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. 25664/94                                Funsu Mbemba                                   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. 19-52). . . . . . . . . . . . . . . . . . . . . . . . 4         A.    The particular circumstances of the case            (paras. 19-49) . . . . . . . . . . . . . . . . . . . . . 4         B.    The evidence before the Commission            (para. 50) . . . . . . . . . . . . . . . . . . . . . . . 9         C.    Relevant domestic law            (paras. 51-52) . . . . . . . . . . . . . . . . . . . . .10   III.   OPINION OF THE COMMISSION       (paras. 53-68). . . . . . . . . . . . . . . . . . . . . . . .12         A.    Complaint declared admissible            (para. 53) . . . . . . . . . . . . . . . . . . . . . . .12         B.    Point at issue            (para. 54) . . . . . . . . . . . . . . . . . . . . . . .12         C.    As regards Article 3 of the Convention            (paras. 55-67) . . . . . . . . . . . . . . . . . . . . .12              CONCLUSION            (para. 68) . . . . . . . . . . . . . . . . . . . . . . .14   APPENDIX I    : DECISION OF THE COMMISSION AS TO THE                ADMISSIBILITY OF THE APPLICATION . . . . . . . . . .15   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 1934 and currently resident in Vienna.   He 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 his expulsion to Zaire would expose him to the risk of being arrested, tortured or even killed, on account of his activities for an opposition party. The applicant invokes Article 3 of the Convention.   B.     The proceedings   5.     The application was introduced on 12 November 1994 and registered on 14 November 1994.   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 his expulsion to Zaire would expose him to a real risk of torture or inhuman or degrading treatment 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 8 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 attached 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 Vienna as the private secretary of the Zairese ambassador.   a.     The asylum proceedings   20.    In 1992 the applicant filed a request for asylum.   According to the applicant this request was, on 6 May 1992, submitted to the Vienna Police Directorate, which was at that time competent to deal with it, and was subsequently, after a change in the law, transmitted to the Federal Office for Asylum (Bundesasylamt).   According to the Government, the applicant filed his request for asylum on 24 September 1992.   21.    On 24 September and on 1 October 1992, the applicant was heard by the Federal Office for Asylum.   22.    According to the records of the hearing of 1 October 1992 he submitted in particular that, despite his work at the embassy, 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 had given him a copy of a secret telex, which had been sent by the Zairese secret service to the ambassador, and which referred to him as being a subversive element.   Thereupon, he refused to go to Zaire and was dismissed on 2 January 1992.   One month later, the ambassador reinstated him, but did not pay him his salary any more. He knew that the embassy was almost insolvent, but thought that his not being paid had other reasons. In June 1992 he obtained a copy of another secret telex to the ambassador, having mainly the same contents as the first one.   He was still formally employed with the embassy, but had been told that he need not come to work any more, and had recently been refused access to the building.   The applicant stated that he would be able to submit the above-mentioned copies of the secret telexes. The applicant expressed his fear of being killed in case he had to return to Zaire, as he was known to the secret service as a critic of the regime.   Moreover, he had been suspected of being the author of leaflets, which had been distributed in Vienna, and which criticised President Mobutu's regime.   His wife, who had returned to Zaire in November 1991, had been refused permission to travel back to Austria and her passport had been taken away.   He had been informed that she had fled to the Congo. He had obtained a new passport for her at the embassy, which he intended to send to her as soon as he had her address.   23.    On 6 October 1992 the Federal Office for Asylum rejected the applicant's request.   It found that the applicant, who was still an employee of the Zairese embassy, had not been subject to any specific measures of persecution.   The mere fact that he held a critical view of the Zairese regime did not suffice for recognising him as a refugee.   24.    On 22 October 1992 the applicant filed an appeal with the Federal Ministry for the Interior (Bundesministerium für Inneres). He submitted in particular that he was not only a critic of the regime, but a member of Prime Minister Tshisekedi's opposition party.   The officer of the security service, present at the embassy, had reported him as such to the Zairese authorities.   He had stopped working at the embassy in September.   Before that, his salary had been blocked in order to force him to return home, where he would risk persecution by the secret service or the political police.   25.    On 7 May 1993 the applicant submitted to the Ministry a number of documents in support of his appeal.   They included the following:         - 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 addressed to the Zairese       Socialist Party in Vienna, for the attention of its president,       Mr. Ngongo, informing the latter that the applicant 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 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, and stating that the persons listed were       dangerous, subversive elements;         - a summons dated 14 April 1993 to appear before the Zairese       immigration authorities;   26.    