CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 14 mai 1987

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  AS TO THE ADMISSIBILITY OF   Application No. 12437/86 by G.M. against the Federal Republic of Germany             The European Commission of Human Rights sitting in private on 14 May 1987, the following members being present:                         MM. C.A. NØRGAARD, President                         J.A. FROWEIN                         G. TENEKIDES                         S. TRECHSEL                         B. KIERNAN                         A.S. GÖZÜBÜYÜK                         A. WEITZEL                         J.C. SOYER                         H.G. SCHERMERS                         H. DANELIUS                         G. BATLINER                         H. VANDENBERGHE                    Mrs   G.H. THUNE                    Sir   Basil HALL                    Mr.   F. MARTINEZ                      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 9 October 1986 by G.M. against the Federal Republic of Germany and registered on 9 October 1986 under file No. 12437/86;           Having regard to:   -        the first report of October 1986 provided for in Rule 40 of         the Rules of Procedure of the Commission;   -        the Commission's decision of 10 October 1986 to give         precedence to the application under Rule 27 in fine of the         Commission's Rules of Procedure as well as to bring the         application to the notice of the parties and to invite them under         Rule 42 para. 2 (a) to submit further information on the case;   -        the information submitted by the respondent Government on         26 November 1986;   -        the second report of November 1986 provided for in Rule 40 of         the Rules of Procedure of the Commission;   -        the Commission's decision of 3 December 1986 to request the         applicant to comment on the information submitted by the         Government;   -        the applicant's comments of 23 December 1986 and         19 January 1987;   -        the third report of January 1987 provided for in Rule 40 of         the Rules of Procedure of the Commission;   -        the Commission's decision of 19 January 1987 to bring the         application to the notice of the respondent Government and to         invite them under Rule 42 para. 2 (b) of the Rules of Procedure         of the Commission to submit written observations on the         admissibility and merits of the application;   -        the observations submitted by the respondent Government on         16 March 1987 and the observations in reply thereto submitted         by the applicant on 15 April 1987;   -        the fourth report of April 1987 provided for in Rule 40 of the         Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:   THE FACTS           The applicant, a stateless Palestinian from the Lebanon born in 1926, is currently residing in Berlin.   Before the Commission the applicant is represented by Ms.   Heidemarie Bischoff-Pflanz.   I.           The applicant states that she has no relatives left in the Lebanon.    There she resided in the Ain-el-helweh camp near Saida where she has been registered since 1948.   The house which she had built was destroyed after the Israeli invasion in 1982.   Thereafter, she again lived in a tent.   All her children had also lived in the camp.   No other possibilities of residence exist.   In particular, Palestinians are not allowed to live outside the camps or in another camp where they are not registered and the UNRWA (United Nations Relief and Works Agency for Palestine Refugees) cannot assure their safety.   In any event, the applicant has no relatives in other camps. The Lebanese Government is also not in the position to afford her the necessary protection since the country is currently being ruled by various competing militias.           As regards the applicant's family, a blind daughter has been abducted in the Lebanon and is since missing.   One son, born in 1954, was in Israeli captivity.   When in 1986 he was brought to the Lebanese border, he was killed, presumably by the Amal militia.           The son Ahmad Mohammad, born in 1962, lives in Berlin.   He had a residence permit which was valid until 10 February 1987.   He is almost blind and suffers from diabetes.   His residence permit, which was due to expire on 10 February 1987, has been extended.           The daughter Amné Mohammad, born in 1963, also lives, at a different address, in Berlin.   The applicant is currently residing with this daughter, who has three children, born in 1981, 1982 and 1986 respectively, and does not possess a residence permit.   As the applicant points out, this daughter is married to a Palestinian though the marriage document is not accepted by the Berlin authorities.   She is currently pregnant.   While her application for asylum, filed in 1982, was pending, she was allowed to stay in Berlin.   Thereafter, her application was finally rejected.   