CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 17 avril 1997

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                           Application No. 34371/97                       by M. U.                       against Austria        The European Commission of Human Rights sitting in private on 17 April 1997, the following members being present:              Mr.    S. TRECHSEL, President            Mrs.   G.H. THUNE            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H. DANELIUS                  F. MARTINEZ                  L. LOUCAIDES                  J.-C. GEUS                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  I. BÉKÉS                  J. MUCHA                  D. SVÁBY                  G. RESS                  A. PERENIC                  C. BÎRSAN                  P. LORENZEN                  K. HERNDL                  E. BIELIUNAS                  E.A. ALKEMA                  M. VILA AMIGÓ            Mrs.   M. HION            MM.    R. NICOLINI                  A. ARABADJIEV              Mr.    H.C. KRÜGER, Secretary to the Commission        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 6 January 1997 by M. U. against Austria and registered on 8 January 1997 under file No. 34371/97;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having regard to the observations submitted by the respondent Government on 30 January 1997 and the observations in reply submitted by the applicant on 20 February 1997;        Having deliberated;        Decides as follows:   THE FACTS        The applicant, born in 1972, is a Turkish national. At the time of lodging his application he was detained at the Salzburg Police Prison. In the proceedings before the Commission, he is represented by Mr. O. Mory, a lawyer practising in Salzburg.   A.    Particular circumstances of the case        The facts of the case, as submitted by the parties, may be summarised as follows.        In December 1991 the applicant came to Austria, where he applied for asylum on the ground that he was a draft evader and that he was persecuted on account of his Kurdish origin.   His asylum request as well as a request for reopening the asylum proceedings, filed in 1995, remained unsuccessful. However, the applicant continued to reside in Austria.        On 13 March 1996 the applicant was arrested on the suspicion of being a member of a criminal organisation, namely the Revolutionary People's Liberation Front (Devrimici Halk Kurtulus-Cephesi - hereinafter "DHK-C"), a sub-organisation of the extreme leftist Revolutionary People's Liberation Party Front (Devrimici Halk Kurtulus Partisi-Cephesi - hereinafter "DHKP-C"), and of having committed attempted arson by throwing, on 8 January 1996, petrol bombs into a house in Wels in which the Turkish "Grey Wolves" have an assembly room. Subsequently, the applicant was taken into detention on remand by the Wels Regional Court (Landesgericht).        On 22 March 1996 the applicant filed a new asylum request. He submitted in particular that the Turkish authorities would almost certainly be informed about the criminal proceedings pending against him in Austria. The mere suspicion of being a member of an extreme leftist organisation and of having participated in attacks directed against a nationalist Turkish association would expose him to being arrested and tortured and to being subjected to the death penalty.        On the same day, the applicant requested the Salzburg Federal Police Authority (Bundespolizeidirektion) to render a declaratory decision under S. 54 of the Aliens Act (Fremdengesetz), to the effect that his expulsion to Turkey would not be permissible. He relied on the same reasons as in his asylum request.        On 25 March 1996 the Federal Office for Asylum (Bundesasylamt) dismissed the applicant's asylum request. It referred to S. 2 paras. 3 and 4 of the Asylum Act (Asylgesetz), according to which asylum is not to be granted to an asylum seeker whose request has already been dismissed, unless the person concerned has returned to his or her country of origin and relies on reasons which occurred after the return. The Federal Office for Asylum noted that the applicant's previous asylum requests had been dismissed. As the applicant had not returned to Turkey after the respective decisions had become final, his submissions were irrelevant.        On 15 November 1996 the Wels Regional Court convicted the applicant of being a member of a criminal organisation, namely the DHK-C, a sub-organisation of the marxist-leninist DHKP-C which is an illegal party in Turkey. Further, it convicted him of having committed attempted arson by throwing, together with two accomplices, petrol bombs into a house in Wels. The Court sentenced the applicant to two years' imprisonment of which sixteen months were suspended on probation. The judgment has not yet become final as appeal proceedings are still pending.        Also on 15 November 1996 the Federal Ministry for the Interior (Bundesministerium für Inneres) dismissed the applicant's appeal as regards the refusal of his asylum request of 22 March 1996. It found that the applicant's submissions did not disclose any new facts which could lead to the granting of asylum. What he allegedly risked in Turkey was prosecution for criminal offences based on the same facts for which he was prosecuted in Austria. There was no reason to consider this as illegitimate persecution on account of his political opinion or any other motive enumerated in S. 1 of the Asylum Act.        