CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 18 septembre 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. 35713/97                       by A.Y.                       against Austria         The European Commission of Human Rights sitting in private on 18 September 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                  C.L. ROZAKIS                  L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  D. SVÁBY                  G. RESS                  A. PERENIC                  C. BÎRSAN                  P. LORENZEN                  K. HERNDL                  E. BIELIUNAS                  E.A. ALKEMA            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 21 April 1997 by A.Y. against Austria and registered on 22 April 1997 under file No. 35713/97;         Having regard to :   -      the reports provided for in Rule 47 of the Rules of Procedure of       the Commission;   -      the observations submitted by the respondent Government on       2 June 1997 and the observations in reply submitted by the       applicant on 26 June 1997;         Having deliberated;         Decides as follows:   THE FACTS         The applicant, born in 1964, is a Turkish national.   At the time of lodging his application he was detained at the Linz Police Prison. In the proceedings before the Commission, he is represented by Mr. W. Fromherz, a lawyer practising in Linz.   A.     Particular circumstances of the case         The facts of the case, as submitted by the parties, may be summarised as follows.         On 8 December 1996 the applicant was arrested in the vicinity of the border between Hungary and Austria.   He carried a passport giving the name of I.E.         On 9 December the applicant was questioned by the Neusiedl District Administrative Authority (Bezirkshauptmannschaft).   He stated that he had left Turkey seven months earlier, had first gone to Rumania and then via the Czech Republic to Germany.   From Germany he had travelled to Austria, had stayed some time in Vienna and at the time of his arrest he had tried to cross the Hungarian border in order to request asylum in Hungary.   The District Administrative Authority ordered the applicant's detention with a view to his expulsion as he was suspected of having illegally entered Austria.   Furthermore, the Authority issued a deportation order against the applicant on the ground that he was illegally staying in Austria.         On 11 December 1996 while in detention with a view to his expulsion the applicant applied for asylum.   On 13 December 1996 he was questioned by the Federal Asylum Office (Bundesasylamt).         The applicant admitted that his submissions before the District Administrative Authority had not been correct.   He submitted that between 1981 and 1984 he had been imprisoned for political reasons. In 1992 he had taken up work at the Istanbul Post Office.   In May 1993 he had become a local Labour Union representative and in this function had established contacts with left wing organisations. In 1995 he had appeared in the Turkish television in a programme concerning disappeared persons.   Subsequently he had been subject to police surveillance.   On 10 April 1996 a person, who later turned out to be police informant, tricked him into a meeting in the Asian part of Istanbul.   There he had been arrested by the police and brought to the anti-terror brigade where he had been subject to interrogations and torture for ten days.   He had been questioned, inter alia, on an assault on a Labour Union Office.   Since he had not made a confession he had been released.   On 27 April 1996 the police informant had been found shot.   The applicant then had left Istanbul as had been informed that the police was waiting for him at his apartment.   On 5 May 1996 he had returned and had again been arrested as the police had caught a letter from S.A., the chairman of DHKP-C (Revolutionary People's Liberation Party Front), asking the applicant to procure weapons.   On 9 May 1996 he had been questioned by a court on this event and had been released.   On 12 July 1996 shop owners in Istanbul were called upon to keep their shops closed.   Since one coffee-shop had not complied with this call, the applicant had set fire to it with a bomb.   On this occasion he had been recognised by witnesses.   He had left Istanbul, procured a forged identity card and left Turkey.   He had travelled to Bulgaria, Rumania, Hungary and on 8 December 1996 he had entered Austria.         The applicant did not appeal against the deportation order and he did not file a request for an order under S. 54 of the Aliens Act prohibiting expulsion to Turkey.         On 14 January 1997 the Federal Asylum Office dismissed his request for asylum.   It stated that the applicant, according to his own submissions, had contacts with the DHKP-C which was a terrorist organisation frequently using violence.   It was doubtful whether the applicant had actually been tortured while being in police custody. Moreover any ill-treatment suffered could not be considered as persecution because it was not based on discriminatory grounds, like race or belief.   The acts of which the applicant had been suspected must be considered as serious crimes which were also investigated in western democracies.   Such investigation measures therefore did not amount to persecution based on political grounds.         On 11 February 1997 the applicant appealed.         On 18 March 1997 the Minister for the Interior dismissed his appeal.   The Minister found that refugee status could not be conferred on the applicant pursuant to Article 1 F (b) of the Refugee Convention. According to this provision the Refugee Convention does not apply to persons who before being admitted to the country of asylum had committed serious non political offences.   The Minister noted that the applicant, according to his own submissions, had, on 12 July 1996, set fire to a coffee shop with a bomb, i.e. committed arson.   