On 12 May 1993 the Federal Ministry for the Interior dismissed the applicant's appeal.   The Ministry found that the applicant had worked at the Zairese embassy in Vienna, even after he had refused to go on a mission to his home country.   It concluded that the ambassador did not consider the applicant's criticism of the regime as significant.   Therefore, there was no reason to assume that he would be persecuted upon his return to Zaire.   Moreover, the proceedings had not shown that he had voiced his criticisms publicly and thereby drawn the authorities' attention to himself.   His submissions, that his wife's passport was taken away from her, upon her return to Zaire, were not credible, as he had apparently been able to obtain a new passport for her at the embassy.   27.    As regards the documents submitted by the applicant, the Ministry found that they did not support the allegation that he would be subject to prosecution 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 authorities did not suffice to establish his status as a refugee.   28.    Subsequently, the applicant, now represented by counsel, lodged a complaint with the Administrative Court (Verwaltungsgerichtshof). On 24 February 1994 the Court, on the applicant's request, granted the complaint suspensive effect.   29.    On 19 October 1994 the Administrative Court, referring to the Constitutional Court's judgment of 1 July 1994 (which had found that the relevant provision of the Asylum Act, limiting the scope of review of the Ministry of the Interior and the Administrative Court in the appeal proceedings, was unconstitutional) quashed the Ministry's decision of 12 May 1993.   30.    On 21 and 25 November 1994 the applicant was heard by the Vienna Office of the United Nations High Commissioner for Refugees.   31.    On 24 November 1994 the Ministry for the Interior requested the Federal Office for Asylum to conduct a further hearing with the applicant, relating to his request for asylum.   It added a list of forty-six questions which should be put to the applicant.   They concerned in particular the following issues: why had he not submitted his request for asylum already in December 1991; what were his position and duties at the embassy; what exactly were his political activities; who had warned him not to return to Zaire and how had he obtained the secret telexes; how was it possible for him to obtain a new passport for his wife, who had allegedly been prevented from travelling back from Zaire to Austria; how had he obtained the letter of 23 April 1993 by the First Secretary of the Zairese embassy in Paris; by whom would he be persecuted if returned to Zaire?   The Ministry also pointed out that the applicant was to be given the possibility of making additional submissions in view of his appeal.   32.    On 28 November 1994, the Federal Office for Asylum heard the applicant.   The hearing, which followed the catalogue of questions prepared by the Ministry for the Interior, was continued on 1 and 5 December 1994.   33.    The applicant submitted in particular that he had not applied for asylum immediately after receipt of the first secret telexes, as he wanted to obtain more information and, moreover, did not know where he had to file a request for asylum. As regards his position he stated that he had been the private secretary of ambassador B since 1972.   His duties included the typing of secret reports which the ambassador sent to the President or to the secret service and the filing of papers, including confidential messages.   As regards his political activities, he had been a member, though not an active one, of the MPR (Mouvement Populaire de la Révolution).   He noted that he would not have obtained his job otherwise, and that most of today's opposition leaders had once been members of the MPR.   The UDPS had been founded in 1985 and he had started to pass on information to them when he worked at the Zairese embassy in France (1988-1990).   He gave secret documents to the cook of the embassy, who transmitted them to members of the UDPS.   He himself never contacted UDPS members personally and never went to UDPS meetings as he was more rigorously controlled by the secret service. The applicant submitted that he was persecuted by President Mobutu's secret service.   He considered that he would be arrested and tortured or that he might "disappear" if returned to Zaire.   34.    The applicant further submitted that he had been able to obtain a new passport for his wife as the competent officer at the embassy in Vienna was also a member of the opposition. As regards the secret telexes, the applicant stated that L., the employee handling the telex machine, had given him a copy of the telex of 21 December 1991, when he had told him that he was to be sent to Zaire.   L. had also given him a copy of the telex of 14 May 1992.   He did not know of L.'s present whereabouts, because, as far as he knew, the Zairese embassy in Vienna had been closed.   As regards the letter of 23 April 1993, he submitted that it was a private letter which had been sent to his private address.   35.    On 12 December 1994 the applicant made additional submissions in view of his appeal. He submitted inter alia that the Ministry for the Interior, in the first set of proceedings, had, without hearing him, dismissed the credibility of the documents submitted by him.   36.    