CEDH · CASELAW;REPORTS;ENG — 5 juillet 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. 25964/94                            Sharif Hussein Ahmed                                   against                                     Austria                          REPORT OF THE COMMISSION                          (adopted on 5 July 1995)                              TABLE OF CONTENTS                                                                    Page   I.     INTRODUCTION       (paras. 1-16) . . . . . . . . . . . . . . . . . . . . . . . . 1         A.    The application            (paras. 2-4) . . . . . . . . . . . . . . . . . . . . . . 1         B.    The proceedings            (paras. 5-11). . . . . . . . . . . . . . . . . . . . . . 1         C.    The present Report            (paras. 12-16) . . . . . . . . . . . . . . . . . . . . . 2   II.    ESTABLISHMENT OF THE FACTS       (paras. 17-54). . . . . . . . . . . . . . . . . . . . . . . . 3         A.    The particular circumstances of the case            (paras. 17-38) . . . . . . . . . . . . . . . . . . . . . 3         B.    The evidence before the Commission            (paras. 39-42). . . . . . . . . . . . . . . . . . . . . .6         C.    Relevant law            (paras. 43-54) . . . . . . . . . . . . . . . . . . . . . 7   III.   OPINION OF THE COMMISSION       (paras. 55-71). . . . . . . . . . . . . . . . . . . . . . . . 9         A.    Complaint declared admissible            (para. 55) . . . . . . . . . . . . . . . . . . . . . . . 9         B.    Point at issue            (para. 56) . . . . . . . . . . . . . . . . . . . . . . . 9         C.    Article 3 of the Convention            (paras. 57-70) . . . . . . . . . . . . . . . . . . . . . 9              CONCLUSION            (para. 71) . . . . . . . . . . . . . . . . . . . . . . .11   APPENDIX I   : DECISION OF THE COMMISSION AS TO THE               ADMISSIBILITY OF THE APPLICATION. . . . . . . . . . .12   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 citizen of Somalia, born in 1963 and currently resident in Graz.   He was represented before the Commission by Mr. W. Vacarescu, a lawyer practising in Graz.     3.     The application is directed against Austria.   The respondent Government were represented by their Agent, Ambassador Mr. F. Cede, 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 Somalia would expose him to a serious risk of being arrested, tortured or killed. The applicant invokes Article 3 of the Convention.   B.     The proceedings   5.     The application was introduced on 13 December 1994 and registered on 15 December 1994.   6.     On 15 December 1994 the President of the Commission decided, in accordance with Rule 36 of the Commission's Rules of Procedure, to indicate to the Government of Austria that it was desirable in the interest of the parties and the proper conduct of the proceedings not to expel the applicant to Somalia until the Commission had an opportunity to examine the application in the light of the parties' submissions. On 20 January, 2 March, 12 April and 25 May 1995, the Commission decided to prolong the application of Rule 36.   7.     Also on 15 December 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 3 January 1995. The applicant replied on 1 February 1995 after an extension of the time-limit.   9.     On 2 March 1995 the Commission declared the application admissible and decided to invite the Government to submit further observations on the merits of the application.   10.    The text of the Commission's decision on admissibility was sent to the parties on 7 March 1995 and they were invited to submit further observations on the merits.   The applicant submitted observations on 14 April 1995. The Government submitted observations on 2 May 1995. Further information was submitted by the Government on 5 May 1995 and by the applicant on 23 and 24 May 1995.   11.    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   12.    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                  H. DANELIUS                  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                  G.B. REFFI                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  E. KONSTANTINOV                  D. SVÁBY                  G. RESS                  A. PERENIC                  C. BlRSAN   13.    The text of this Report was adopted on 5 July 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.   14.    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.   15.    The Commission's decision on the admissibility of the application is attached hereto as Appendix I.   16.    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   a.     The asylum proceedings   17.    On 30 October 1990 the applicant came to Austria.   18.    On 4 November 1990 the applicant applied for asylum. On 27 November 1990 he was heard by the Lower Austria Public Security Authority (Sicherheitsdirektion). He submitted in particular that his uncle had been an active member of the United Somali Congress (USC). His father and his brother, who had not been members of the USC, but had supported his uncle's activities, had been executed in May 1990. Since then, he himself and his whole family were suspected of being members of the USC and of having participated in rebellious activities. His car had been confiscated and he had been beaten and injured. He had left Somalia for fear of being arrested and executed.   