CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 2 septembre 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. 22178/93                       by Dilaver, Miradije, Gjuzela,                       Ajhan, Sejhan and Erhan DAFEROFSKI                       against Germany         The European Commission of Human Rights (First Chamber) sitting in private on 2 September 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                  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 2 June 1993 by Dilaver, Miradije, Gjuzela, Ajhan, Sejhan and Erhan DAFEROFSKI against Germany and registered on 8 July 1993 under file No. 22178/93;         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 they have been submitted by the applicants, may be summarised as follows.         The applicants, a married couple - both born in 1957 - and their four children, born between 1977 and 1979, are nationals of former Yugoslavia and of Macedonian origin.   They belong to the community of Roma.   Before the Commission, they are represented by Mr. R. Klever, a lawyer practising in Hamburg.         On 22 May 1988 the applicants entered the territory of Germany.         On 6 February 1989 the Federal Office for Political Refugees (Bundesamt für die Anerkennung ausländischer Flüchtlinge) dismissed their request for political asylum.   The   Office noted in particular that, when heard in January 1989, the applicants had indicated that they did not have any employment in Yugoslavia and could not send their children to school, and that they had suffered disadvantages as members of the Roma community.   However, they had not faced any problems with the police or other public authorities.   The Office concluded that the applicants had not left their home country as political refugees, but as emigrants in order to improve their living conditions.   In this respect, the Office had regard to information provided by the Foreign Office and an opinion by the Institute for Eastern European Law at the Cologne University according to which there was no open or publicly furthered discrimination against members of the Roma community.   The applicants' appeals remained unsuccessful, and the proceedings were terminated in 1990.         On 20 June 1991 the Federal Office for Political Refugees, having again heard the applicants, dismissed their second request for political asylum (Asylfolgeantrag) dated June 1990.         On 16 July 1991 the Head of the Lauenburg County Administration (Landrat) requested the applicants to leave Germany and ordered their deportation.   The applicants' request for interim measures was dismissed by the Schleswig Holstein Administrative Court (Verwaltungs- gericht) on 8 August 1991.         On 4 November 1991 the Schleswig Holstein Administrative Court dismissed the applicants' claim to be recognised as political refugees and their action to have the decision of 16 July 1991 set aside.   The Administrative Court found that the applicants' failed to show that they were persecuted for political reasons.   The Court noted in particular that the applicants, in their reasons regarding their second request for asylum, had submitted that they had joined an organisation in Germany fighting for residence rights for members of the Roma community, that they had participated in meetings of this organisation and also publicly criticised the situation in Yugoslavia, and that members of the Yugoslav Consulate had taken photographs on the occasion of demonstrations.   The Court found that these submissions, even assuming that they were in themselves conclusive, were at variance with their submissions upon their second hearing before the Federal Office for Political Refugees.         On 2 March 1993 the Schleswig Holstein Administrative Court dismissed the applicants' request for interim measures to stop their deportation and for provisional residence permits (Duldungen).         On 6 May 1993 the Schleswig Holstein Administrative Court of Appeal (Oberverwaltungsgericht) dismissed the applicants' appeal (Beschwerde). The Court noted in particular that the applicants had not provided any information which had not already been considered in the Court's decision of 8 August 1991.   As regards the applicants' further submissions, the Court observed that the first applicant's illness in March/April 1993 did no longer hinder his travelling.         Appeal proceedings are apparently still pending.   COMPLAINTS   1.     The applicants complain under Article 3 of the Convention about the refusal of political asylum and the expulsion and deportation order issued against them.   They submit that, upon their return to Macedonia, they risk persecution as members of the Roma community.   2.     The applicants further complain under Article 8 of the Convention that, upon their deportation to Macedonia, they would not be in a position to find accommodation or to send the children to school.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 2 June 1993.   On 8 June 1993 the President of the Commission decided not to apply Rule 36 of the Commission's Rules of Procedure.   The application was registered on 8 July 1993.   THE LAW   1.     The applicants complain about the refusal of political asylum and the expulsion and deportation order, respectively.   They invoke Article 3 (Art. 3) of the Convention which states, so far as relevant:         "No one shall be subjected to torture or to inhuman or degrading       treatment or punishment."         The Commission recalls that no right of an alien to enter or to reside in a particular country is as such guaranteed by the Convention. However, the expulsion by a Contracting State of a foreigner 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, assuming exhaustion of domestic remedies within the meaning of Article 26 (Art. 26) of the Convention, notes that the German authorities, having regard to the applicants' submissions, found that they had emigrated from former Yugoslavia for personal reasons, and not as political refugees. Moreover, the authorities considered that the applicants failed to show that, due to their conduct during their stay in Germany, there were any reasons to fear political persecution upon their return to Macedonia.         The Commission therefore concludes that the applicants' submissions do not disclose any real risk that they would be subjected to ill-treatment contrary to Article 3 (Art. 3) upon their deportation to Macedonia.         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 Commission has further examined the applicants' complaint that the impugned decisions infringed their right to respect for their private and family life.   However, the decisions of the German authorities to expel and deport the applicants do not disclose any appearance of a violation of Article 8 (Art. 8) of the Convention.   In particular, there is no indication in the file that the family will be separated as a result of their deportation to Macedonia.   The alleged difficulties in finding accommodation and school facilities in Macedonia do not engage the responsibility of Germany under Article 8 (Art. 8) 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)