CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 29 juin 1994

.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. 23822/94                       by Tan Si LAM                       against Austria         The European Commission of Human Rights (First Chamber) sitting in private on 29 June 1994, 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                  G.B. REFFI                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV              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 21 February 1994 by Tan Si LAM against Austria and registered on 11 April 1994 under file No. 23822/94;         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 they have been submitted by the applicant, may be summarised as follows.         The applicant, a Vietnamese national born in 1966, resides in Hof (Austria).   Before the Commission he is represented by Mr. H. Pochieser, a lawyer practising in Vienna.         On 17 May 1991 the applicant arrived in Austria.   On 22 May 1991 he filed a request for asylum with the Baden District Administrative Authority (Bezirkshauptmannschaft).         On 23 May 1991 the Baden District Authority issued a deportation order (Ausweisungsbescheid) against the applicant.   It found that he had circumvented the border control when entering Austria.   Having further noted that the applicant had filed an asylum request, it decided that pending the proceedings on his asylum request the deportation order should not be enforced.   It also observed that an appeal against the deportation order had no suspensive effect.         On 28 May 1991 the applicant was questioned by the Public Security Authority of Niederösterreich (Sicherheitsdirektion) on his asylum request.   He stated that his parents had been landowners in Vietnam who had been expropriated by the Communists and subsequently extorted by the police.   In 1983 he had finished his secondary education but had not been admitted to University.   In May 1984 he had attempted to escape from Vietnam, but had been caught and committed to a reeducation camp, where he had stayed until August 1984.   By bribing officials he had obtained a travel and work permit for Czechoslovakia valid until 1992.   He had arrived in Czechoslovakia in 1987.   There he had participated in Catholic religious assemblies organized by fellow country-men, although he himself was not a Catholic.   The Czechoslovakian authorities therefore had seized his passport and intended to expel him to Vietnam on 20 May 1991.   For fear of reprisals in his home country, he had come to Austria.         On 19 June 1991 the Public Security Authority dismissed his asylum request.   Referring to his statements of 28 May 1991 it found that the applicant was not a refugee within the meaning of the Geneva Refugee Convention.         On 24 March 1992 the Federal Minister for the Interior (Bundesminister für Inneres) dismissed the applicant's appeal.   The Minister found, inter alia, that the refusal to admit him to University did not amount to persecution as he had had the possibility to finish his secondary education and therefore had not been generally denied access to education institutions.   The fact that he had been committed to a reeducation camp in 1984 was not relevant as this had happened a long time ago.   Furthermore, he subsequently had obtained the permission to leave his country in order to work in Czechoslovakia. If the authorities of his home country would have intended to impose sanctions on him, they would not have allowed him to leave the country. The Minister also found that the applicant failed to substantiate the risk that he would face persecution for his participation in religious assemblies.   The Minister also noted that the United Nations High Commissioner for Refugees had been heard and had expressed a negative opinion as to his request for asylum.         On 29 September 1992 the Constitutional Court (Verfassungs- gerichtshof) refused to entertain the applicant's complaint against the Minister's decision and referred the case to the Administrative Court (Verwaltungsgerichtshof).         On 9 September 1993 the Administrative Court dismissed the applicant's complaint.   The Administrative Court conceded in particular that the fact that the applicant had evaded his expulsion by the Czechoslovakian authorities to Vietnam could constitute an offence under the Vietnamese Penal Code.   However the fear of being prosecuted for violation of provisions regulating the sojourn of Vietnamese nationals abroad was no sufficient reason for granting refugee status.   COMPLAINTS   1.     The applicant complains about the deportation order issued against him.   He submits that if expelled to Vietnam he will be prosecuted for failure to return at the expiry of his travel permit and that a prison sentence is likely to be imposed on him. He could even be admitted to a reeducation camp.   He invokes Articles 2, 3, 4, 5 and 6 of the Convention.   2.     The applicant further complains under Article 13 of the Convention that he had no efficient remedy to complain that his expulsion to Vietnam would violate his rights under the Convention. He submits that in the course of the asylum proceedings no decision was taken to which specific country he would be expelled after his unsuccessful asylum request and that therefore he has not been able to challenge the decision.   THE LAW   1.     The applicant complains under Articles 2, 3, 4, 5 and 6 (Art. 2, 3, 4, 5, 6) of the Convention about the deportation order issued against him.         The Commission has examined the applicant's complaint under Article 3 (Art. 3) of the Convention, which reads as follows:         "No one shall be subject to torture or to inhuman or       degrading treatment or punishment."         The Commission recalls that the Contracting States have the right to control the entry, residence and expulsion of aliens.   The right to political asylum is not protected in either the Convention or its Protocols (Eur. Court H.R., Vilvarajah and Others judgment of 30 October 1991, Series A no. 215, p. 34, para. 102).   However, expulsion by a Contracting State of an asylum seeker may give rise to an issue under Article 3 (Art. 3) of the Convention and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned would face a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the country to which he is to be expelled (ibid., para. 103).   A mere possibility of ill-treatment is not in itself sufficient (ibid., p. 37, para. 111).         The Commission observes that the Austrian police authorities refused the applicant's request for political asylum as they found that he had failed to substantiate a risk of being persecuted in Vietnam upon his return and that the United Nations High Commissioner for Refugees did not object to this finding of the authorities.         The Commission finds in particular that the risk of prosecution, upon his return to Vietnam for failure to return to Vietnam on the expiry of his travel permit, does not in itself constitute treatment contrary to Article 3 (Art. 3) of the Convention (cf. mutatis mutandis No. 11017/84, Dec. 13.3.86, D.R. 46 p. 181; No. 12364/86, Dec. 17.10.86, D.R. 50 p. 289).         Moreover, the Commission considers that the applicant has not shown any further serious risk of being prosecuted on other grounds or otherwise exposed to treatment prohibited by Article 3 (Art. 3) of the Convention.         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 applicant complains further under Article 13 (Art. 13) of the Convention that he had no efficient remedy to complain that his expulsion to Vietnam would violate his rights under the Convention.         The Commission recalls that Article 13 (Art. 13) of the Convention requires a remedy in domestic law only in respect of grievances which can be regarded as "arguable" in terms of the Convention (Eur. Court H.R., Powell and Rayner judgment of 21 February 1990, Series A no. 172, p. 14, para. 31).         The Commission, having regard to the above findings, considers that the applicant's submissions do not give rise to a prima facie issue under Article 3 (Art. 3) of the Convention, and thus cannot be considered to be an arguable claim.   Consequently, Article 13 (Art. 13) of the Convention does not apply in respect of the applicant's complaint under Article 3 (Art. 3) of the Convention.         It follows that this part of the application is also 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 First Chamber         President of the First Chamber        (M.F. BUQUICCHIO)                        (A. WEITZEL)