CEDH · CASELAW;REPORTS;ENG — 22 mai 1995

.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 }                    EUROPEAN COMMISSION OF HUMAN RIGHTS                      Application No. 25661/94                            Makulu Nsangu                               against                               Austria                        REPORT OF THE COMMISSION                      (adopted on 22 May 1995)                          TABLE OF CONTENTS                                                             Page   I.    INTRODUCTION      (paras. 1-18). . . . . . . . . . . . . . . . . . . . . .1        A.    The application           (paras. 2-4). . . . . . . . . . . . . . . . . . . .1        B.    The proceedings           (paras. 5-13) . . . . . . . . . . . . . . . . . . .1        C.    The present Report           (paras. 14-18). . . . . . . . . . . . . . . . . . .2   II.   ESTABLISHMENT OF THE FACTS      (paras. 19-47) . . . . . . . . . . . . . . . . . . . . .4        A.    The particular circumstances of the case           (paras. 19-43). . . . . . . . . . . . . . . . . . .4        B.    The evidence before the Commission           (para. 44). . . . . . . . . . . . . . . . . . . . .7        C.    Relevant domestic law           (paras. 45-47). . . . . . . . . . . . . . . . . . .8   III. OPINION OF THE COMMISSION      (paras. 48-62) . . . . . . . . . . . . . . . . . . . . 10        A.    Complaint declared admissible           (para. 48). . . . . . . . . . . . . . . . . . . . 10        B.    Point at issue           (para. 49). . . . . . . . . . . . . . . . . . . . 10        C.    Article 3 of the Convention           (paras. 50-61). . . . . . . . . . . . . . . . . . 10             CONCLUSION           (para. 62). . . . . . . . . . . . . . . . . . . . 12   APPENDIX I   :   DECISION OF THE COMMISSION AS TO THE                ADMISSIBILITY OF THE APPLICATION . . . . . . 13   I.    INTRODUCTION   1.    The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.    The application   2.    The applicant is a Zairese citizen, born in 1967 and currently resident in Vienna. She was represented before the Commission by Mr. G. Liedermann, a lawyer practising in Vienna.   3.    The application is directed against Austria.   The respondent Government were represented by their Agent, Mr. F. Cede, Ambassador, Head of the International Law Department at the Federal Ministry of Foreign Affairs.   4.    The case concerns the applicant's complaint that her expulsion to Zaire would expose her to the risk of being arrested, tortured or even killed, on account of her husband's activities for an opposition party. The applicant invokes Article 3 of the Convention.   B.    The proceedings   5.    The application was introduced on 14 November 1994 and registered the same day.   6.    On 14 November 1994 the President of the Commission decided to apply Rule 36 of the Commission's Rules of Procedure. On 9 December 1994, 19 January, 2 March and 12 April 1995 the Commission decided to prolong the application of Rule 36.   7.    Also on 14 November 1994, the President of the Commission decided, pursuant to Rule 34 para. 3 and Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.   8.    The Government's observations were submitted on 30 November 1994. The applicant replied on 6 December 1994.   9.    On 9 December 1994 the Commission decided, pursuant to Rule 50 (a) of its Rules of Procedure, to invite the respondent Government to submit further observations on the admissibility and merits of the application.   10.   On 2 January 1995 the Government submitted their further observations, to which the applicant replied on 10 January 1995.   11.   On 19 January 1995 the Commission declared admissible the applicant's complaint that her expulsion to Zaire would expose her to a real risk of torture or inhuman treatment or punishment in that country. It declared inadmissible the remainder of the application.   12.   The text of the Commission's decision on admissibility was sent to the parties on 24 January 1995 and they were invited to submit such further information or observations on the merits as they wished. The applicant submitted further information and observations on 20 March 1995. The Government made no further submissions.   13.   After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.   In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.    The present Report   14.   The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:             MM.   C.A. NØRGAARD, President                C.L. ROZAKIS                E. BUSUTTIL                G. JÖRUNDSSON                S. TRECHSEL                A.S. GÖZÜBÜYÜK                A. WEITZEL                J.-C. SOYER                H.G. SCHERMERS           Mrs. G.H. THUNE           Mr.   F. MARTINEZ           Mrs. J. LIDDY           MM.   L. LOUCAIDES                J.-C. GEUS                M.P. PELLONPÄÄ                B. MARXER                M.A. NOWICKI                I. CABRAL BARRETO                N. BRATZA                I. BÉKÉS                J. MUCHA                E. KONSTANTINOV                D. SVÁBY                G. RESS                A. PERENIC                C. BÎRSAN   15.   The text of this Report was adopted on 22 May 1995 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   16.   