CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 23 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. 37206/97                       by Leon TAGADRIAN                       against Germany            The European Commission of Human Rights (First Chamber) sitting in private on 23 October 1997, the following members being present:              Mrs   J. LIDDY, President            MM    M.P. PELLONPÄÄ                 E. BUSUTTIL                 A. WEITZEL                 C.L. ROZAKIS                 L. LOUCAIDES                 B. CONFORTI                 N. BRATZA                 I. BÉKÉS                 G. RESS                 A. PERENIC                 C. BÎRSAN                 K. HERNDL                 M. VILA AMIGÓ            Mrs   M. HION            Mr    R. NICOLINI              Mrs   M.F. BUQUICCHIO, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 5 March 1997 by Leon TAGADRIAN against Germany and registered on 1 August 1997 under file No. 37206/97;        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 1964, is a national of Georgia.   He is currently living with his wife and two children in Tettnang.   In the proceedings before the Commission, he is represented by Mr J. Badkowski, a lawyer practising in Frankfurt am Main.        The facts of the case, as submitted by the applicant, may be summarised as follows.        On 2 June 1993 the applicant and his family entered the territory of the Federal Republic of Germany.   He and his family applied for asylum on 4 June 1993.        On 10 December 1993 the Federal Office for Refugees (Bundesamt für die Anerkennung ausländischer Flüchtlinge) dismissed the requests for asylum and ordered the applicant and his family to leave the German territory within one month and ordered their deportation in case they should not leave voluntarily.   The Office noted in particular the applicant's submissions that they had left Georgia legally with a regular flight on account of the chaotic and warlike situation.   The applicant had further stated that he had been ill-treated by soldiers and also civilian persons and his family had been threatened in order to compel him to fight as a soldier against Abkhazia and that he feared being imprisoned or killed upon his return.   The Office considered that there was no concrete information on a warlike situation at the time when the applicant and his family left Georgia.   In any event, the general risks as a consequence of a situation of war or civil war did not constitute political persecution justifying political asylum. Moreover, there was nothing to show that the applicant and his family risked any sanctions upon their return to Georgia.        On 4 April 1995 the Sigmaringen Administrative Court (Verwaltungsgericht) dismissed the action filed by the applicant and his family against the refusal of asylum and their envisaged expulsion.        As regards the applicant's statements at the oral hearing, the Administrative Court noted that he had claimed to be of Armenian origin.   In 1986 he had been employed by the Georgian Council of Ministers as a photographer and had inter alia taken photographs at public events such as strikes in Tbilisi.   He had resigned in 1990 and started to work as a shoe-maker.   In November 1992 he had been arrested by soldiers, had been questioned and ill-treated in order to force him to join a legion fighting against Abkhazia.   He had been released the next morning.   As from January 1993 he had been in hiding.   In January and February 1993, he had again received orders to join the armed forces.   Although there was no longer war in Georgia he feared that he would be killed upon his return.        The Administrative Court found that the applicant had failed to show any credible reasons in support of his request for asylum.   In particular, the applicant's alleged problems as a photographer had not given visa to his emigration from Georgia.   There were no indication that the Georgian authorities were responsible for the applicant's short-term detention and ill-treatment by paramilitary groups.   The Court regarded as decisive that the applicant had been able to travel without problems to Ukraine in February 1993.   It did not appear reasonable that he could have returned to Georgia if he had feared political persecution.   He had not submitted any plausible reasons for his subsequent decision to leave Georgia.   Moreover, the applicant's statements did not appear credible; in particular there were contradictions between his and his wife's statements as to the events in November 1992 and the period of the applicant's hiding.        In these and the following proceedings, the applicant was represented by counsel.        On 26 September 1995 the Baden Württemberg Administrative Court of Appeal (Verwaltungsgerichtshof) dismissed the request for leave to appeal (Antrag auf Zulassung der Berufung), lodged by the applicant and his family.   The Court of Appeal found that they had failed to show that their case raised any question of fundamental importance.        On 27 November 1996 the Federal Office for Refugees dismissed the applicant's and his family's request, dated 8 May 1996, to conduct further asylum proceedings.   The Office noted that the applicant, represented by Mr Badkowski, had filed a Georgian court judgment of 14 February 1995, sentencing him to five years' imprisonment.   The Office observed that pursuant to the relevant legal provisions, a further set of asylum proceedings was only admissible if there were reasons to reopen the proceedings and the refugee had been prevented, through no fault of his own, from submitting these reasons in the first set of proceedings.   Moreover, the change of circumstances had to be presented in a conclusive manner. In the applicant's case, his earlier and his new submissions were incoherent.   