19.    On 19 April 1991 the Styria Public Security Authority dismissed the applicant's request. It found that the applicant had failed to show that he was persecuted in his home country.   20.    On 30 July 1991 the Graz District Court (Bezirksgericht) convicted the applicant of damage to property (Sachbeschädigung) and sentenced him to three weeks' imprisonment, suspended on probation.   21.    On 15 May 1992 the Federal Ministry for the Interior (Bundes- ministerium für Inneres), on the applicant's appeal, granted him asylum, referring to the relevant legislation. The Ministry noted in particular his alleged activities for an opposition party and the notorious situation in his country of origin. It found that the credibility of the applicant's submissions could not be denied and that there were reasonable grounds for believing that he would be persecuted in case of his return to Somalia. Therefore, he had the status of a refugee and was entitled to reside in Austria.   22.    On 25 August 1993 the Graz Regional Court (Landesgericht) convicted the applicant of attempted robbery and sentenced him to two and a half years' imprisonment. The Court found that he had, on 30 March 1993, together with an accomplice hit a pedestrian in the face and had attempted to take the wallet from his pocket. The sentence became final on 7 March 1994.   23.    On 15 July 1994 the Graz Federal Office for Asylum (Bundesasylamt), referring to S. 5 para. 1 subpara. 3 of the Asylum Act (Asylgesetz), withdrew the applicant's right to asylum because of his conviction.   24.    On 12 September 1994 the Ministry for the Interior dismissed the applicant's appeal. The Ministry noted the applicant's submission that he would be persecuted upon his return on the ground that he belonged to General Aideed's clan. The Ministry referred to S. 5 para. 1 subpara. 3 of the Asylum Act in connection with Article 33 para. 2 of the Geneva Convention relating to the Status of Refugees (Refugee Convention), and stated that the right to asylum may be withdrawn if a refugee is convicted, by a final sentence, of a particularly serious crime and is, therefore, a danger to the community in the country of asylum. It followed from S. 37 para. 4 of the Austrian Aliens Act (Fremdengesetz), that the Austrian legislator considered any crime punishable with more than five years' imprisonment as a particularly serious crime within the meaning of Article 33 para. 2 of the Refugee Convention. The applicant had been convicted of attempted robbery, which was punishable with one to ten years' imprisonment, and the sentence had become final. Thus, the conditions for withdrawing his right to asylum were met.   25.    On 2 February 1995 the Administrative Court (Verwaltungsgerichts- hof), on the applicant's complaint, quashed the decision by the Ministry for the Interior of 12 September 1994. It confirmed the Ministry's view that the term "particularly serious crime", which is not defined in Article 33 para. 2 of the Refugee Convention, was to be read in connection with S. 37 para. 4 of the Aliens Act as referring to a crime punishable with more than five years' imprisonment. The crime of which the applicant had been convicted was punishable with one to ten years' imprisonment. However, it did not follow automatically from such a conviction that the person concerned was a danger to the community within the meaning of Article 33 para. 2 of the Refugee Convention. The purpose of this provision was to weigh the interest of the receiving state in protecting the community against the refugee's interest in being protected against a danger to his life or security. Therefore, an assessment of the particular case had to be made, taking into account, inter alia, the circumstances of the crime committed by the refugee and his conduct since the commission of the crime. In the proceedings before the Administrative Court, the applicant was represented by Mr. Vacarescu.   26.    On 10 April 1995 the Ministry for the Interior gave a new decision, finding that the conditions laid down in S. 5 para. 1 (3) of the Asylum Act for withdrawing the right to asylum were met in the applicant's case. The Ministry, referring to the Administrative Court's decision, noted in particular that the applicant had been convicted for a particularly serious crime within the meaning of Article 33 para. 2 of the Refugee Convention. Further, he had, in 1991, been convicted of damage to property and been sentenced to three weeks' imprisonment, suspended on probation. In March 1992 he had been ordered to pay a fine of AS 1,000 for unruly behaviour (ungestümes Benehmen) at a police station. In December 1992 a criminal information on the suspicion of having caused damage to property had been filed against him. These incidents, though each one of them was rather minor, showed in their entirety that he had a tendency to act aggressively. Thus, it could not be excluded that he might commit further crimes in the future. Consequently, he was a danger to the community.   b.     