MAHDID AND HADDAR v. AUSTRIA
Inadmissible
Mark Villiger
The four applicants Madani Mahdid, Fatiha Haddar, Riad Mahdid and Yacine Mahdid are all Algerian nationals. They were born in 1959, 1965, 1992 and 1993, respectively, and now live in Canada. The first and second applicants are a couple, and the third and fourth applicants are their children. They were represented before the Court by Mr W. Rainer, a lawyer practising in Vienna. The respondent Government were represented by their agent Ambassador H. Winkler, former Head of the International Law Department at the Federal Ministry of Foreign Affairs. The facts of the case may be summarised as follows. On 3 November 1996 the applicants arrived at Vienna International Airport on a flight from Tunis (Tunisia). They were in possession of passports, flight tickets and tourist visas for Slovenia. On 4 November 1996 they presented themselves to the airport and border police. They requested asylum, claiming that they had fled Algeria because of political persecution and that in Tunisia they risked deportation to Algeria. They further submitted that they were no longer in possession of passports. Noting that the applicants had no passports and had not arrived directly from the State where they feared persecution, the airport and border police refused them leave to enter Austrian territory. The applicants were offered lodging in a special transit zone (“Sondertransit”) in a locked container near the airport which was equipped with beds and where food was provided. They refused and continued to stay in the main transit zone of the airport. On 7 November 1996 the applicants made statements to officers of the Federal Refugee Office (Bundesasylamt). They said that they had left Algeria in 1994 as the first applicant had been persecuted by the Islamic Salvation Front (FIS). Since 1994 they had been living in Tunisia with tourist visas which they renewed every three months by travelling to Libya and subsequently re-entering Tunisia. The first applicant had obtained refugee status from the UNHCR in Tunisia. They had not filed an asylum request in Tunisia as they feared that once the Tunisian authorities became aware of their presence they would be deported. They added that they had destroyed their passports upon their arrival at Vienna Airport in order to avoid deportation. Later that day the Federal Refugee Office dismissed the applicants’ request for asylum. It noted that the applicants had come from Tunisia where they were safe from persecution. Subsequently, at a hearing before the Independent Administrative Panel on 17 April 1997, the applicants explained that it was in fact only after that decision that they had destroyed their passports. Meanwhile, on 8 November 1996 the Schwechat Federal Police Directorate (Bundespolizeidirektion) ordered the applicants’ deportation to Tunisia, stipulating that if the deportation could not be effected, the applicants were to remain in the transit zone of the airport. Flights from Vienna to Tunis left twice a week, on Thursdays and Sundays. On 10 and 17 November 1996 the applicants’ deportation to Tunisia had to be postponed as they could not be found in the transit zone. Another attempt was made to deport them on 14 November 1996, but proved to no avail as the applicants did not comply with the order to board the flight and the authorities refused to employ force. Meanwhile the Regional Office of the UNCHR in Vienna was informed about the applicants’ situation. It gave a favourable opinion on the applicants’ deportation. In the morning of 21 November 1996 the applicants were placed under police surveillance in order to ensure their deportation on a flight to Tunisia that evening. Their deportation was however postponed indefinitely after information was received from the Tunisian authorities that they would not accept the applicants without passports. The police surveillance was stopped at 2 p.m. that day. Meanwhile, the applicants’ case attracted the attention of the media, and several articles about their situation appeared in Austrian newspapers. On 2 December 1996 the Regional Office of the UNCHR in Vienna stated that in Tunisia the applicants would risk deportation to Algeria. It stated in that connection that on 20 November 1996 it had been informed by the first applicant for the first time that he was a member of the Hamas Party. On 11 December 1996 the first applicant was again interviewed by an officer of the Schwechat Federal Police Office. On 13 December 1996 the Austrian authorities allowed the applicants to enter Austria on humanitarian grounds. On 21 May 1997 the Federal Ministry for the Interior (Bundesminister für Inneres) dismissed the applicants’ appeal against the Federal Refugee Office’s decision of 7 November 1996. It noted that there was nothing to show that Tunisia would disregard its obligations under the Geneva Convention on the Status of Refugees and deport them to Algeria. On 6 July 1999 the Administrative Court rejected the applicants’ complaints. It noted that the Ministry’s decision was void as it was based on the 1991 Asylum Act which, in the meantime, had been replaced by the 1997 Asylum Act. It therefore directed that the