On 24 April 1995 the Federal Ministry for the Interior again dismissed the applicant's request for asylum. It noted that he had been questioned in detail in the renewed proceedings, but had not been able to remove inconsistencies in his submissions. In particular, as regards the delay in lodging his asylum request he had stated that he had initially not known to which authority he should address himself. However, he had, at the relevant time, already spent two years in Austria. Being a high official of the Zairese embassy he must have been to some extent familiar with the organisation of the Austrian administration. It was not credible that he was not capable of finding out where to file an asylum request. Further, in his initial request for asylum, he had only stated that he held a critical view of the Zairese regime. He had not mentioned any particular activity for an opposition party. Only in the present proceedings he claimed to be an active member of the UDPS and to have supported this party by passing on secret information. It was not understandable that he did not mention this reason for his alleged persecution in the first set of proceedings. The documents presented by him did not add to his credibility. These documents had not been further examined, in particular as the President of the Zairese Socialist Party in Vienna, who had inter alia stated that the applicant was a member of the UDPS, had been arrested on the suspicion of having forged documents."   b.     The proceedings under the Aliens Act   37.    On 8 January 1994 the Vienna Police Directorate (Bundespolizei- direktion) issued a residence ban (Aufenthaltsverbot), valid for five years, against the applicant on the ground that he was illegally resident in Austria since his request for asylum had been rejected at second instance, and that he did not possess the necessary means for his maintenance.   38.    On 27 January 1994 the Vienna Police Directorate, on the applicant's request of 8 January 1994, rendered a declaratory decision under S. 54 of the Aliens Act (Fremdengesetz).   Referring to the results of the asylum 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 that 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.   39.    According to the applicant, this decision was not served on him. However, his request for a transfer of jurisdiction (Devolutionsantrag) was rejected by the Vienna Security Directorate (Sicherheitsdirektion) on 8 November 1994.   It found that the decision of 27 January 1994 by the Vienna Police Directorate had been duly deposited at the competent post office and that it had apparently been collected by the applicant. The applicant had not duly notified the authority that he had nominated another person to receive service.   40.    On 19 May 1994 the Vienna Security Directorate dismissed the applicant's appeal against the residence ban of 8 January 1994, as being lodged out of time.   41.    On 31 May 1994 the Vienna Police Directorate ordered the applicant's detention with a view to his expulsion (Schubhaft).   It found that the residence ban against him had become enforceable on 27 May 1994 and that he had not complied with his obligation to leave Austria immediately.   42.    On 4 July 1994 the applicant was arrested and taken into custody at the Vienna Police Prison, with a view to his expulsion.   43.    On 8 July 1994 the applicant filed a request for a declaratory decision under S. 37 of the Aliens Act that his expulsion to Zaire would expose him to a risk of being killed or sentenced to death, and a request for a stay in his expulsion (Abschiebungsaufschub) on this ground.   44.    In support of his request, the applicant, apart from referring to the documents he had already submitted in the asylum proceedings, submitted a number of new documents.   These included inter alia:         - two summonses to appear before the Zairese Civil Guard in       Kinshasa on 11 January 1994 and on 17 February 1994,       respectively, stating that he will be informed on the spot about       the reasons for summoning him ("motif: vous sera communiqué sur       place");         - an arrest warrant (mandat d'amener) against the applicant from       the Zairese Civil Guard dated 15 March 1994, on the suspicion of       distributing subversive writings and of provoking civil       disobedience ("Distribution tracts subversifs, Provocation à la       désobéissance civile");         - a search warrant from the Civil Guard dated 10 June 1994;         - a letter, dated Kinshasa 11 July 1994, from the First Secretary       of the UDPS and addressed to the President of the Zairese       Socialist Party in Vienna, Mr. Ngongo.   The author states that       he has been informed about the applicant's arrest by the       international secretariat of the UDPS in Brussels.   He further       states that he encloses documents, which show that the applicant       is persecuted by the political police, and asks Mr. Ngongo to       transmit these documents to the Austrian authorities.   45.    On 14 July 1994 the Vienna Independent Administrative Senate (Unabhängiger Verwaltungssenat) dismissed the applicant's complaint of 11 July 1994, concerning the lawfulness of his detention.   It found that the applicant was entitled to stay in Austria until the termination of the Administrative Court proceedings, on the ground that this court, on 24 February 1994, had granted his complaint in the asylum proceedings suspensive effect.   However, such a right to temporary residence did not prevent the authorities from issuing a residence ban, which would become enforceable as soon as the temporary right to residence ended.   Nor did it prevent them from taking the applicant into detention with a view to his expulsion, which in the present case served the purpose of securing his expulsion and was necessary as he did not have the means for his maintenance. Subsequently, the applicant filed further complaints relating to the lawfulness of his detention with a view to his expulsion which were dismissed by the Vienna Independent Administrative Senate.   The latest of these decisions was issued on 14 November 1994.   46.    On 4 November 1994 the Zairese embassy in Brussels, at the Austrian authorities' request, issued a certificate confirming that the applicant would be allowed entry into Zaire (Heimreisezertifikat).   