This daughter was convicted in 1984 of theft and assault and sentenced to a prison sentence of eight months.   As her youngest child, born in 1986, was ill, she and her three children were not asked to leave the country immediately so that medical treatment needed by the child could be completed.   At present her residence is being provisionally tolerated on account of the changed situation in the Lebanon.   The daughter was also sentenced on 15 May 1986 for theft to two months' imprisonment on probation.           The daughter Fatma Issa, born in 1956, who arrived in the Federal Republic of Germany in 1979, lives with her husband, a Palestinian, and three children in Wuppertal.   In 1981 this daughter withdrew her application for asylum.   The family is permitted to remain in the Federal Republic of Germany on humanitarian grounds. The last decisions permitting this residence are valid until 25 May 1987.           The son Omar Mohammad, born in 1968 in Ain-e-helwe, came to the Federal Republic of Germany in 1979 and voluntarily returned to the Lebanon in 1983.   He returned to West Berlin with his mother, the applicant, on 2 February 1986.   He now lives with the Issa family in Wuppertal where he is involved in subsequent application proceedings (Folgeantragsverfahren).           As far as the applicant, who is illiterate, can remember, the further family situation is as follows:           The son Kerim Mohammad, born in 1942, has been living in Berlin since 1973.   He is married with a Palestinian and has eight children.   His request for asylum has been rejected and his expulsion is temporarily suspended (Duldung).   He intends to apply again for permission to stay.           The daughter Faouzie Al Tahar, born in 1948, lives with her husband, a Palestinian, and five children in Berlin.   Her expulsion has also been temporarily suspended.           The daughter Fathiye Al Taha, born in 1944, lives with her husband, a Palestinian, and eight children in Pirmasens in Germany. Her expulsion has been temporarily suspended.           The daughter Souad Khalil Ayyache, born in 1956, lives with her husband, a Palestinian, and four children, at a different address in Pirmasens.   Her expulsion has also been temporarily suspended.   II.           The applicant arrived for the first time in West Berlin on 28 July 1977 and applied for political asylum on 3 August 1977.   She withdrew that application on 12 September 1977 and returned to the Lebanon on 15 September 1977.   Later, when making her second application for asylum, in November 1978, the applicant stated that in 1977 she had been in Berlin on a visit.           On 10 November 1978, she returned to West Berlin, where she made a second application for asylum on 23 November 1978.   She then returned to the Lebanon on an unknown date, travelling again to West Berlin on 23 September 1979, the validity of her travel document having been extended in Beirut on 11 September 1979.   On 23 May 1980 the Federal Office responsible for the Recognition of Foreign Refugees (Bundesamt für die Anerkennung ausländischer Flüchtlinge) rejected her application for asylum on the following grounds:           "The applicant has not provided sufficient evidence in support         of her case for asylum.   She did not attend the preliminary         examination at the Federal Office, despite having been         properly summoned and told of the consequences of failure to         attend.   ...   The danger to her does not stem from persecution         by Lebanese Government authorities, but from the existence of         a virtual civil war in the Lebanon."           On 26 September 1980, the applicant was asked to leave the country.   She appealed against both this and the decision of 23 May 1980.   However, on 9 February 1983, she withdrew her application for asylum and declared that he would voluntarily return to the Lebanon if the Berlin Welfare Office (Sozialhilfe) would meet the cost of her journey.   She returned to the Lebanon the same day.           On 12 October 1983, the applicant again arrived in West Berlin, making her third request for asylum on 14 October 1983.   She withdrew that request on 6 April 1984 and voluntarily left for Damascus (Syria) with her son Omar on 29 April 1984.   The authorities had not at that stage requested her to leave the country.   In Damascus, the applicant had two sisters, one of whom has meanwhile died.   Thereafter, she spent some time living with one of her sons and some time in hospital in Beirut.           It appears that the applicant's last residence in the Lebanon after her return in 1984 was again in the Ain-el-helweh camp.           The applicant realised that her son would not be released. The situation in the Ain-el-helweh camp became increasingly dangerous when it was bombed by the Israeli air force and attacked by the Amal militia.   The latter apparently control the camp and have set themselves the aim to drive away the Palestinians.   The inhabitants of the camp cannot therefore rely on the protection by the Amal militia.           