediately after its delivery. In order to ensure that the competent authorities were adequately informed of their obligations under the Convention, the Government, between February and April 1997, ensured a broad dissemination of the judgment to the Ministry of Interior, the Asylum authorities and the domestic courts. The judgment was furthermore published in ÖJZ 1997, No. 6 ( Österreichische Juristenzeitung ) and ÖIMR Newsletter 1997, No. 1 ( Österreichisches Institut für Menschenrechte ), legal journals widely used in legal circles. Direct effect of the judgment in the domestic law 4. The domestic courts and authorities rapidly gave direct effect to the judgment. They notably accepted the European Court's assessment of the situation in Somalia and granted effective protection of persons running a risk of treatment contrary to Article 3 in that country, and, indeed, also in other countries with similar situations (see the Constitutional Court's judgment of 27 November 1997, B266/97 and the Supreme Administrative Court's judgment of 8 June 2000, 99/20/023-9). The Austrian supreme judicial organs have thus been playing a crucial role in preventing new violations similar to the one at issue in the Ahmed case. Legislative reform 5. With a view to reflecting the Convention's requirements, as evidenced by the Ahmed judgment, in Austrian legislation, Parliament adopted on 9 July 2002 an amendment to Article 57 of the Austrian Aliens Act of 1997 (previously Article 37 in the Aliens Law of 1992), which was at the basis of the violation at issue in the Ahmed case (see paragraph 21 in fine of the judgment). The newly introduced provision reads as follows (Article 57, paragraph 1): "Refusal of entry, expulsion or deportation of an alien to another state are unlawful if they would lead to a violation of Articles 2 and 3 of the European Convention on Human Rights or of its Protocol No.6 on the abolition of death penalty". The amendment was published in the Official Gazette on 13 August 2002 (BGBl. I/No.126/2002) and will enter into force on 1 January 2003.

6. This amendment explicitly integrates in the legislation, inter alia , the specific requirements of Article 3 of the European Convention which grants individuals a protection wider than that provided by Article 33 of the United Nation 1951 Convention, relating to the Status of Refugees (see paragraphs 40-41 of the Ahmed judgment). As a result of this amendment, the activities of an individual in the applicant's situation, however undesirable or dangerous, can thus not justify his or her expulsion when this would lead to a risk of treatment incompatible with Article 3 of the ECHR, and this irrespective of whether the threat is imputable to the state or results from the absence of state authority.

7. The Government concludes that the aforementioned measures will prevent new violations of Article 3 similar to that here at issue and that Austria has thus complied with the Court's judgment in the Ahmed case as required by Article 46§1 of the Convention.