47.    On 7 November 1994 the Vienna Police Directorate rejected the applicant's request of 8 July 1994 to stay his expulsion.   It considered that it had already found in its decision of 27 January 1994 that the applicant's expulsion would not be contrary to S. 37 of the Aliens Act. As regards the documents submitted by the applicant, it found that the letter of 23 April 1993 of the Zairese embassy in Paris was not worded like an official document and appeared to be a forgery. The same had to be assumed as regards the telex entitled "Transmis de Présidence", which was allegedly transmitted to the applicant with the said letter.   As regards the documents which had allegedly been transmitted by Mr. Ngongo, the President of the Zairese Socialist Party, namely the two summonses to appear before the Civil Guard, the arrest warrant and the search warrant, their credibility was also open to doubt.   It had to be assumed that the Zairese authorities knew that the applicant was resident abroad.   Thus, it was inexplicable why they should try to summon him to Kinshasa.   Moreover, the Police Directorate considered that the documents appeared to be for the internal use of the police and that the applicant had failed to give a satisfactory explanation as to how he had obtained them.   48.    On 16 November 1994 the applicant was released.   49.    On 21 December 1994 the applicant lodged a complaint with the Administrative Court, claiming that the decision of 7 November 1994 by the Vienna Police Directorate, refusing to stay his expulsion, was unlawful. The material submitted to the said authority sufficed to show that he risked treatment contrary to Article 3 if returned to Zaire. Further, the Police Directorate had found that the documents submitted by him were not credible but had not carried out any investigations into this matter. In particular, the Police Directorate should have heard him and the president of the Zairese Socialist Party in Vienna, Mr. Ngongo. The proceedings are still pending before the Administrative Court.   B.     The evidence before the Commission   50.    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 Zairese embassy in Vienna, which both stated       that the applicant was a subversive element and urged that the       he be returned to Zaire;         - a letter of 10 January 1993 from the Secretary General of the       UDPS in Kinshasa addressed to the Zairese Socialist Party in       Vienna, for the attention of its president, Mr. Ngongo, informing       the latter that the applicant 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 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, and stating that the persons listed were       dangerous, subversive elements;         - two summonses to appear before the Zairese Immigration       Authorities on 28 June 1993 and on 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).         - two summonses to appear before the Zairese Civil Guard in       Kinshasa on 11 January 1994 and on 17 February 1994,       respectively, stating that he will be informed on the spot about       the reasons for summoning him ("motif: vous sera communiqué sur       place");         - an arrest warrant (mandat d'amener) against the applicant from       the Zairese Civil Guard dated 15 March 1994, on the suspicion of       distributing subversive writings and of provoking civil       disobedience ("Distribution tracts subversifs, Provocation à la       désobéissance civile");         - a search warrant from the Civil Guard dated 10 June 1994;         - a letter, dated Kinshasa 11 July 1994, from the First Secretary       of the UDPS and addressed to the President of the Zairese       Socialist Party in Vienna, Mr. Ngongo.   The author states that       he has been informed about the applicant's arrest by the       international secretariat of the UDPS in Brussels.   He further       states that he encloses documents, which show that the applicant       is persecuted by the political police, and asks Mr. Ngongo to       transmit these documents to the Austrian authorities;         - a letter dated 24 July 1993 of the UDPS (Sous-Section Rhône-       Alpes) stating that the applicant had helped the party by passing       on secret information;         - the statements of the applicant in the asylum proceedings       according to the records of the Federal Office for Asylum of       1 October 1992 and 28 November, 1 and 5 December 1994; and his       written submissions in the asylum proceedings.   C.     Relevant domestic law   51.    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.   52.    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   53.    The Commission has declared admissible the applicant's complaint that his expulsion to Zaire would expose him to a real risk of torture or inhuman or degrading treatment in that country.   B.     Point at issue     54.    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   55.    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."   56.    The applicant submits that, if he is expelled to Zaire, he is in danger of being arrested, tortured or even killed on account of his activity for the UDPS, an opposition party. He claims to have used his position as private secretary of the Zairese ambassador in Vienna to pass on secret information to the said party. The applicant relies in particular on the documents listed above in order to prove his membership in the UDPS and to support his allegation that he risks persecution by the Zairese secret service. In addition he 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.   57.    The Government submit that there are no indications militating against the applicant's expulsion.   58.    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).   59.    