The purpose of the Report, pursuant to Article 31 of the Convention, is:        (i)   to establish the facts, and        (ii) to state an opinion as to whether the facts found disclose           a breach by the State concerned of its obligations under           the Convention.   17.   The Commission's decision on the admissibility of the application is annexed hereto as Appendix I.   18.   The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.   ESTABLISHMENT OF THE FACTS   A.    The particular circumstances of the case   19.   In May 1990 the applicant came to Austria with her husband, who was employed as a cook at the Zairese embassy in Vienna.   20.   On 21 September 1992 the applicant's husband filed a request for asylum.   In accordance with S. 4 of the Austrian Asylum Act, this request was extended also to cover his wife, the applicant, and their two children, born in 1985 and 1987.   21.   On 7 October 1992 the Federal Office for Asylum (Bundesasylamt) rejected the request by the applicant's husband.   22.   Subsequently, the applicant's husband lodged an appeal with the Federal Ministry for the Interior (Bundesministerium für Inneres).   On 7 May 1993 the applicant's husband submitted a number of documents in support of his appeal:   -     a letter of 10 January 1993 from the Secretary General of the      Union for Democracy and Social Progress (Union pour la Démocratie      et le Progrès Social - UDPS) in Kinshasa to the Zairese Socialist      Party in Vienna, for the attention of its president, Mr. Ngongo,      informing the latter that the applicant's husband was an active      member of the UDPS and asking him to intervene in favour of the      applicant before the Austrian authorities;   -     a personal letter of 23 April 1993 from the First Secretary of      the Zairese embassy in Paris, addressing the applicant's husband      as "Dear brother" and transmitting a secret message to him;   -     a telefax of 10 April 1993, allegedly sent with the above letter,      entitled "Transmis de Présidence", addressed to several Zairese      embassies in Europe, including the one in Vienna, calling for the      repatriation or, if not possible, for the taking of radical and      urgent measures against a number of persons, including the      applicant's husband, and stating that the persons listed were      dangerous, subversive elements; and   -     a summons dated 14 April 1993 to appear before the Zairese      immigration authorities.   23.   On 12 May 1993 the Federal Ministry for the Interior (Bundesministerium für Inneres) dismissed the appeal by the applicant's husband.   The Ministry noted he had been heard by the Federal Office for Asylum on 24 September and 1 October 1992, and had made the following submissions: He held a critical view of the Zairese regime. In December 1991, when he was ordered to go on a mission to Zaire, another employee of the embassy informed him about the existence of a telex in which the secret service had requested his return.   Thereupon, he refused to go to Zaire and was dismissed, but was reinstated soon after.   In April 1992 the ambassador ordered him to poison a politician belonging to the opposition party, who was on visit in Vienna.   When he refused to do so, the ambassador stopped paying him his salary, which he thought would force him to return to Zaire.   In May 1992 he was again ordered to go home, but refused to leave.   He was afraid of being killed if he returned to Zaire.   24.   The Ministry found that the applicant's husband had continued to work at the Zairese embassy in Vienna from December 1991 until September 1992, although he had repeatedly been ordered to return to Zaire.   Moreover, he had not been able to name the opposition party to which he allegedly belonged.   Thus it was not credible that he was a member of such a party.   Further, the Ministry noted that according to several reports a multi-party system had been introduced in Zaire in April 1990.   As regards the documents submitted by the applicant, the Ministry found that they did not support the allegation that he would be subject to persecution in Zaire, as it was unclear how he had obtained them. Moreover, the wording of the letter of 23 April 1993 from the Zairese embassy in Paris indicated that it was not an official document but a forgery.   The summons of 14 April 1993 to appear before the Zairese immigration authority did not suffice to establish his status as a refugee.     25.   On 2 June 1993 the Federal Office for Asylum rejected the applicant's request for asylum.   It referred to the decision of 12 May 1993 by the Ministry for the Interior, which had rejected her husband's request for asylum, and stated that her request under S. 4 of the Asylum Act had, therefore, also to be rejected.   On 15 July 1993 the Federal Ministry for the Interior dismissed the applicant's appeal.   26.   On 23 December 1993 the applicant's husband lodged a complaint with the Administrative Court against the decision of 12 May 1993 by the Ministry for the Interior.   He also requested that his complaint be granted suspensive effect, which was refused by the Administrative Court on 14 January 1994.   27.   