Under S. 169 of the Austrian Penal Code the offence of arson carried the penalty of imprisonment of up to ten years and therefore had to be considered a serious offence.   In any event the applicant had stayed in Bulgaria, Rumania and Hungary, or in Germany, if one would believe in the statements made at his first questioning before the Asylum Office, before arriving in Austria, where he could have found protection.         On 27 March 1997 the applicant filed a complaint with the Administrative Court (Verwaltungsgerichtshof).   He also requested that suspensive effect be granted to his complaint.         On 10 April 1997 the Administrative Court granted suspensive effect to the applicant's complaint and on 23 April 1997 the applicant was released from detention with a view to his expulsion.   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 under Article 3 of the Convention that his expulsion to Turkey would expose him to a real risk of being subjected to inhuman treatment or torture. 2.     In his observations of 26 June 1997 the applicant also complains under Article 13 of the Convention that he did not have an effective remedy against his expulsion.   All remedies referred to by the Government, namely proceedings under S. 54 of the Aliens Act, a request for staying an expulsion under S. 36 of the Aliens Act, a complaint to the Independent Administrative Panel concerning the lawfulness of his detention with a view to expulsion and complaints to the Administrative Court and the Constitutional Court, could not be considered remedies sufficiently effective for the purpose of Article 13 of the Convention.     PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 21 April 1997 and registered on 22 April 1997.         On 22 April 1997 the President of the Commission decided to apply Rule 36 of the Commission's Rules of Procedure and to communicate the application to the respondent Government.         The Government's written observations were submitted on 2 June 1997, after an extension of the time-limit fixed for that purpose. The applicant replied on 26 June 1997.         On 29 May 1997 and on 11 July 1997 the Commission decided to prolong the application of Rule 36 of its Rules of Procedure.     THE LAW         The applicant complains under Article 3 (Art. 3) of the Convention that his expulsion to Turkey would expose him to a real risk of being subjected to inhuman treatment or torture.         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 applicant had not appealed against the deportation order, that he had not filed a request for an order under S. 54 of the Aliens Act prohibiting his deportation to Turkey, that he had not requested, on the same grounds, a stay of the enforcement of the deportation order and that he had not filed a complaint with the Constitutional Court against the Minister's decision not to grant him the status of refugee.   In any event, the Administrative Court has granted suspensive effect to the applicant's complaint on 10 April 1997 and there is no risk that the applicant would be expelled to Turkey before the Administrative Court would decide on his complaint.         This is contested by the applicant.   In his view he could not be expected to make use of the remedies mentioned by the Government as these remedies are not effective.   He could not be required to file an appeal against the deportation order because this order was correct since he had entered Austria unlawfully.   Also a request for an order under S. 54 of the Aliens Act could not be considered an effective remedy.   He could not have asked for such an order since it requires that a deportation order has not yet become final.   However, for the reasons mentioned above he did not have any reason to file an appeal against the deportation order.   Moreover he had not been informed sufficiently about the possibility to file such a request.   Also a request for a stay of the enforcement of the deportation order did not constitute an effective remedy as only a favourable decision would make the enforcement impossible.   He could also not be expected to file a complaint with the Constitutional Court since the Austrian Constitution does not guarantee a right to asylum.         As regards the asylum proceedings the applicant acknowledges that meanwhile the Administrative Court has granted suspensive effect.   This measure, however, could not be considered as an adequate protection against deportation to Turkey because the applicant had no right to reside in Austria.         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 10 April 1997 had granted the applicant's complaint against the refusal of his asylum request of 22 March 1996 suspensive effect.         The Commission recalls that, in recent decisions 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; No. 34371/97, M.U. v. Austria, Dec. 17.4.97, unpublished).   The reasons, summarised briefly, were that the Administrative Court has to examine, basically, the same elements as the Commission does 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 subjected to inhuman treatment or torture.   It may be added that, like in the above-mentioned cases, 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.     In his observations of 26 June 1997 the applicant also complains under Article 13 (Art. 13) of the Convention that he did not have an effective remedy against his expulsion.   All the remedies referred to by the Government above could not be considered remedies sufficiently effective for the purpose of Article 13 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."         The Commission, assuming that the applicant has raised this complaint in time as required by Article 26 (Art. 26) of the Convention, 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 allegation that his expulsion to Turkey would expose him to a real risk of being subjected to inhuman treatment or torture. For this reason, the applicant, in the particular circumstances of the case, has at his disposal an effective remedy under Article 13 (Art. 13).         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