CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 7 septembre 1993

.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. 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)