On 4 July 1994 the Vienna Police Directorate (Bundespolizei- direktion) ordered the applicant's detention with a view to her expulsion, on the ground that she was residing illegally in Austria since her request for asylum had been rejected at second instance and she did not have the necessary means for her maintenance. On 4 July 1994 the applicant was taken into custody at the Vienna Police Prison.   28.   On 7 July 1994 the Vienna Police Directorate, after having heard the applicant, issued a residence ban (Aufenthaltsverbot) against her, which is valid for five years.   The Police Directorate referred to the results of the asylum proceedings.   It found that the applicant was residing illegally in Austria and did not possess the necessary means for her maintenance.   As she, as well as her husband and children, had only been resident for about four years and she did not speak German, she had not been integrated.   Thus the interest in protecting the economic well-being of Austria outweighed her interest in staying.   29.   On 12 July 1994 the Vienna Police Directorate rendered a declaratory decision under S. 54 of the Aliens Act (Fremdengesetz). It stated that the applicant, at the hearing of 7 July 1994, had made a request for such a decision and had submitted the same reasons, which had already been stated in the asylum proceedings. Referring to the results of these proceedings, the Police Directorate found that the applicant's expulsion to Zaire would not be contrary to S. 37 of the Aliens Act. This provision prohibits the expulsion of an alien to a State, inter alia, if there are firm reasons to believe that, in the receiving State, he would be subject to inhuman treatment or punishment, or capital punishment, or that he would be persecuted within the meaning of the Geneva Convention on the Status of Refugees.   30.   On 16 July 1994 the applicant filed an appeal against the residence ban of 7 July 1994.   She submitted in particular that she and her family had been living in Austria for four years.   Her children went to school there and spoke German, like Austrian children of a comparable age.   Further, they received maintenance from private charitable organisations and did not live on any public benefits.   31.   On 25 July 1994 the Vienna Independent Administrative Senate (Unabhängiger Verwaltungssenat) dismissed the applicant's complaint concerning the lawfulness of her detention with a view to her expulsion.   32.   On 8 August 1994 the Federal Ministry for the Interior dismissed the applicant's appeal concerning the residence ban against her.   The Ministry found that the ban was justified under Article 8 of the Convention as it was necessary, inter alia, for the prevention of crime.   The applicant and her family had only been legally resident in Austria for a relatively short period and were not well integrated.   33.   On 9 September 1994 the applicant filed a request with the Vienna Police Directorate, in which she submitted that the declaratory decision of 12 July 1994, relating to the question whether her expulsion to Zaire would be prohibited under S. 37 of the Aliens Act, had been issued without legal basis, as she had not requested such a decision.   She asked that the proceedings be reopened.   34.   The applicant submitted that she would be persecuted in Zaire on account of the political activity of her husband, who was an active member of the UDPS and had used his position at the embassy to support this party. The applicant also submitted a number of documents relating to her husband's political activity. They included the following:        -     copies of two telexes of 21 December 1991 and 14 May 1992,      respectively, addressed to the embassy in Vienna, which both      stated that the applicant's husband was a subversive element and      urged that he be returned to Zaire;        -     a telefax of 10 April 1993 entitled "Transmis de      Présidence", addressed to several Zairese embassies in Europe      including the one in Vienna, calling for the repatriation or, if      not possible, for the taking of "radical and urgent measures"      against a number of persons, including the applicant's husband      and stating that the persons listed are dangerous, subversive      elements;        -     letters of 3 and 5 March 1993 and 14 April 1993 by the      President of the Zairese Socialist Party in Vienna, Mr. Ngongo,      to the Austrian Ministry for the Interior, stating that her      husband and another person, M.F., had used their position at the      embassy to pass on information to the opposition and that they      and their families would be in danger if returned to Zaire.   35.   On 22 September 1994 the Vienna Police Directorate forwarded the file to the Vienna Security Directorate (Sicherheitsdirektion).   It added a comment according to which the applicant, although she had not expressly made a request under S. 54 of the Aliens Act, had submitted that she would be persecuted and killed if returned to Zaire.   36.   On 23 September 1994 the Security Directorate returned the file, informing the Police Directorate that it did not intend to quash the latter's decision of 12 July 1994.   However, the Police Directorate would have to decide on the applicant's request for a reopening of the proceedings at issue.   