He had not advanced any plausible explanation as to why he had only referred to his alleged conviction in Georgia at this stage.   In any event, the said judgment was false.   In this respect, the Office noted that the District Court which had allegedly rendered the judgment was not competent to adjudge the criminal offences in question, that it was unusual that a period of more than one year was fixed until the commencement of imprisonment and that under the file number indicated on the said judgment the District Court in question had rendered a judgment on 10 March 1995 in another case relating to drug trafficking.        On 17 December 1996 the applicant and his family filed an action with the Sigmaringen Administrative Court to challenge the decision of 27 November 1996.        On 13 February 1997 the Sigmaringen Administrative Court refused the applicant's and his family's request for interim measures to stop their expulsion.   The main proceedings are still pending.     COMPLAINTS        The applicant complains about his envisaged expulsion to Georgia where he fears reprisals and imprisonment on account of his former activities as a photographer.   In this respect, he refers to the general situation in Georgia where, according to human rights reports, journalists, active members of dissident organisations and supporters of the government of the former president Gamsakhurdia are at risk in Georgia.   He complains in particular that an expulsion pending court proceedings challenging the refusal to reopen asylum proceedings renders the right to seek asylum ineffective.   He does not invoke any particular provision of the Convention.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 5 March 1997.   On 13 March 1997 the Acting President of the Commission decided not to apply Rule 36 of the Commission's Rules of Procedure.   The application was registered on 1 August 1997.     THE LAW   1.    The applicant complains about the refusal of political asylum and his envisaged expulsion to Georgia.        The Commission has examined the applicant's submissions under Article 3 (Art. 3) of the Convention which states:        "No one shall be subjected to torture or to inhuman or degrading      treatment or punishment."        The Commission recalls that no right of an alien to enter or to reside in a particular country is as such guaranteed by the Convention. However, the expulsion by a Contracting State of a foreigner 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 returned (cf. Eur. Court HR, Vilvarajah and Others v. the United Kingdom judgment of 30 October 1991, Series A no. 215, p. 34, para. 103).        In the present case, the Commission, assuming exhaustion of domestic remedies within the meaning of Article 26 (Art. 26) of the Convention, notes that the German authorities, having regard to the submissions made by the applicant, but also by his wife, found that he had failed to show any reasons to fear political persecution upon his return to Georgia.   In particular, the Commission notes that the applicant, who was represented by counsel in the course of the asylum proceedings, failed to present his arguments in a complete and conclusive manner.   The applicant did not state any concrete reasons to fear persecution on account of his previous occupation as a photographer, a profession which he had no longer exercised since 1990. Furthermore, the applicant has not explained his failure to refer to his alleged conviction in Georgia at an earlier stage in the asylum proceedings.   Moreover, the finding of the Federal Office for Refugees that the said document is false is based on plausible grounds.         In these circumstances, the Commission finds that the applicant's submissions do not disclose any real risk that he would be subjected to ill-treatment contrary to Article 3 (Art. 3) upon his deportation to Georgia.      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.   2.    The applicant further submits that the refusal of interim measures pending the court proceedings concerning the reopening of asylum proceedings rendered the exercise of his right to seek asylum ineffective.        The Commission has considered this complaint under Article 13 (Art. 13) of the Convention which provides that everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority.        This provision is a substantive right and its application does not depend on the existence of a breach of another right or freedom as set forth in the Convention.   This provision requires a remedy in domestic law where an individual has an arguable claim to be the victim of a violation of his rights under the Convention.   An arguable claim falls to be determined on the particular facts of each case and the nature of the legal issue raised (cf.   Eur.   Court HR, Plattform "Ärzte für das Leben" v. Austria judgment of 21 June 1988, Series A no. 139, p. 11, paras. 25, 27).        The Commission recalls that the applicant's complaint under Article 3 (Art. 3) has been rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. The Commission, taking into account the specific circumstances of the case, finds that the complaint does not give rise to a prima facie issue under Article 3 (Art. 3) of the Convention and thus cannot be considered to be an arguable claim.   Consequently, Article 13 (Art. 13) does not apply in respect of the applicant's complaint under Article 3 (Art. 3) of the Convention.        It follows that this part of the application is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2).        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.     M.F. BUQUICCHIO                                 J. LIDDY      Secretary                                    President to the First Chamber                         of the First Chamber