CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 3 décembre 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. 37992/97                       by Djibril OUBDA                       against Germany          The European Commission of Human Rights (First Chamber) sitting in private on 3 December 1997, the following members being present:              Mrs   J. LIDDY, President            MM    M.P. PELLONPÄÄ                 E. BUSUTTIL                 A. WEITZEL                 C.L. ROZAKIS                 L. LOUCAIDES                 B. MARXER                 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 8 July 1997 by Djibril OUBDA against Germany and registered on 2 October 1997 under file No. 37992/97;        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 1965, is a national of Burkina Faso.   When lodging his application he was living in Essen.   In the proceedings before the Commission, he is represented by Mr. D.-W. Fortmann, a lawyer practising in Essen.        The facts of the case, as submitted by the applicant, may be summarised as follows.        On 14 October 1994 the applicant entered the territory of the Federal Republic of Germany.   He applied for asylum on 17 October 1994, alleging persecution by the police authorities on account of his activities in a Muslim religious community.        On 16 February 1996 the Federal Office for Refugees (Bundesamt für die Anerkennung ausländischer Flüchtlinge) dismissed the request for asylum and ordered the applicant to leave the German territory within one month and ordered his deportation in case he should not leave voluntarily.   The Office, having regard to the applicant's allegations of persecution on account of his religious activities as Imam of a Muslim community, noted in particular his submissions that he had left Burkina Faso legally with a regular flight and that he had allegedly lost his passport in the course of his journey.        On 18 September 1996 the Gelsenkirchen Administrative Court (Verwaltungsgericht) dismissed the applicant's action against the decision of 16 February 1996.   In these and the following proceedings, the applicant was represented by counsel.   The Court found in particular that the applicant had failed to substantiate any reasons justifying to grant him asylum.   In this respect, the Court noted the applicant's allegations of persecution for religious reasons.   The Court, having regard to information obtained by, inter alia, the Federal Ministry for Foreign Affairs, considered that in the past one or possibly even several mosques had been closed.   However, there were no indications of persecutions against individual Muslims.   The applicant had not plausibly shown that, contrary to this general situation, he had suffered any persecution by the authorities on account of his religion and his religious activities.   His statements were partly contradictory and did not appear credible.        On 26 February 1997 the Federal Office for Refugees dismissed the applicant's request, dated 4 February 1997, to conduct further asylum proceedings.   The Office noted that the applicant, represented by Mr. Fortmann, still referred to his alleged persecution on account of his Muslim religion and had filed a warning letter sent by his wife. 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 new submissions were superficial, they were no more than an account of the general situation in his home country.        On 23 April 1997 the Administrative Court refused the applicant's request for an interim measure against his expulsion.   His constitutional complaint (Verfassungsbeschwerde) with the Federal Constitutional Court (Bundesverfassungsgericht) concerning this refusal remained unsuccessful.        On 28 May 1997 the Administrative Court dismissed the applicant's action against the decision of 26 February 1997.   As regards the applicant's submissions that, upon his return, he would face difficulties on account of his desertion in 1987, the Court considered that the applicant had failed to raise this matter in the course of the first set of asylum proceedings.   Moreover, he had not submitted any other new relevant circumstances.        On 15 July 1997 the North Rhine Westphalia Administrative Court of Appeal (Oberverwaltungsgericht) refused the applicant's request for leave to appeal.        The applicant again lodged a constitutional complaint with the Federal Constitutional Court.   He meanwhile obtained a temporarly permission to stay in Germany (Duldung) until 4 October 1997.     COMPLAINTS        The applicant complains about his envisaged expulsion to Burkina Faso. He complains in particular that his submissions in the second set of asylum proceedings were not duly considered and that the envisaged expulsion before the termination of the proceedings before the Federal Constitutional court renders the right to seek asylum ineffective.   He invokes 5, 6, 13 and 14 of the Convention.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 8 July 1997.   On 17 July 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 2 October 1997.     THE LAW   1.    The applicant complains about the refusal of political asylum and his envisaged expulsion to Burkina Faso.        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 faced a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the country to which he was 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, found that he had failed to show any reasons to fear persecution upon his return to Burkina Faso.   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 religious activities.         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 Burkina Faso.        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 to consider particular submissions in the context of the second set of asylum proceedings and his envisaged expulsion without awaiting the decision of the Federal Constitutional Court upon his constitutional complaint were in breach of Articles 6 and 13 (Art. 6, 13) of the Convention.        The Commission observes that Article 6 (Art. 6) of the Convention does not apply to asylum or expulsion proceedings (No. 8118/77, Dec. 19.3.81, D.R. 25, p. 105; No. 9990/92, Dec. 15.5.84, D.R. 39, p. 119).        As regards Article 13 (Art. 13) of the Convention, the Commission recalls that 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).   In the present case, the applicant's complaint under Article 3 (Art. 3) must be 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 applicant's submissions do 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