It appears that the Police Directorate did not take any decision in this respect.   37.   On 25 September 1994 police officers took the applicant and another person to Vienna airport in order to expel them to Zaire. However, in view of their strong resistance, they were returned to the Vienna Police Prison.   38.   On 28 September 1994 the applicant requested the Vienna Police Directorate to stay her expulsion.   She referred to the entirety of her submissions of 9 September 1994.   She also submitted that her children, born in 1985 and 1987, would suffer from being separated from her. Finally, she pointed out that her husband's request for asylum was still pending before the Administrative Court.   39.   On 7 November 1994 the Vienna Police Directorate dismissed the applicant's request.   As regards her submissions that her expulsion would expose her to a risk of being persecuted in Zaire, and would therefore be contrary to S. 37 of the Aliens Act, the Police Directorate found that it had already given its decision in this respect on 12 July 1994.   The new documents submitted by her mostly concerned her husband or a third person.   They were not adequate to establish that she risked persecution.   The other reasons invoked by her, namely that her husband's asylum proceedings were still pending and that her children were in Austria, were not relevant in the proceedings at issue.   40.   On 4 November 1994 the Vienna Police Directorate received a certificate by the Zairese embassy in Brussels, confirming that the applicant would be allowed entry into Zaire (Heimreisezertifikat).   41.   On 16 November 1994 the applicant was released.   42.   Following the Administrative Court's decision of 15 September 1994, quashing the decision of 12 May 1993 by the Ministry for the Interior which had dismissed the asylum request of the applicant's husband, the husband's proceedings are, since 2 December 1994, again pending before the Ministry for the Interior.   43.   On 23 December 1994 the applicant filed a renewed request with the Ministry for the Interior, to extend, in accordance with S. 4 of the Asylum Act, her husband's right to asylum to her and their two minor children or, eventually, to grant asylum to her. She claimed that her husband was an active member of the UDPS and submitted inter alia the documents, which she had submitted to the Vienna Police Directorate with her request of 9 September 1994. The proceedings before the Ministry for the Interior are still pending.   B.    The evidence before the Commission   44.   The Commission had regard to the following documents, most of which had already been produced in the domestic proceedings, and to other evidence obtained at the domestic level. It considered in particular copies of:        - two telexes of 21 December 1991 and 14 May 1992, respectively,      addressed to the embassy in Vienna, which both stated that the      applicant's husband was a subversive element and urged that he      be returned to Zaire;        - a letter of 10 January 1993 from the Secretary General of the      UDPS in Kinshasa to the Zairese Socialist Party in Vienna, for      the attention of its president, Mr. Ngongo, informing the latter      that the applicant's husband was an active member of the UDPS and      asking him to intervene in favour of the applicant before the      Austrian authorities;        - letters of 3 and 5 March 1993 and 14 April 1993 by the      President of the Zairese Socialist Party in Vienna, Mr. Ngongo,      to the Austrian Ministry for the Interior, stating that the      applicant's husband and another person, M.F., had used their      position at the embassy to pass on information to the opposition      and that they and their families would be in danger if returned      to Zaire.        - a personal letter of 23 April 1993 from the First Secretary of      the Zairese embassy in Paris, addressing the applicant's husband      as "Dear brother" and transmitting a secret message to him;        - a telefax of 10 April 1993, allegedly sent with the above      letter, entitled "Transmis de Présidence", addressed to several      Zairese embassies in Europe, including the one in Vienna, calling      for the repatriation or, if not possible, for the taking of      radical and urgent measures against a number of persons,      including the applicant's husband, and stating that the persons      listed were dangerous, subversive elements;        - two summonses requesting the applicant's husband to appear      before the Zairese Immigration Authorities on 28 June 1993 and      26 August 1993, respectively, stating as a motive "attack on the      security of the state" (atteinte à la securité de l'Etat -      Art. 14/72 Aln. 11).        - a letter dated 24 July 1993 of the UDPS (Sous-Section Rhône-      Alpes) stating that the applicant's husband had helped the party.   C.    Relevant domestic law   1.    Asylum Act (Asylgesetz)   45.   S. 4 of the Asylum Act provides, that, upon request, the grant of asylum must be extended to the refugee's minor children and his or her spouse, if these persons are living in Austria and if the marriage had been concluded before they came to Austria.   In the asylum proceedings, such family members have the same legal position as the asylum-seeker.   2.    