The proceedings under the Aliens Act   27.    On 14 November 1994 the Graz Federal Police Authority (Bundes- polizeidirektion) imposed an unlimited residence ban (unbefristetes Aufenthaltsverbot) based on S. 18 para. 1 and para. 2 subpara. 1 of the Aliens Act (Fremdengesetz) on the applicant. It noted that the applicant had been convicted of attempted robbery. Given the seriousness of the crime, his residence would disturb public order and security. Further, the Police Authority ordered that the applicant be detained with a view to his expulsion (Schubhaft) as soon as his prison sentence terminated.   28.    On 22 November 1994 the Graz Federal Police Authority requested a "laissez-passer" for the applicant from the Somalian embassy. In the request it was stated explicitly that the "laissez-passer" was needed for the purpose of returning the applicant to Somalia.     29.    On 30 November 1994 the applicant informed the Graz Federal Police Authority that he had nominated Mr. Vacarescu as his counsel. He requested, in accordance with S. 54 of the Aliens Act, that a declaratory decision be taken that his expulsion to Somalia would be inadmissible as being contrary to Article 3 of the European Convention on Human Rights, or for exposing him to persecution within the meaning of the Geneva Convention relating to the Status of Refugees. He referred in particular to the results of the 1992 asylum proceedings.   30.    Also on 30 November 1994 the applicant lodged an appeal against the residence ban of 14 November 1994.   31.    On 10 December 1994 the Styria Public Security Authority dismissed the applicant's appeal. However, it decided that the residence ban should only be valid for ten years. The Public Security Authority found that the issuing of the residence ban was in accordance with S. 18 para. 1 and para. 2 subpara. 1 of the Aliens Act, given the applicant's conviction for attempted robbery. It further noted that the applicant, following the withdrawal of his right to asylum by decision of 12 September 1994, did not have the right to reside in Austria any more. The Public Security Authority also found that the interest in issuing a residence ban outweighed the applicant's interest in staying in Austria, as he had only spent four years in Austria and had not been integrated. Furthermore, he had no family ties in Austria.   32.    On 14 December 1994 the applicant, upon his conditional release (bedingte Entlassung) from prison, was taken into detention at the Graz Police Prison with a view to his expulsion.   33.    On 23 January 1995 the Styria Independent Administrative Tribunal (Unabhängiger Verwaltungssenat) found that the applicant's further detention would be unlawful, as it was already obvious that his expulsion could not take place within the two-months' time-limit provided for in the Aliens Act. The Administrative Tribunal noted in particular that the European Commission of Human Rights, on 20 January 1995, had decided to prolong the application of Rule 36 of its Rules of Procedure until the end of its next session in the beginning of March. As long as the interim measure was applied, the applicant's expulsion would be contrary to S. 37 para. 6 of the Aliens Act. Moreover, the Graz Federal Police Authority had failed to take a decision under S. 54 of the Aliens Act without delay, concerning the question whether the applicant's expulsion to Somalia would be admissible. Finally, given the recent escalation of the situation in Somalia, it was not even sure whether it would actually be possible to carry out an expulsion to that country.   34.    Following the decision of the Independent Administrative Tribunal, the applicant was released.   35.    On 26 April 1995 the Graz Federal Office for Asylum heard the applicant in proceedings, introduced ex officio under S. 37 para. 5 of the Aliens Act. The applicant submitted in particular that the situation had deteriorated since his flight in 1990. He was a member of the Hawiye clan, which at that time was persecuted by the government. Like all big clans it was divided internally. When he had fled, his clan was supporting General Aideed, but it had later broken away from him and would now also be persecuted by his forces. His clan lived north of Mogadishu in the interior of the country. At present several clans were fighting in Mogadishu, mainly those of General Aideed and Ali Mahdi Mohamed. It could not be said which one of them had control of the airport.   36.    On 27 April 1995 the Graz Federal Office for Asylum rendered a decision under S. 37 para. 5 of the Aliens Act. It noted the applicant's submissions in the 1994 proceedings relating to the withdrawal of his right to asylum and his submissions of 26 April 1995. The Federal Office for Asylum found that, even assuming that the applicant risked to be persecuted by other clans upon his return to Somalia, his expulsion was admissible under S. 37 para. 4 of the Aliens Act. He had been convicted for a crime which was punishable with more than five years' imprisonment as, on 7 March 1993, his conviction for attempted robbery had become final. Further, he had, in 1991, been convicted of damage to property and had been sentenced to three weeks' imprisonment, suspended on probation. In December 1992 a criminal information had been filed against him on the suspicion of having caused damage to property. These proceedings had been discontinued. Thus, he had committed further offences, which showed in their entirety that he had a tendency to act aggressively and was, therefore, a danger to the community. Subsequently, the applicant lodged an appeal with the Federal Ministry for the Interior, claiming in particular that the Federal Office for Asylum had failed to assess the current situation in Somalia. These appeal proceedings are still pending.   