CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 31 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. 36717/97                       by Bahawal BAKHISH                       against Germany          The European Commission of Human Rights sitting in private on 31 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                  J.-C. SOYER                  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 1 April 1997 by Bahawal BAKHISH against Germany and registered on 25 June 1997 under file No. 36717/97;        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 is a Pakistani citizen, born in 1947 and residing in Hamburg.        In the proceedings before the Commission he is represented by Mr Alexander Munz, a lawyer practising in Hamburg.        The facts of the case, as submitted by the applicant, may be summarised as follows.        On 5 August 1990 the applicant reached the Federal Republic of Germany via Dubai and London and applied for political asylum.        When interviewed on 22 March 1993 before the Federal Office for Refugees (Bundesamt für die Anerkennung ausländischer Flüchtlinge), the applicant stated that he belonged to the Ahmadiyya Muslim community in Pakistan. Although he had encountered no particular problems with the Pakistani authorities, he had left his country because, on account of his religion, his clients had stopped buying the goods manufactured in his factory.        By a decision of 22 November 1993 the Federal Office for Refugees refused the applicant's request for asylum and informed him that he would be expelled unless he left Germany within a month following this decision. The Federal Office found that members of the Ahmadiyya community were not subjected to group persecution in Pakistan and that the applicant had not been persecuted when he had left his country. The Federal Office concluded that the applicant had not demonstrated that there was a sufficiently high degree of likelihood of his persecution if he were to return to his country.        On 7 December 1993 the applicant lodged an appeal against this decision.        At the hearing of 17 December 1996 before the Hamburg Administrative Court (Verwaltungsgericht) the applicant stated that it would be unsafe for him to return to Pakistan. As a member of the Ahmadiyya Muslim community he had been threatened with death by orthodox Muslims. According to him, the Government of Pakistan tolerated, if not approved, the persecution of Ahmadi Muslims.        By a judgment of the same date the Hamburg Administrative Court dismissed the appeal after having carefully considered all the available information and evidence concerning the present situation of Ahmadis in Pakistan in general and the applicant's personal situation in particular.        The court pointed out that the Ahmadis regarded themselves as Muslims and observed many Islamic practices. Their movement was founded in 1889 by Mirza Ghulam Ahmed who was considered by the members of the community as the promised Messiah and whose advent had been predicted by the Holy Prophet of Islam. Since the Ahmadiyya community, consisting in Pakistan of about four million members, denied the finality of   the Prophet Mohammed, it aroused opposition on the part of orthodox Muslims.        In 1974 a constitutional amendment declared the Ahmadis a non-Muslim minority. In 1984, Ordinance XX added Sections 298 B and 298 C to the Pakistan Penal Code, expressly referring to the Ahmadis and forbidding them to profess to be Muslims and to use Muslim practices in their worship or in the propagation of their faith, any offence being punishable with up to three years' imprisonment and a fine. In 1986, the Criminal Law Amendment Act inserted the blasphemy law in Section 295 C of the Penal Code. Under this amendment, any person guilty of direct or indirect blasphemy against the name of the prophet Mohammed was liable to life imprisonment, or even to the death penalty, and to a fine (blasphemy law).        The court noted that Ahmadis were reported to be prosecuted under these provisions namely for saying daily prayers, writing the kalima (Article of Faith, God is One and Mohammed is His Messenger) on their house, shop, and place of worship, calling to prayer (Azan), displaying verses of the Koran on rings, badges, receipts and calendars, preaching Muslim epithets and verses of the Koran and using the Islamic terms of greeting "assalam-o-aleikum" with orthodox Muslims.        The Administrative Court admitted that as a member of the Ahmadiyya community the applicant was individually affected by the above provisions. However, the court considered that the applicant did not incur the risk to be in conflict with these provisions and to be arrested or sentenced to imprisonment on account of his religion. According to the court, the provisions of the Pakistan Criminal Code did not make the religious belief of Ahmadi Muslims as such a punishable offence. Cases of prosecution against the Ahmadis arose mainly from the   public exercise of religious practices. The court considered that the religious restrictions imposed on the applicant in Pakistan were compatible with the human dignity and did not amount to persecution relevant to the right of asylum for the purposes of Article 16 of the Basic Law (Grundgesetz).        The Administrative Court further observed that the applicant had not left his country because he was subjected to persecution by other private persons engaging the responsibility of the Government of Pakistan. Single anti-Ahmadi events occurred solely in rural areas of the Province of Punjab and concerned mainly prominent members of the Ahmadiyya movement.        The Administrative Court finally considered that the applicant's declarations made at the hearing of 17 December 1996 were in contrast with his first statements before the Federal Office and did not appear credible. Accordingly, the court did not believe that the applicant had been threatened by orthodox Muslims before leaving his country.        The Administrative Court concluded that the Ahmadis were not a persecuted group and that the applicant had not established a real and substantial fear of persecution in Pakistan.        On 30 January 1997 the applicant lodged a constitutional appeal against this judgment.        On 3 March 1997 a panel of three judges of the Federal Constitutional Court (Bundesverfassungsgericht) declined to accept the constitutional appeal for a decision.   COMPLAINTS   1.    