On 20 November 1996 the Salzburg Federal Police Authority ordered that the applicant be taken into detention with a view to his expulsion and the applicant was transferred to the Salzburg Police Prison.         On 5 December 1996 the Salzburg Federal Police Authority, referring to S. 18 of the Aliens Act issued a residence ban valid for ten years against the applicant. It referred to the applicant's conviction, and to the fact that he was illegally residing in Austria and had not exercised any gainful profession during his stay in Austria and was unable to show that he disposed of the necessary means for his maintenance. For these reasons he had to be considered a danger to public security. The interests of public order, economic well-being of the country and prevention of crime demanded that a residence ban be issued against him. Finally, the Federal Police Authority ordered that an appeal against its decision would not have suspensive effect. The applicant lodged an appeal and the proceedings are still pending.        On 11 December 1996 the Salzburg Independent Administrative Panel (Unabhängiger Verwaltungssenat) dismissed the applicant's complaint concerning the alleged unlawfulness of his detention. It noted that an alien may be detained if it is necessary inter alia for the conduct of proceedings concerning a residence ban or for carrying out his expulsion. The Independent Administrative Panel found that the applicant's detention first served the interests of the proceedings for issuing a residence ban against him. Subsequently, it was necessary for ensuring that his expulsion could be carried out, as the applicant had explicitly stated that he was not willing to return to Turkey. The Independent Administrative Panel noted the applicant's submissions that his detention was unlawful on the ground that, upon his return, he would be exposed to the death penalty or to torture. However, the question whether an expulsion to a specific State was inadmissible on such grounds had to be assessed in separate proceedings under S. 54 of the Aliens Act.        On 20 December 1996 the applicant filed a complaint with the Administrative Court (Verwaltungsgerichtshof) concerning the refusal of his asylum request of 22 March 1996. He recalled his previous submissions, namely that he would be charged with offences such as treason (S. 125 of the Turkish Criminal Code - hereinafter "TCC"), attempt to overthrow the constitution (SS. 140 and 146 TCC), membership of an illegal association or aiding an armed gang (SS. 168 and 169 TCC). Two of these offences carried the death penalty and the offences under SS. 168 and 169 TCC constituted terrorist offences. In essence, this meant that he would be persecuted for his political opinion. The applicant submitted in particular that the Federal Office for Asylum, when finding that his submissions were irrelevant as he had not returned to Turkey after the refusal of his prior request for asylum, had ignored the Administrative Court's case-law that new facts which arise during an asylum seeker's stay may found his refugee status. The Ministry for the Interior, too, had dismissed his appeal on legal grounds without carrying out any investigations. The authorities had, thus, both failed to establish the necessary facts, namely whether he risked persecution in Turkey, and more specifically for which offences he would be charged and whether or not such criminal proceedings would basically aim at persecuting him on political grounds. Finally, the applicant requested the Administrative Court to grant his complaint suspensive effect.        On 9 January 1997 the Salzburg Federal Police Authority rendered 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 Turkey, would be subjected to treatment contrary to S. 37 para. 1 or 2 of the said Act. The Federal Police Authority noted first that the applicant had not been granted refugee status. Further, it was true that he had been convicted in Austria of being a member of a criminal organisation. However, his submissions that he would be subjected to torture or even the death penalty on account of the facts underlying this conviction contained a mere allegation unsupported by any evidence. The applicant had failed to show that, upon return to Turkey there was any specific danger for him.        On 22 January 1997 the applicant lodged an appeal against this decision. He submitted in particular an expert opinion of the Max- Planck Institute for Foreign and International Criminal Law in Freiburg/Breisgau, according to which the DHKP-C was a kind of "renaming" of parts of the DevSol, which had been classified by the Turkish Supreme Court's case-law as an armed gang within the meaning of S. 168 TCC and that it was, on the facts of the case, likely that the applicant would be prosecuted under this provision. The appeal proceedings are still pending.        On 28 January 1997 the applicant was released.        