37.    On 4 May 1995 the Graz Federal Police Authority, acting upon the applicant's request of 30 November 1994, gave a decision under S. 54 of the Aliens Act. It found that there were no substantial grounds for believing that the applicant, upon return to Somalia, would be in danger of being subjected to treatment contrary to S. 37 para. 1 of the said Act. Referring to case-law of the Administrative Court, the Federal Police Authority found that such a danger had to emanate from the State. In Somalia however, a State authority did not exist any more since the Government of the former President Siad Barré had been overthrown. As regards S. 37 para. 2, the applicant had failed to submit that his life or security would be endangered on any of the grounds listed. Moreover, the Graz Federal Office for Asylum had found that the applicant's expulsion was admissible.   38.    On 22 May 1995 the applicant lodged an appeal with the Styria Public Security Authority. He submitted in particular that a danger of inhuman treatment under S. 37 para. 1 of the Aliens Act or under Article 3 of the Convention, respectively, did not necessarily have to emanate from the State. Moreover, the Federal Police Authority had failed to acknowledge that the applicant had been granted asylum and that therefore substantial grounds had been shown for believing that he would be exposed to a danger within the meaning of S. 37 para. 2 if returned to Somalia. The Federal Police Authority had not established any facts to the contrary. These appeal proceedings are also still pending.   B.     The evidence before the Commission   39.    The Commission firstly had regard to the evidence obtained at the domestic level.   40.    In addition, the Commission requested the United Nations High Commissioner for Refugees (UNHCR) for recent information on the situation in Somalia. The most relevant parts of UNHCR's "Background Paper on Somali Refugees and Asylum seekers", dated October 1994, may be summarised as follows.   41.    In January 1991 the Government of the former President Siad Barré was overthrown. Since then a civil war, which is marked by clan allegiances and conflicts, is dominating the country. By the end of 1991 it was evident that no central Government existed any more. In December 1992 U.S. troops arrived in order to restore order. In May 1993 the United Nations mission for Somalia replaced them. It soon got caught up in fighting with faction leader Mohamed Farah Aideed. In March 1994 a cease-fire agreement was concluded in Nairobi between the fifteen main fighting factions, three being assembled in the Somali National Alliance (SNA), which is dominated by General Aideed's faction of the divided USC, the other twelve belonging to the Somalia Salvation Alliance (SSA) backing Ali Mahdi Mohamed. General Aideed's power base is the Habar Gedir Hawiye clan, while Ali Mahdi Mohamed belongs to the Abgal Hawiye clan. A peace conference which was scheduled for May 1994 was postponed to October 1994. As no progress towards peace was made in the summer of 1994, the UN Security Council made first moves to withdraw troops from Somalia. In October 1994 renewed fighting was reported from Mogadishu.     42.    Somali population is described as being ethnically homogeneous. However, Somali people are divided into a number of clan families, the six most important of which are the Dir, Darood, Isaaq, Hawiye, Digil and Rahanweyn. Each of these families is divided into sub-clans and lineage systems. Clan divisions, whereby identification with sub-clans is even more important than with clans, are considered to play a role similar to that of ethnic divisions in other African countries. The whole clan organization is considered to be an unstable, fragile system, characterised at all levels by shifting allegiances. Membership of a particular clan appears to directly place a person at risk vis-a- vis hostile militias based on other clans or sub-clans.   C.     Relevant law   1.     Asylum Act   43.    S. 5 para. 1 subpara. 3 of the Asylum Act (Asylgesetz) provides that a refugee loses the right to asylum, inter alia, if the conditions set out in Article 33 para. 2 of the Geneva Convention relating to the Status of Refugees (see below) are met.   2.     Aliens Act   44.    According to S. 18 para. 1 of the Aliens Act (Fremdengesetz), a residence ban may be issued against an alien if there are reasonable grounds for believing that his stay will disturb public order or security (subpara. 1) or that it will be contrary to the public interest, as provided for in Article 8 para. 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (subpara. 