The applicant complains that he and the members of his family would be subjected to treatment in breach of Article 3 of the Convention on their return to Pakistan. He contends that, while in Pakistan, he risked any day to be arrested or even sentenced to death by reason of his religious belief or to be a victim of violence and harassment, namely by the Khatame Nabuwwat organisation dedicated specifically to the persecution of Ahmadi Muslims in Pakistan. According to the applicant, the Government of Pakistan encourages the activities of this organisation by allowing them to murder Ahmadis with impunity and accepting charges brought by this organisation against Ahmadi Muslims under the provisions of the Pakistan Penal Code currently in force. He compares this situation with that of the Jewish people during the Nazi regime.   2.    The applicant also complains that under the relevant provisions of the Pakistan Penal Code   he and the members of his family, if returned to Pakistan, would be exposed to arbitrary arrest and detention, contrary to Article 5 of the Convention.        The applicant submits furthermore that the kinds of acts that would fall within an offence under the provisions of the Pakistan Penal Code were not indicated with sufficient clarity   and infringe Article 7 of the Convention. The applicant refers in particular to Section 295 C of the Pakistan Penal Code, according to which any person who defiles indirectly the name of the "Holy Prophet (peace be upon him)", shall be punished with death or life imprisonment. The applicant argues that this offence is so far-reaching and imprecise that it might be applied almost without limit.        The applicant next complains that he and the members of his family, if returned to Pakistan, would be exposed to arbitrary action by the Pakistani authorities. In this connection he alleges a breach of the right to respect for their private life and their right to freedom of religion within the meaning of Articles 8 and 9 of the Convention.        The applicant finally invokes Article 14 of the Convention which guarantees the enjoyment of the rights and freedoms protected by the Convention without discrimination on account of the national origin.   THE LAW   1.    The   applicant complains that, if returned to Pakistan, he will be prosecuted and possibly executed for his religious beliefs. He alleges that he had been threatened with death before leaving his country on account of his religious beliefs. He contends that his deportation to Pakistan would constitute a violation of 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 Contracting States have the right, as a matter of well-established international law and subject to their obligations under international treaties   including the Convention, to control the entry, residence and expulsion of aliens.   Moreover, it must be noted that the right to political asylum is not contained in either the Convention or its Protocols (see Eur. Court HR, Vilvarajah and others v. the United-Kingdom judgment of 30 October 1991, Series A no. 215, p. 34, para. 102). 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 the State under the Convention, where substantial grounds have been shown for believing that the person in question, if expelled, would face a real risk of being subjected to treatment contrary to Article 3 (Art. 3) in the receiving country. In these circumstances, Article 3 (Art. 3) implies the obligation not to expel the person in question to that country (see Eur. Court HR, Soering v. the United Kingdom judgment of 7 July 1989, Series A no. 161, p. 35, paras. 90-91; Cruz Varas and others v. Sweden judgment of 20 March 1991, Series A no. 201, p. 28, paras. 69-70; the above-mentioned Vilvarajah and others judgment, p. 34, para. 103 and Chahal v. the United Kingdom judgment of 15 November 1996, Reports 1996-V, No. 22, paras. 73-74).        The Commission further recalls that a treatment has to reach a certain level of severity before it can be considered to be contrary to Article 3 (Art. 3) of the Convention (see the above-mentioned Cruz Varas and others v. Sweden judgment, p. 31, para. 83) and the mere possibility of ill-treatment in a country is in itself insufficient to give rise to a breach of Article 3 (Art. 3) of the Convention (see Eur. Court HR, the above-mentioned Vilvarajah and others judgment of 30 October 1991, Series A no 215, p. 37, para. 111).        The Commission has examined the circumstances of the present case as they have been submitted by the applicant. The Commission notes that the Hamburg Administrative Court considered the applicant's allegations concerning a risk of treatment contrary to Article 3 (Art. 3) of the Convention as unsubstantiated and in part as being contradictory and not credible. The Commission further notes that the applicant criticises the findings of the Hamburg Administrative Court in respect of the general situation of the Ahmadiyya community in Pakistan without, however, providing any substantiation of his fears of facing a real risk of ill-treatment upon his return to his country.        The Commission thus concludes, on the evidence before it, that the situation of which the applicant complains is not such as to raise an issue under Article 3 (Art. 3) of the Convention.        This part of the application is, therefore, manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.    The applicant also complains under Articles 5, 7, 8 and 9 (Art. 5, 7, 8, 9) of the Convention, that he and the members of his family, if expelled to Pakistan, risk to be prosecuted under Sections 298 B, 298 C and 295 C of the Pakistan Penal Code and to be deprived of the right to liberty and security of person, of their right to respect to their private and family life and of their right to freedom of religion. Finally, the applicant alleges a discriminatory difference in treatment in relation to the rights guaranteed by the Convention on the grounds of his nationality, in breach of Article 14 (Art. 14) of the Convention.        However, insofar as the complaints can be regarded as raising the responsibility of the German Government, the Commission finds that they are unsubstantiated and do not disclose any appearance of a direct involvement of the German Government in a violation of the rights and freedoms set out in the Convention and in particular in the above Articles.        It follows that this part of the application is also 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