On 3 March 1997 the Administrative Court rendered a decision on the applicant's request to grant his complaint against the Ministry's decision of 15 November 1996 suspensive effect. It stated that the request was granted with the effect that the applicant obtained the legal status which he had had as an asylum seeker before the contested decision was issued. The main proceedings before the Administrative Court are still pending.   B.    Relevant domestic law        Asylum Act (Asylgesetz 1991)        S. 1 of the 1991 Asylum Act states that a refugee is a person, who left his or her home country on account of a well-founded fear of being persecuted on account of his or her race, religion, nationality, membership of a particular social group or political opinion.        S. 2 para. 3 excludes the granting of asylum to an alien whose asylum request has been dismissed in Austria or in any other country adhering to the Geneva Convention relating to the Status of Refugees (paragraph 3). This provision is not applicable to an alien who, following the final refusal of his asylum request, has returned to his or her country of origin and relies on facts which have occurred after the return (paragraph 4).        Aliens Act (Fremdengesetz 1992)        S. 18 para. 1 of the Aliens Act provides that a residence ban is to be issued against an alien if there are reasonable grounds for believing that his stay will disturb public order or security or that it will be contrary to public interest as provided for in Article 8 para. 2 of the European Convention on Human Rights. Paragraph 2 illustrates cases in which "reasonable grounds" within the meaning of para. 1 are given, e.g. if an alien has, by final decision of an Austrian court, been sentenced to more than three months' imprisonment, or if he is unable to show that he disposes of the necessary means for his maintenance.        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 specific State if there are firm reasons to believe that he would be in danger of being subjected to inhuman treatment or punishment or to the death penalty in that State.        S. 37 para. 2 refers to Article 33 (1) of the Refugee Convention, 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 liberty would be endangered on account of his race, religion, nationality, membership of a particular social group or political opinion.        According to S. 37 para. 6 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.        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.        S. 54 para. 2 provides that such a request may only be made during proceedings concerning the issuing of an expulsion order or of a residence ban and that the alien has to be informed in time of the possibility to make the request.        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.     COMPLAINTS   1.    The applicant complains that his expulsion to Turkey would expose him to a real risk of being subjected to the death penalty and to torture. He refers in particular to his conviction of 15 November 1996 by the Wels Regional Court from which it follows that he is a member of the marxist-leninist DHKP-C and participated in an attack on an assembly room of the "Grey Wolves" which are a Turkish association of the extreme right. Further, he submits that the Turkish authorities are likely to know about the criminal proceedings which were conducted against him in Austria and that, upon his return to Turkey, he would be prosecuted for treason or attempt to overthrow the constitution, i.e. offences which carry the death penalty, or for membership or support of an illegal association, which are deemed to be terrorist offences. In this context, he alleges it is likely that he will be arrested and tortured. The applicant invokes Articles 2 and 3 of the Convention.   2.    The applicant complains under Article 5 of the Convention as regards his detention with a view to his expulsion, claiming that he was not entitled to take proceedings in which a court decides on the lawfulness of his detention. He appears to argue that his detention cannot be justified as   the envisaged expulsion to Turkey as such would not be permissible and that the police authorities which review this question are not independent.   3.    In his observations of 20 February 1997 the applicant also complains that the proceedings under S. 54 of the Aliens Act do not provide an effective remedy against his expulsion. He complains that the police authorities which are competent to decide lack the necessary independence and that expulsions are often carried out immediately after the negative decision has been taken at second instance, even if a complaint and a request to grant this complaint suspensive effect has been lodged with the Constitutional Court or the Administrative Court. Further, he claims that his case is an example of the bad quality of the proceedings. He submits in particular that the Salzburg Federal Police Authority did not carry out a proper examination of the situation in Turkey, disregarded substantive parts of his submissions and failed to hear him. The applicant invokes Articles 13 and 14 of the Convention.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 6 January 1997 and registered on 8 January 1997.        On 8 January 1997 the President of the Commission decided to apply Rule 36 of the Commission's Rules of Procedure and to communicate to the respondent Government the applicant's complaint that his expulsion to Turkey would expose him to a real risk of being subjected to the death penalty or of being tortured.        