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 his return to Zaire, the Commission has first examined the submissions made by the applicant in the course of the asylum proceedings. In this context the Commission notes that, in a first set of proceedings which started in 1992, the Federal Office of Asylum and the Ministry for the Interior refused the applicant's request for asylum. However, the decision of the latter was quashed by the Administrative Court on 19 October 1994 on constitutional grounds. In a second set of proceedings, the Ministry for the Interior, in April 1995, again dismissed the applicant's request for asylum.   60.    In the first set of asylum proceedings the applicant was heard on 24 September and 1 October 1992 by the Federal Office for Asylum. According to the records of the latter hearing and his written statements to the Ministry for the Interior, he submitted inter alia that despite his work at the embassy he held a critical view of the Zairese regime and that he was a member of Prime Minister Tshisekedi's opposition party. In December 1991 another employee of the embassy had given him a copy of a secret telex, which stated that he was a subversive element. Thereupon, he refused to go on mission to Zaire and was dismissed in January 1992. Although the ambassador reinstated him a month later, he was not paid his salary any more, which according to him was intended to force him to return to Zaire. However, he knew that the embassy was almost insolvent. In June 1992 he received a further secret telex. He stopped working at the embassy in September 1992. The applicant also submitted that his wife had travelled to Zaire in November 1991. When she wanted to return to Austria her passport had been taken and she had fled to the Congo. However, he had meanwhile obtained a new passport for her at the embassy.   61.    In the renewed asylum proceedings the applicant, upon request of the Ministry for the Interior, was heard by the Federal Office for Asylum on 28 November and on 1 and 5 December 1994. According to the records of this hearings he submitted inter alia that he had not filed a request for asylum in December 1991 as he did not know where he would have to file it. He also wanted to obtain more information before filing his request. In his position as private secretary of the ambassador, he had access to confidential messages. He gave them to the cook of the embassy, who passed them on to members of the UDPS. As regards the question of his wife's passport he submitted that the competent officer at the embassy was also a member of the opposition.   62.    The Commission finds that the applicant's statements contain several inconsistencies. Before the Commission he claims to have passed on secret information to the UDPS. This must have occured in 1990 or 1991. However, he raised this point for the first time in the renewed 1994 asylum proceedings, whereas in the first set of asylum proceedings in 1992 he only submitted that he held a critical view of the Zairese regime and was a member of Prime Minister Tshisekedi's opposition party.   63.    Further, the applicant claims that he was informed in December 1991 about a secret telefax, which warned him that he was considered by the Zairese authorities to be a subversive element and that he filed his request for asylum in May 1992. Still he continued working at the embassy until September 1992. The fact that he was not paid during that time is not decisive, as it appears to have been due to the precarious state of the Zairese public finances. The applicant himself knew that the embassy was almost insolvent at the relevant time. Moreover, his wife's passport was allegedly taken away, after she had travelled to Zaire in November 1991. Nevertheless, the applicant was able to obtain a new passport for her at the embassy in Vienna. The explanation he gives in this respect is not convincing.   64.    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 applicant's asylum proceedings, and partly in the proceedings relating to his request to stay his expulsion. The Commission further notes that the Austrian authorities did not hear the applicant on the credibility of the documents at issue and on the question of how he obtained them, when dismissing his asylum request in the first set of proceedings or when refusing his request to stay his expulsion. However, he was questioned on this issue in the renewed asylum proceedings.   65.    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 allegedly obtained them. In particular, it is not convincing that an officer of the Zairese embassy in Vienna gave copies of secret telexes to the applicant, thereby exposing himself to a considerable risk. If he had wanted to warn the applicant he could have done so orally. As regards the letter of 23 April 1993, it appears highly unlikely that a high official of the Zairese embassy in Paris, even if he did warn the applicant 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 applicant's repatriation or the taking of "radical and urgent measures" against him.   66.    The further documents, in particular the summonses to appear before the Zairese Immigration Authorities on 28 June 1993 and on 26 August 1993, and to appear before the Zairese Civil Guard on 11 January and 17 February 1994, the arrest warrant of 15 March 1994 and the search warrant of 10 June 1994, appear to have been transmitted from Zaire to the President of the Zairese Socialist Party in Vienna, Mr. Ngongo, with the letter of 11 July 1994. However, there is no reason why the Zairese authorities, who purportedly knew that the applicant was resident in Austria, should have tried to summon him or to search for him in Zaire.   67.    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   68.    The Commission concludes, unanimously, 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)