Aliens Act (Fremdengesetz)   46.   S. 37 of the Aliens Act (Fremdengesetz) deals with cases where it is prohibited to expel an alien.   Paragraph 1 states that an alien may not be expelled to a State if there are firm reasons to believe that he would be in danger of being subjected to inhuman treatment or punishment, or to capital punishment in that State.   Paragraph 2 refers to Article 33 of the Geneva Convention on the Status of Refugees, and states that an alien may not be expelled to a State if there are firm reasons to believe that in that State his life or his security would be endangered on the grounds of his race, religion, nationality or adherence to a social group, or on the grounds of his political opinion.   Paragraph 6 provides that an alien may not be expelled as long as this would be contrary to an interim measure taken by the European Commission of Human Rights or the European Court of Human Rights.   47.   S. 54 para. 1 of the Aliens Act provides that the Authority, at the alien's request, has to render a declaratory decision on whether or not there are firm reasons to believe that the alien, in a State indicated by him, is endangered within the meaning of S. 37 paragraphs 1 or 2.   According to paragraph 2, such a request may, inter alia, be made during proceedings concerning the issue of a residence ban. The alien has to be informed promptly of the possibility to make the request.   III. OPINION OF THE COMMISSION   A.    Complaint declared admissible   48.   The Commission has declared admissible the applicant's complaint that her expulsion to Zaire would expose her to a real risk of torture or inhuman or degrading treatment in that country.   B.    Point at issue   49.   Accordingly, the issue to be determined is whether the expulsion of the applicant would be in violation of Article 3 (art. 3) of the Convention.   C.    Article 3 (art. 3) of the Convention   50.   The applicant invokes Article 3 (art. 3) of the Convention which provides as follows:        "No one shall be subjected to torture or to inhuman or degrading      treatment or punishment."   51.   The applicant submits that, if she is expelled to Zaire, she is in danger of being arrested, tortured or even killed, on account of her husband's activity, who allegedly used his position at the Zairese embassy to pass on information to the UDPS, an opposition party, of which he is a member. The applicant relies in particular on the documents listed above in order to prove her husband's membership in the UDPS and to support her allegation that her husband and herself would be persecuted in Zaire. In addition she submits documents dealing with the human rights situation in Zaire. They include a report on the fiftieth session of the United Nations Commission on Human Rights, the U.S. Department of State Country Reports on Human Rights Practices for 1993 and a report of Amnesty International of February 1994.   52.   The Government submit that there are no indications militating against the applicant's expulsion.   53.   The Commission recalls that Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations under Article 3 (art. 3), to control the entry, residence and expulsion of aliens. 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 faces 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 returned (Eur. Court H.R., Vilvarajah and Others judgment of 30 October 1991, Series A no. 215, p. 34. paras. 102-103).   54.   In order to determine whether the applicant has shown the existence of a real risk of being subjected to treatment contrary to Article 3 (art. 3) of the Convention upon her return to Zaire, the Commission has first examined the submissions made by the applicant's husband and by the applicant in the course of the asylum proceedings. In this context the Commission notes that the applicant initially did not file a request for asylum herself but only requested that her husband's asylum proceedings be extended to cover her and their minor children in accordance with S. 4 of the Austrian Asylum Act. In a first set of proceedings, which started in September 1992, the Ministry for the Interior dismissed the husband's request for asylum. Consequently, the applicant's related request was also dismissed. However, the Ministry's decision was quashed by the Administrative Court on 15 September 1994, and the husband's asylum proceedings are again pending before the Ministry for the Interior. The applicant, on 23 December 1994, again filed a request to extend her husband's asylum to her, but also requested, eventually, that she herself be granted asylum.   55.    In the first set of asylum proceedings, the applicant's husband, according to the decision of the Ministry for the Interior, submitted inter alia the following:   He held a critical view of the Zairese regime.   In December 1991, when he was ordered to go on a mission to Zaire, another employee of the embassy informed him about the existence of a telex in which the secret service had requested his return. Thereupon, he refused to go to Zaire and was dismissed, but was reinstated soon after.   In April 1992 the ambassador ordered him to poison a politician belonging to the opposition party, who was on visit in Vienna.   When he refused to do so, the ambassador stopped paying him his salary, which he thought would force him to return to Zaire.   