The Government's written observations were submitted on 30 January 1997. The applicant replied on 20 February 1997.        On 6 March 1997 the Commission decided to prolong the application of Rule 36 of its Rules of Procedure.     THE LAW        The applicant complains that his expulsion to Turkey would expose him to a real risk of being subjected to the death penalty and to torture.   He invokes Articles 2 and 3 (Art. 2, 3) of the Convention.        Article 2 para. 1 (Art. 2-1) of the Convention reads as follows:        "Everyone's right to life shall be protected by law.   No one      shall be deprived of his life intentionally save in the execution      of a sentence of a court following his conviction of a crime for      which this penalty is provided by law."        Article 3 (Art. 3) of the Convention reads as follows:        "No one shall be subjected to torture or to inhuman or degrading      treatment or punishment."        The Government submit that the applicant failed to exhaust domestic remedies in accordance with Article 26 (Art. 26) of the Convention. They submit in particular that the proceedings under S. 54 of the Aliens Act with the purpose of establishing whether or not the applicant's expulsion to Turkey is permissible are still pending and that the applicant is not at risk of being expelled as long as no final decision has been taken in these proceedings.        The applicant contests the Government's view. He submits that the proceedings under S. 54 of the Aliens Act do not provide an effective remedy as the decisions are taken by the police authorities which are bound by instructions from the Ministry for the Interior, i.e. the authority which refused his asylum request. Moreover, the proceedings do not offer any procedural guarantees, as they do not even require that the person concerned be heard. The applicant alleges that, in case of a negative decision at second instance, the expulsion is often carried out immediately. Further, he argues that not even a positive decision in the proceedings under S. 54 offers sufficient protection, as it does neither confer a right to residence nor a right to take up employment to the person concerned, who thus has nothing more than the status of an illegal foreigner who, however, cannot be deported.        The Commission recalls that the obligation to exhaust domestic remedies requires the use of remedies which are likely to be effective, sufficient and accessible (cf. No. 23413/94, Dec. 28.11.95, D.R. 83, p. 31). Further, the Commission recalls its constant case-law according to which a remedy which does not suspend execution of a decision to expel an alien to a specified country where he or she claims to risk inhuman treatment, is not effective for the purposes of Article 26 (Art. 26) of the Convention (cf. 17550/90 and 17825/91, Dec. 4.6.91, D.R. 70, p. 298, 315 with further references).        The Commission notes that the Administrative Court, on 3 March 1997, i.e. after the parties filed their observations, granted the applicant's complaint against the refusal of his asylum request of 22 March 1996 suspensive effect.        The Commission recalls that, in a recent decision also concerning an asylum seeker's imminent expulsion to Turkey, it has found that a complaint against a negative asylum decision to the Administrative Court, if granted suspensive effect, provides an effective remedy (cf. No. 33052/96, Gündogdu v. Austria, Dec. 6.3.97, unpublished). The reasons, summarised briefly, were that the Administrative Court has to consider basically the same elements as the Commission has to consider under Article 3 (Art. 3), namely whether the applicant has a well- founded fear of persecution or of being subjected to the death penalty upon return; and that the Administrative Court may quash the negative asylum decision if it suffers from procedural defects or from errors of law.        The Commission therefore finds that the proceedings currently pending before the Administrative Court provide an effective remedy as regards the applicant's complaint that his expulsion to Turkey would expose him to a real risk of being tortured and subjected to the death penalty. It may be added that, like in the above-mentioned case, there are no indications that the police authorities would proceed to the applicant's expulsion while the proceedings before the Administrative Court are still pending. In this context, the Commission notes in particular that the applicant has meanwhile been released.        Having regard to the above findings, the Commission is not required to decide whether, in the particular circumstances of the case, the proceedings under S. 54 of the Aliens Act also provide an effective remedy.        In conclusion, the Commission finds that, concerning his above complaint, the applicant has failed to exhaust domestic remedies as required by Article 26 (Art. 26) of the Convention.        It follows that this part of the application must be rejected in accordance with Article 27 para. 3 (Art. 27-3) of the Convention.   2.    The applicant complains under Article 5 (Art. 5) of the Convention that his detention with a view to his expulsion was unlawful and that he was not entitled to take proceedings in which a court decides on the lawfulness of his detention.        