2). Paragraph 2 of S. 18 illustrates cases in which "reasonable grounds" within the meaning of para. 1 are given, e.g. if an alien has been sentenced to more than three months' imprisonment by an Austrian court, and this judgment has become legally effective (subpara. 1).   45.    S. 37 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.   46.    S. 37 para. 2 refers to Article 33 (1) of the Geneva Convention relating to the Status of Refugees (see below), and provides 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 opinions.   47.    S. 37 para. 4 refers to Article 33 para. 2 of the Geneva Convention relating to the Status of Refugees (see below) and states that the expulsion of an alien to a State, in which he would be endangered within the meaning of paragraph 2, may only be carried out if he is, on serious grounds, a threat to the security of the Republic of Austria or if, after a conviction for a crime which is punishable with more than five years' imprisonment, he presents a danger to the community.   48.    S. 37 para. 5 states that the asylum authority (in cases under S. 5 para. 1 subpara. 3 of the Asylum Act), or (in other cases) the Public Security Authority, have to take a decision as to whether the conditions under the aforementioned paragraph 4 are met.   49.    S. 37 para. 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.   50.    S. 54 para. 1 states 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 para. 1 or 2.   51.    S. 54 para. 2 provides that such a request may, inter alia, be made during proceedings concerning the issue of a residence ban and that the alien has to be informed in time of the possibility to make the request.   52.    According to S. 54 para. 3, the decision on an appeal against a ruling that the expulsion to a particular State is admissible has to be taken within a week.   53.    S. 54 para. 4 states that an expulsion may not be carried out as long as the decision relating to the request under S. 54 has not become final.   3.     Geneva Convention relating to the Status of Refugees   54.    Article 33 of the Geneva Convention relating to the Status of Refugees reads:         "1. No Contracting State shall expel or return a refugee in any       manner whatsoever to the frontiers of territories where his life       or freedom would be threatened on account of his race, religion,       nationality, membership of a particular social group or political       opinion.         2. The benefit of the present provision may not, however, be       claimed by a refugee whom there are reasonable grounds for       regarding as a danger to the security of the country in which he       is, or who, having been convicted by a final judgement of a       particularly serious crime, constitutes a danger to the community       of that country."   III.   OPINION OF THE COMMISSION   A.     Complaint declared admissible   55.    The Commission has declared admissible the applicant's complaint that his expulsion to Somalia would expose him to a real risk of torture or inhuman or degrading treatment in that country.   B.     Point at issue   56.    Accordingly, the issue to be determined is whether the applicant's expulsion to Somalia would be in violation of Article 3 (Art. 3) of the Convention.   C.     Article 3 (Art. 3) of the Convention   57.    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."   58.    The applicant submits that his return to Somalia would expose him to a serious risk of being arrested, tortured or executed. In this respect he particularly refers to the decision of the Austrian Ministry for the Interior granting him asylum in 1992.   59.    The Government consider that the application is unfounded. They submit that it is not clear from the Convention organs' case-law that an expulsion to a country in a state of civil war is to be regarded as a violation of Article 3 (Art. 3) of the Convention. There are no circumstances in the case which would militate against the applicant's expulsion to Somalia.   60.    The Commission recalls that Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations including 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).   61.    The Commission, therefore, has 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 Somalia.   62.    In this context the Commission notes that the applicant was granted asylum in Austria in 1992. The Ministry for the Interior, in its decision of 15 May 1992, granting the applicant asylum, referred in particular to the applicant's alleged activities for an opposition party and the notorious situation in his country of origin. When applying for asylum in November 1990, the applicant had submitted that his uncle had been an active member of the USC and that his father and brother, who had supported his activities had been executed in May 1990. Since then he and his whole family had been suspected of being USC members and of having participated in rebellious activities. The Ministry found that his submissions were credible and that there were reasonable grounds for believing that he would be persecuted in case of his return to Somalia.   63.    