In May 1992 he was again ordered to go home, but refused to leave.   The decision of the Ministry for the Interior further states that the applicant's husband continued to work at the embassy until September 1992. In the renewed asylum proceedings the applicant claimed in particular that her husband was an active member of the UDPS.   56.   The Commission notes that the allegations of a risk of ill- treatment in case of the applicant's return to Zaire only relate to her husband's activities for the UDPS, whereas there is no clear indication in the facts that the applicant would run such a risk on account of any political activities of her own. The Commission finds that the submissions made by the applicant and her husband contain several inconsistencies. Before the Commission the applicant claims that her husband was a member of the UDPS and that he used his position at the Zairese embassy to pass on information to this party. This must have occurred in 1990 or 1991, when the applicant was working at the embassy in Vienna and had not yet been warned that the secret service had requested his return to Zaire. However, in the first set of asylum proceedings in 1992 the applicant's husband did neither state that he was a member of the UDPS, nor did he mention that he passed on information to this party. According to the decision of the Ministry for the Interior, he only submitted that he held a critical view of the Zairese regime, and was not even able to name the opposition party, which he allegedly supported. Only in the renewed asylum proceedings in 1994 the applicant claimed that her husband was an active member of the UDPS.   57.   Further, the applicant's husband claims that he was informed in December 1991 about a telex, in which the secret service requested his return to Zaire. It has to be assumed that the ambassador knew about this telex. In these circumstances, it is not convincing that the ambassador ordered him, in April 1992, to poison a politician of an opposition party. Moreover, the applicant's husband, despite a renewed order to return to Zaire in May 1992, only filed his request for asylum in September 1992 and also continued working at the embassy until that time.   58.   Secondly, the Commission has examined the various documents submitted by the applicant. It notes that most of these documents have been presented to the Austrian authorities, partly in the asylum proceedings concerning the applicant's husband, and partly in proceedings relating to the applicant's request to stay her expulsion. The Commission notes that, according to the file, the Austrian Ministry for the Interior did not hear the applicant's husband on the credibility of the documents at issue when dismissing his asylum request in the first set of proceedings. Further, it appears that the Vienna Police Directorate did not hear the applicant on this question, when dismissing her request to stay her expulsion.   59.   However, the Commission finds that there are serious doubts as regards the authenticity of the said documents. These doubts relate either to the contents of the documents as such or to the way in which the applicant's husband allegedly obtained them. In particular, the latter claims that he was informed about a secret telex in December 1991 by another employee of the embassy in Vienna. However, it appears that he did not submit the said telex to the Austrian authorities in the 1992 asylum proceedings and it remains unclear how he obtained the copy, which the applicant now presents to the Commission. As regards the letter of 23 April 1993, it appears very unlikely that a high official of the Zairese embassy in Paris, even if he did warn the applicant's husband of measures pending against him, would have produced a written proof of his disloyalty. This consideration also casts doubt on the authenticity of the telefax of 10 April 1993, which was allegedly transmitted with this letter and calls for the repatriation of the applicant's husband, or for the taking of "radical and urgent measures" against him.   60.   The Commission equally questions the authenticity of the two summonses to appear before the Zairese Immigration Authorities on 28 June 1993 and 26 August 1993. There is no indication in the file of how the applicant's husband obtained these documents. Moreover, there is no reason, why the Zairese authorities, who purportedly knew that the applicant's husband was resident in Austria, should have tried to summon him in Zaire. The further documents do not suffice to show that the applicant or her husband would be persecuted in Zaire, on account of the husband's alleged membership in the UDPS.   61.   In these circumstances, the Commission finds that no substantial grounds have been established for believing that the applicant would be exposed to a real risk of being subjected to treatment contrary to Article 3 (art. 3) if returned to Zaire.        CONCLUSION   62.   The Commission concludes, by 25 votes to 1, that in the present case the expulsion of the applicant would not be in violation of Article 3 (art. 3) of the Convention.   Secretary to the Commission           President of the Commission          (H.C. KRÜGER)                        (C.A. NØRGAARD)