Article 5 (Art. 5) of the Convention, so far as relevant, reads as follows:        "1.    Everyone has the right to liberty and security of person.      No one shall be deprived of his liberty save in the following      cases and in accordance with a procedure prescribed by law:              ...              f.     the lawful arrest or detention of a person to prevent      his effecting an unauthorised entry into the country or of a      person against whom action is being taken with a view to      deportation or extradition.        4.     Everyone who is deprived of his liberty by arrest or      detention shall be entitled to take proceedings by which the      lawfulness of his detention shall be decided speedily by a court      and his release ordered if the detention is not lawful."        The Commission finds, on the basis of the material before it, that the applicant was, from 20 November 1996 to 28 January 1997, detained with a view to his deportation within the meaning of Article 5 para. 1 (f) (Art. 5-1-f). The applicant has failed to substantiate that his detention was not in conformity with domestic law.        The Commission recalls that all that is required under Article 5 para. 1 (f) (Art. 5-1-f), is that "action is being taken with a view to deportation" and that it is, therefore, immaterial for the purposes of this provision, whether the underlying decision to expel can be justified under national or Convention law (Eur. Court HR, Chahal v. the United Kingdom judgment of 15 November 1996, to be published in Reports of Judgments and Decisions 1996, para. 112).        In the present case, the Salzburg Federal Police Authority issued a residence ban against the applicant on 5 December 1996, i.e. a few days after he had been taken into detention with a view to his deportation. Moreover, it ordered that an appeal should not have suspensive effect. Thus, the residence ban became immediately enforceable. In these circumstances, the Commission finds that the applicant's detention was in conformity with Article 5 para. 1 (f) (Art. 5-1-f).        Further, the Commission has examined the applicant's complaint under Article 5 para. 4 (Art. 5-4). It recalls that the judicial review under this Article should be wide enough to bear on those conditions which are essential for the "lawful" detention of a person according to Article 5 para. 1 (Art. 5-1). In cases of detention with a view to deportation it follows from the requirements of Article 5 para. 1 (Art. 5-1) that Article 5 para. 4 (Art. 5-4) does not demand that the domestic courts should have the power to review whether the underlying decision to expel could be justified under national or Convention law (Chahal v. the United Kingdom judgment, loc. cit., paras. 127-128).        The Commission notes that the applicant lodged a complaint with the Independent Administrative Panel, which found that his detention was lawful as it served, first, the issuing of a residence ban and, subsequently, was necessary to ensure that this expulsion could be carried out. It is true that the Independent Administrative Panel could not examine the question whether the applicant's expulsion to Turkey was permissible. However, in view of the above case-law, the applicant's submissions do not disclose any appearance of a violation of Article 5 para. 4 (Art. 5-4) of the Convention.        It follows that this part of the application is manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.    The applicant complains that the proceedings under S. 54 of the Aliens Act do not provide an effective remedy against his expulsion. He invokes Article 13 and 14 (Art. 13, 14) of the Convention.        Article 13 (Art. 13) reads as follows:        "Everyone whose rights and freedoms as set forth in this      Convention are violated shall have an effective remedy before a      national authority notwithstanding that the violation has been      committed by persons acting in an official capacity."        Article 14 (Art. 14) reads as follows:        "The enjoyment of the rights and freedoms set forth in this      Convention shall be secured without discrimination on any ground      such as sex, race, colour, language, religion, political or other      opinion, national or social origin, association with a national      minority, property, birth or other status."        The Commission refers to its above finding that the complaint to the Administrative Court, which has been granted suspensive effect, provides an effective remedy as regards the applicant's complaint that his expulsion to Turkey would expose him to a real risk of being tortured or of being subjected to the death penalty. For this reason, the applicant, in the particular circumstances of the case, cannot claim to be a victim of a violation of his right to an effective remedy under Article 13 (Art. 13).        Further, the Commission finds that the applicant's submissions do not disclose any appearance of a violation of Article 14 (Art. 14) of the Convention.        In conclusion, the Commission finds that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.           H.C. KRÜGER                          S. TRECHSEL          Secretary                            President      to the Commission                     of the Commission