CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 20 octobre 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. 31007/96                       by Fadil MUHADRI                       against Austria          The European Commission of Human Rights sitting in private on 20 October 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                  H. DANELIUS                  F. MARTINEZ                  C.L. ROZAKIS                  L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                  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                  M. VILA AMIGÓ            Mrs    M. HION            MM     R. NICOLINI                  A. ARABADJIEV              Mr     M. de SALVIA, 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 4 April 1996 by Fadil MUHADRI against Austria and registered on 15 April 1996 under file No. 31007/96;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having deliberated;        Decides as follows:   THE FACTS        The applicant, born in 1973, is a Kosovo-Albanian and a national of Yugoslavia.   He is currently residing in Baden, Lower Austria. Before the Commission he is represented by Mr. H. Pochieser, a lawyer practising in Vienna.        The facts, as submitted by the applicant, may be summarised as follows.   A.    Particular circumstances of the case        On 2 September 1991 the applicant came to Austria and requested asylum on 3 September 1991. The applicant submitted that he had left Yugoslavia when the civil war broke out, as he did not want to serve in the Serbian army which had always oppressed the Albanian minority living in Kosovo, to which he belonged. He explicitly stated that he had not yet received a call-up order. On 22 January 1992 the Lower Austrian Public Security Authority (Sicherheitsdirektion) dismissed the applicant's asylum request. On 12 October 1993 the Federal Ministry for the Interior (Bundesministerium für Inneres) dismissed his appeal, in which he had submitted inter alia that an attempt to serve a call-up order on him had been made before he left the country. On 18 January 1995 the Administrative Court (Verwaltungsgerichtshof) quashed the decision of the Ministry for the Interior. On 11 December 1995 the Ministry for the Interior again dismissed the applicant's appeal. It found, in particular, that his submissions as to whether or not he had been called up to serve in the army   were vague and unsubstantiated. Even assuming that the army had intended to conscript the applicant, there were no indications that he would suffer persecution within the meaning of the asylum law. On 13 May 1996 the Constitutional Court (Verfassungsgerichtshof) refused to entertain the complaint and referred the case to the Administrative Court. It appears from the applicant's submissions that the Administrative Court has not granted the complaint suspensive effect and that the proceedings are still pending.        On 22 October 1993 the applicant requested the Tulln District Administrative Authority (Bezirkshauptmannschaft) to take a declaratory decision under S. 54 of the Aliens Act (Fremdengesetz) to the effect that his expulsion to Yugoslavia would be inadmissible. He submitted that he would run the risk of inhuman treatment and imprisonment. On 11 November 1993 the Tulln District Administrative Authority dismissed the applicant's request.        On 10 May 1994 the Lower Austrian Public Security Authority dismissed the applicant's appeal. It referred in particular to a report of the International Helsinki Federation for Human Rights according to which the situation of Kosovo-Albanians had deteriorated since 1989. Until the end of 1992 60,000 Albanians were believed to have left the country in order to evade military service. Deserters risked one to fifteen years' imprisonment.   However, the death penalty, applicable in times of war, had been abolished by moratorium of 4 February 1993. Further, it appeared that proceedings were only instituted against reserve officers, though Kosovo-Albanian officers might face a higher risk as they were considered to have organised a resistance movement. However, the terms of imprisonment applied were usually between one and two years. The authority stated that a punishment for evading military service did not constitute a persecution either under the Geneva Convention or under Section 37 para. 2 of the Aliens Act.   Moreover, the authority, referring to the asylum proceedings, found that it was not even established whether the applicant had received a call-up order.   In any case, having regard to the above findings, there were no serious reasons to believe that he would be subjected to ill- treatment upon his return. On 28 February 1995 the Constitutional Court refused to entertain the complaint and referred it to the Administrative Court. On 7 September 1995, the Administrative Court dismissed the applicant's complaint.        On 23 June 1994 the Tulln District Administrative Authority (Bezirkshauptmannschaft) issued a residence ban against the applicant, valid for ten years. It found that he had, in May 1993, when travelling from the Czech Republic, illegally re-entered Austria, using his brother's passport and giving his brother's name and identity upon being questioned by the authorities. On 10 October 1994 the Lower Austrian Public Security Authority dismissed the applicant's appeal. On 26 February 1996 the Constitutional Court refused to entertain the applicant's complaint and subsequently referred the case to the Administrative Court. Upon the applicant's request, the Administrative Court granted the complaint suspensive effect.        On 16 April 1997 the Administrative Court dismissed the applicant's complaint. It noted that it was uncontested that the applicant had used his brother's   passport and identity when re- entering Austria in   May 1993. Further, the Court noted that the applicant had been found guilty of the administrative offence of aiding and abetting unlawful immigration (Schlepperei). In these circumstances it found that the residence ban was justified in the interests of public safety as provided for under Article 8 para. 2 of the European Convention of Human Rights. The Administrative Court confirmed the finding of the Lower Austrian Public Security Authority that the interests in the maintenance of public safety outweighed the applicant's private interests in staying in Austria.   