In order to save her life and her bodily integrity the applicant again returned to Berlin.   With the help of friends she managed to undertake the dangerous voyage to Beirut during which she had constantly to undergo controls by the various militia.   III.           On 2 February 1986, the applicant and her son Omar again arrived in West Berlin, and on 5 February 1986 she made her fourth request for political asylum.           On 17 April 1986, a hearing took place before the Berlin Aliens' Authority, which rejected her application for asylum in accordance with Section 14(1) and Section 10(1) and (2) of the Asylum Procedure Act (Asylverfahrensgesetz).   She was also requested to leave the country and threatened with deportation.           Her subsequent action was rejected by the Berlin Administrative Court (Verwaltungsgericht) on 7 October 1986.   Already on 27 May 1986 the Berlin Administrative Court and, on 17 July 1986, the Berlin Administrative Court of Appeal (Oberverwaltungsgericht) had decided not to endow the action with suspensive effect.           On 7 October 1986 the applicant underwent an official medical examination in order to assess her fitness to travel.   The respective police doctor concluded that she was in a position to travel to the Lebanon by air, provided that she was accompanied.           However, in view of the situation in the Lebanon the West Berlin authorities have meanwhile decided for an indefinite period not to deport Palestinians to the Lebanon.   The applicant falls within the scope of this decision, and her stay is currently being tolerated.   COMPLAINTS             The applicant originally complained under Article 3 of the Convention of the proposed execution of the expulsion order.   She submitted that the exact date would be fixed once she had been arrested for this purpose, and that this measure was imminent.   The applicant would have no other choice than to attempt to reach the Ain-el-helweh camp where she would again be subjected to the above mentioned dangers.   Thus, in July 1986 the Israeli air force again bombed the camp which continues to be surrounded by the Amal militia. As a result, it is not the Lebanese Government but autonomous groups which will subject her to inhuman treatment contrary to Article 3 of the Convention.           In support of her application the applicant has submitted, inter alia, a letter of the deputy representative of the Branch Office in the Federal Republic of Germany of the United Nations High Commissioner for Refugees of 13 August 1986.   Therein, the deputy representative urgently requests the Regional Inhabitants' Registration Office to reconsider its decision to expel the applicant, who has "apparently been recognised as a UNRWA-refugee", in view of the special circumstances of the case, the situation in the Lebanon and the existing dangers to body, life and freedom of the applicant.       PROCEEDINGS BEFORE THE COMMISSION             The application was introduced by telex on 9 October 1986 and registered on the same day.           On 10 October 1986 the Commission, while not applying Rule 36 of the Commission's Rules of Procedure, decided to request the parties to submit further information on the case under Rule 42 (2)(a) of the Rules of Procedure.           On 14 October 1986 the Agent of the respondent Government informed the Commission of her Government's position in respect of the applicant's representation.           On 16 October 1986 the applicant submitted her reply to the questions put to her under Rule 42 (2)(a).   On 27 October 1986 the applicant commented on the Government's telex of 14 October 1986.           The Government's information dated 26 November 1986 was received on 1 December 1986.           On 3 December 1986 the Commission decided to request the applicant to comment on the information submitted by the Government. The applicant submitted her comments on 23 December 1983.           On 19 January 1987 the Commission decided to bring the application to the notice of the respondent Government and to invite them under Rule 42 para. 2 (b) of the Rules of Procedure of the Commission to submit written observations on the admissibility and merits of the application.           The Government's observations were submitted on 16 March 1987 and the applicant's observations in reply on 15 April 1987.     SUBMISSIONS OF THE PARTIES     A.       The respondent Government     1.       The Government submit that the applicant is a person who has been shuttling to and from her homeland or her previous place of residence and has therefore herself shown that she is not subject to any persecution there.           In principle, the Land of Berlin examines every case individually before deportation is ordered and enforced.   The situation in the Lebanon is under constant study.   Accordingly, the only people deported to the Lebanon are those for whom any dangers, which exist to their lives and freedom, are not appreciably greater than those faced by everyone in the Lebanon or by all members of the ethnic or religious group to which the foreign deportee belongs. Nobody is deported to areas of fighting.           