On 15 July 1994 the Federal Office for Asylum withdrew the applicant's right to asylum on the ground that he had been convicted of attempted robbery, and sentenced to two and a half years' imprisonment. On 12 September 1994 the Ministry for the Interior confirmed this decision. In a further decision of 10 April 1995, following appeal proceedings before the Administrative Court, the Ministry for the Interior again found that the applicant's right to asylum should be withdrawn. It considered in particular that the applicant had committed a particularly serious crime within the meaning of S. 5 para. 1 (3) of the Asylum Act. Further, referring to several other incidents, it found that he had a tendency to act aggressively and was, therefore, a danger to the community.   64.    Subsequently, two sets of proceedings were conducted in order to establish whether the applicant's expulsion to Somalia was admissible. One set of proceedings was introduced ex officio by the Graz Federal Office for Asylum in 1995 under S. 37   para. 5 of the Aliens Act. It heard the applicant, who submitted inter alia that his clan, which had supported General Aideed when he fled, had meanwhile broken away from him and was, therefore, persecuted by his forces. However, the Federal Office for Asylum, in its decision of 27 April 1995, found that, even assuming that the applicant would be persecuted by other clans upon his return to Somalia, his expulsion was admissible as he had been convicted of criminal offences and was a danger to the community. It adduced the same reasons as the Ministry for the Interior in its decision to withdraw the applicant's right to asylum. The second set of proceedings was started upon the applicant's request of 30 November 1994 under S. 54 of the Aliens Act. The applicant, referring in particular to the result of the 1992 asylum proceedings, submitted that his expulsion to Somalia would be contrary to Article 3 (Art. 3) of the Convention. The Graz Federal Police Authority, on 4 May 1995, found that the applicant's expulsion was admissible. It considered in particular that only a danger of ill-treatment emanating from the State could prohibit expulsion. However, in Somalia a State authority did not exist any more. The applicant lodged appeals against both decisions. The appeal proceedings are still pending.   65.    The Commission attaches particular weight to the fact that the applicant was granted asylum in May 1992. The Austrian Ministry for the Interior referred in particular to the applicant's alleged activities for the USC and the general situation in his country and found that he would risk persecution in Somalia. In the asylum proceedings, the Austrian authorities had to consider basically the same elements under Austrian law as the Commission must consider under Article 3 (Art. 3). Moreover, they heard the applicant and, thus had the benefit of a personal impression.   66.    Further, the Commission observes that the competent domestic authorities, in their subsequent decisions relating to the withdrawal of the applicant's right to asylum and to the question whether the applicant's expulsion to Somalia was admissible, have not adduced any arguments in order to establish that the situation had changed to an extent that the applicant would no longer risk persecution, if returned to Somalia. Nor have the Austrian Government made any submissions to this effect in the proceedings before the Commission.   67.    On the basis of the material before the Commission, there is no indication that the situation has changed fundamentally since May 1992, when the applicant was granted asylum. At that time, Somalia had already been in a state of civil war for more than a year, following the overthrow of the Government of President Siad Barré in January 1991. This civil war, which is marked by clan allegiances and conflicts, is still ongoing. It appears that the applicant's clan, which originally supported the USC, one faction of which is led by General Aideed, meanwhile broke away from the latter and would now have to fear persecution from his forces. In this context, the Commission also notes the UNHCR's assessment, according to which membership of a particular clan directly places a person at risk vis-a-vis hostile militias based on other clans or sub-clans.   68.    The position of the Austrian authorities that there is no substantial risk for the applicant since the State authority had ceased to exist in Somalia cannot be accepted. It is sufficient that those who hold substantial power within the State, even though they are not the Government, threaten the life and security of the applicant. That is clearly the situation in the present case, given the powerful position of General Aideed.   69.    In these circumstances, the Commission does not see any reasons to question the assessment made by the Austrian authorities in the asylum proceedings.   70.    In conclusion the Commission finds that substantial grounds have been shown for believing that the applicant faces a real risk of being subjected to treatment contrary to Article 3 (Art. 3), if returned to Somalia.         CONCLUSION   71.    The Commission concludes, unanimously, that in the present case the applicant's expulsion to Somalia would 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)