B.    Relevant domestic law        Section 37 of the 1992 Aliens Act (Fremdengesetz 1992) forbids the expulsion of an alien to a State where there are solid reasons to believe that he will be exposed to the risk of inhuman treatment or punishment or the death penalty (para. 1); or that his life or liberty will be at risk on account of his race, religion, nationality, membership of a particular social group or political opinion (para. 2, which refers to Article 33 para. 1 of the Geneva Convention).        Under Section 54 the competent authority has to determine, at the alien's request, whether there are solid reasons to believe that he would be at risk, within the meaning of Section 37 para. 1 or para. 2, in a particular State named by him.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 4 April 1996 and registered on 15 April 1996.        On 19 April 1996 the Commission decided not to apply Rule 36 of its Rules of Procedure.       COMPLAINTS        The applicant complains that, if he were returned to Yugoslavia, he risks to be arrested, imprisoned or even sentenced to death for having evaded military service or to be ill-treated on account of his Albanian origin. He submits that the moratorium by which the death penalty has been suspended could be revoked at any time. He invokes Articles 3 and 5 of the Convention as well as Article 1 of Protocol No. 6.     THE LAW   1.    The applicant complains that his expulsion to Yugoslavia would expose him to the risk of being arrested, ill-treated or sentenced to death. He invokes Articles 3 and 5 (Art. 3, 5) of the Convention and Article 1 of Protocol No. 6 (P6-1).        The Commission notes that three sets of proceedings were conducted by the Austrian authorities. In the asylum proceedings the applicant's asylum request was dismissed by the Ministry for the Interior. The proceedings are still pending before the Administrative Court. However, it appears that the Administrative Court has not granted the complaint suspensive effect. In a second set of proceedings the applicant requested that a declaratory decision be taken under S. 54 of the Aliens Act that his expulsion to Yugoslavia would be inadmissible.   This request was finally dismissed by the Administrative Court on 7 September 1995. In a third set of proceedings a residence ban valid for ten years was issued against the applicant. This decision was confirmed by the Administrative Court on 16 April 1997.   2.    The Commission recalls that Article 1 of Protocol No. 6 (P6-1) provides that the death penalty shall be abolished and that no one shall be condemned to such penalty or executed. The question, therefore, arises whether a contracting State's responsibility may be engaged under this Article where an alien is to be expelled to a State where he is seriously at risk of being sentenced to death (cf. No. 32025/96, Dec. 25.10.96, D.R. 87, p. 173 at p. 181). In the present case, however, it is undisputed that the death penalty was suspended in Yugoslavia by a moratorium in 1993. The mere allegation, otherwise unsubstantiated, that the said moratorium could be revoked at any time does not suffice to bring an expulsion measure within the ambit of Article 1 of Protocol No. 6 (P6-1).   3.    However, the applicant's complaints that, upon his return to Yugoslavia, he risks to be arrested and imprisoned for having evaded military service or to be ill-treated on account of his Albanian origin may fall within the scope of Article 3 (Art. 3) of the Convention which reads as follows:        "No one shall be subjected to torture or to inhuman or degrading      treatment or punishment."        The Commission recalls that the Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations including their obligations under the Convention to control the entry, residence and expulsion of aliens. It also notes that the right to political asylum is not contained in either the Convention or its Protocols. However, expulsion by a Contracting State of an asylum seeker may give rise to an issue under Article 3 (Art. 3) of the Convention, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned would face 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 expelled (see Eur. Court HR, Ahmed v. Austria judgment of 17 December 1996, Reports 1996-VI, No. 26, paras. 38-39; Vilvarajah and Others v. the United Kingdom judgment of 30 October 1991, Series A no. 215, p. 34, paras. 102-103).        The Commission notes the finding of the Lower Austrian Public Security Authority in the proceedings under S. 54 of the Aliens Act that it has not been established whether the applicant had received a call-up order before he had left Yugoslavia in 1991.   In its decision of 10 May 1994 the Lower Austrian Public Security Authority dealt in detail with the position of deserters and the punishment they possibly have to expect and came to the conclusion that there was no reason to believe that the applicant would be subjected to ill-treatment let alone that he would be sentenced to death upon his return. Even assuming that the applicant risks imprisonment for having evaded military service, the Commission does not find such a penalty so severe as to raise an issue under Article 3 (Art. 3) of the Convention (cf. No. 11017/84, Dec. 13.3.86, D.R. 46, p. 176 at p. 181; No. 22325/93, Dec. 8.9.93, unpublished).   As concerns the applicant's allegation that he might be ill-treated on account of his Albanian origin, the Commission recalls that a mere possibility of ill-treatment is not in itself sufficient to give rise to a breach of Article 3 (Art. 3) of the Convention (Vilvarajah and Others v. the United Kingdom judgment, loc. cit., p. 37, para. 111).        In conclusion, the Commission does not consider it established that the applicant would be exposed to a real risk of being subjected to treatment contrary to Article 3 (Art. 3) of the Convention upon his return to Yugoslavia. The Commission finally considers that no separate issue arises under Article 5 (Art. 5) of the Convention.        It follows that 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.              M. de SALVIA                                   S. TRECHSEL       Secretary                                      President    to the Commission                              of the Commission