Insofar as the applicant is represented before the Commission by the chairperson of the Alternative List Fraction of the Berlin Diet, the respondent Government regard it as essential that the applicant is represented by a lawyer according to the laws of the Federal Republic of Germany.   2.       In the Government's view it need not be decided whether the situation in certain regions of the Lebanon, which is similar to that prevailing in a civil war, and the circumstances in which Palestinians are living there, can be regarded as raising an issue under Article 3 of the Convention.   The competent Berlin authorities as well as the other Land Governments have on humanitarian grounds imposed a stop on deportation owing to the present circumstances in the Lebanon.   In other words, in view of the changed situation in the Lebanon, it has been decided for an indefinite period not to deport Palestinians to the Lebanon.   According to a decision of the Minister for Home Affairs of the Land Berlin this now includes persons who have committed a criminal offence as well as the so-called "shuttlers".   Both groups were previously excluded from the suspension of deportation.   The residence of such persons is now being tolerated until further notice.           The applicant falls within the scope of this decision. Regardless of the place to which the applicant would go if she returned to the Lebanon, she is in any case in no danger of being treated in a manner incompatible with Article 3 of the Convention until the situation in the Lebanon improves.   Rather, her further stay in West Berlin will continue to be tolerated.           A renewed request to leave the country and its possible execution can only be contemplated in an indeterminate future when the situation in the Lebanon has improved and the applicant can return without danger to her life or physical security.   Against such an administrative order, which will be made on the basis of an examination of the individual circumstances, the applicant will be able to avail herself of the usual legal remedies.           Her application on the basis of Article 3 of the Convention is therefore manifestly ill-founded.   3.       The Government further observe that none of the applicant's above-mentioned relatives have been recognised as entitled to political asylum in the Federal Republic of Germany.   They are only tolerated there on humanitarian grounds owing to the situation in the Lebanon.   It may therefore be assumed that when that situation improves, they, too, will have to return.   In any event, they are free to leave the country voluntarily with the applicant if they so desire. As a result, regardless of whether the applicant at the moment still has close relatives in the Lebanon, she would not have to live alone in the Lebanon separated from all her relatives if she returned there in the future.           The application is therefore also on this ground manifestly ill-founded.     B.       The applicant     1.       The applicant submits that an individual examination by the authorities of cases like the present one does not take place.   It is only routinely (formularmässig) determined that the person concerned is a so-called shuttler.   Three Palestinians are mentioned as examples of persons who have nevertheless been expelled to Beirut in November 1986.           As regards the issue of representation, the applicant submits that Article 26 para. 2 of the Commission's Rules of Procedure permits the representation of applicants also by persons other than lawyers.   2.       The applicant submits further that, even if her stay in West Berlin is now being tolerated, at the moment for a further three months, the original deportation order has not been cancelled and can at any time be executed.   The Senator for the Interior has ordered in respect of deportation warnings which have already been issued that they must be cancelled if administrative proceedings are pending.           The present application continues to be relevant since Article 3 of the Convention grants a right to the applicant not to be deported to the Lebanon, and the Government have only submitted that her stay will be tolerated on humanitarian grounds.   Moreover, the applicant submits a report of the organisation "medico international" according to which there may be a danger of inhuman treatment and torture for Palestinians in the Lebanon also in areas where there is no acute fighting.   For instance, the applicant's daughter was abducted at a time when there was an official armistice.   THE LAW           As a preliminary point the Commission notes that the respondent Government have called in question the validity of the applicant's representation before the Commission in as much as her representative is not a lawyer.   The applicant submits that persons other than lawyers may represent applicants under Rule 26 of the Commission's Rules of Procedure which states:           "Any such applicant may appoint, and be represented in         proceedings before the Commission by, a lawyer or any         other person, resident in a Convention country, unless         the Commission at any stage decides otherwise."           However, the Commission finds it unnecessary to resolve this issue since the application is in any event manifestly ill-founded for the following reasons.           The applicant has complained of her proposed expulsion to the Lebanon.   She submits that she has no other choice than to live in the Ain-el-helweh camp where she is registered.   However, that camp is subjected to attacks by the Israeli air force and the Amal militia surrounding the camp.   Her expulsion to the Lebanon would thus amount to inhuman treatment contrary to Article 3 (Art. 3) of the Convention.   If the applicant's stay in West Berlin is currently being tolerated on humanitarian grounds, this does not mean that the deportation order concerned could not at any time be executed.           The Government submit that the competent Berlin authorities have decided on humanitarian grounds, owing to the present circumstances in the Lebanon, for an indefinite period not to deport Palestinians to the Lebanon.   This also includes persons who have committed a criminal offence as well as the so-called "shuttlers". Accordingly, the applicant is in no danger of being treated in a manner incompatible with Article 3 (Art. 3) of the Convention until the situation in the Lebanon improves.   Her further stay in West Berlin will continue to be tolerated.   If and when a new administrative order of deportation should be made in an indeterminate future, the applicant will be able to avail herself of the usual legal remedies.           Article 3 (Art. 3) of the Convention forbids, inter alia, inhuman or degrading treatment, and the Commission has consistently held that the expulsion or extradition of a person could, in certain exceptional circumstances, involve a violation of Article 3 (Art. 3) where there is serious reason to believe that the person to be expelled or extradited will be subjected to treatment prohibited by the Article in the receiving country (see No. 8581/79, Kilic v. the United Kingdom, Dec. 6.3.80, D.R. 29 p. 48).           In the present case the Commission notes that the dangers alleged by the applicant upon her return to the Lebanon, arise, in part, not from Government authorities but from autonomous groups.   The Commission recalls its previous case-law in which it left open the question whether, in examining a case of this kind from the standpoint of Article 3 (Art. 3), it may take into account an alleged danger arising, not from public authorities, but from autonomous groups (see No. 8581/79, ibid.).           Even assuming that in the present case an alleged danger arising from autonomous groups may be taken into account, the Commission observes that in view of the situation in the Lebanon the West Berlin authorities have decided, for an indefinite period of time, not to deport Palestinians to the Lebanon, and the applicant's stay in West Berlin is currently being tolerated.           This information has been confirmed by the applicant. However, the applicant has called in question the Government's further submissions according to which, should she be requested to leave the country in the indeterminate future, she may again avail herself of the normal domestic remedies.   The applicant contends in particular that the original deportation warning may at any time be executed.           The Commission observes, on the one hand, that the applicant has not substantiated her allegation that the original deportation order may at any time again be executed.   She has in particular not shown that, should her toleration (Duldung) be repealed, she would be unable to avail herself of the normal remedies under German law.           On the other hand, the Commission is satisfied that the assurances of the respondent Government provide sufficient guarantee that the applicant, whose stay in the Federal Republic of Germany is currently being tolerated, can again avail herself of remedies under German law, should her toleration be repealed.           As a result, there is at present no serious reason to believe that the applicant will be subjected to treatment prohibited in Article 3 (Art. 3) of the Convention.   In these circumstances, and in particular in view of the Government's assurances, the Commission considers that the applicant can no longer claim to be a victim of the alleged violation within the meaning of Article 25 (Art. 25) of the Convention. It follows that the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.           For these reasons, the Commission           DECLARES THE APPLICATION INADMISSIBLE.     Secretary to the Commission                 President of the Commission                (H.C. KRÜGER)                              (C.A. NØRGAARD)