proceedings should resume at the stage of the Federal Refugee Office’s decision. However, the applicants did not pursue the proceedings any further. In the meantime, on 24 January 1997, the applicants lodged complaints with the Lower Austria Independent Administrative Panel (Unabhängiger Verwaltungssenat). They complained that their stay in the transit zone and the authorities’ attempts to deport them to Tunisia had been unlawful as they should have been allowed to enter Austria as asylum seekers who had come from a country where they feared persecution. They further complained that their stay in the transit zone was contrary to Articles 5 §§ 1 and 4 of the Convention. They submitted that they had been left to their own devices without appropriate sleeping or sanitary facilities. Furthermore, there was no statutory right to bring proceedings by which the lawfulness of their detention could be reviewed speedily by a court and their release ordered if their detention was unlawful. On 15 July 1997, after a hearing on 17 April 1997, the Independent Administrative Panel (IAP) dismissed the complaint concerning the Austrian authorities’ refusal to let the applicants enter Austria and rejected the complaint concerning their stay in the transit zone. It found that the refusal to let the applicants enter Austria and the subsequent attempts to enforce their departure had been lawful, as they did not possess valid passports and had no right to enter under the relevant provisions of the Asylum Act, since they had come from Tunisia where they were safe from persecution. The Panel further found that the stay in the transit zone had not been ordered by, and was therefore not attributable to, the Austrian authorities. The applicants, who had been free to leave Austria, had remained of their own free will. It further noted that the situation in the case before it differed from the Amuur case (Amuur v. France, judgment of 25 June 1996, Reports of Judgments and Decisions 1996III) in that the applicants were free to move about the transit zone and had not been placed under surveillance. They had also been in contact with the media and a humanitarian organisation, Caritas, in Vienna, which provided, inter alia, legal assistance. It found that their stay in the transit zone did not amount to a deprivation of liberty. On 30 September 1997 the Constitutional Court (Verfassungs- gerichtshof) declined to deal with the applicants’ complaints and subsequently referred the case to the Administrative Court. On 23 February 2001 the Administrative Court noted that the applicants’ complaints did not concern the authorities’ refusal to grant them leave to enter Austria or their attempts to deport them to Tunisia, but were restricted to the IAP’s rejection of their complaint about the alleged unlawful stay in the transit zone. It confirmed the IAP’s findings in this regard. This decision was served on the applicants’ counsel on 14 March 2001. Meanwhile, in the summer of 1997, the applicants had left Austria for Canada. Section 32(1) of the Aliens Act (Fremdengesetz) 1992 stipulates that aliens who do not satisfy relevant passport or visa obligations shall be prevented (Zurückweisung) from entering the Austrian territory. An alien shall not be prevented from entering Austria when he is entitled to do so under other legislation. Section 32(3) lays down that the decision whether or not to admit an alien into Austrian territory will be taken by the border police after questioning the alien and on the basis of plausible evidence submitted by the alien or other known facts. Section 33 provides that the border police may order an alien who has been refused entry into Austria but is present on Austrian territory to leave immediately. If departure is not immediately possible the officer may order the alien to stay in a designated place in the border control area until he or she leaves the territory. Section 37 forbids the expulsion of an alien to a State where there is good reason to believe that he or she will be exposed to the risk of inhuman treatment or punishment or the death penalty or will be persecuted, within the meaning of the Geneva Convention relating to the Status of Refugees. Section 1 of the Asylum Act (Asylgesetz) 1991 defines a refugee as a person who has left his or her home country because of a well-founded fear of persecution on account of his or her race, religion, nationality or adherence to a particular social group or political opinion. Section 2(3) states that asylum is not to be granted to a refugee who has already found a safe haven from persecution in another country. Section 6(2) provides that an asylum seeker who has come directly from the State where he allegedly suffered persecution shall be allowed to enter Austria without any formalities. By virtue of section 7(1), an asylum seeker who has entered Austria in accordance with section 6(2) (that is to say, who has come directly from the State where he allegedly suffered persecution) and who files his request for asylum within one week, has a temporary right of residence. Both the Aliens Act 1992 and the Asylum Act 1991 have now been amended. The Protection of Personal Freedom Act (Gesetz zum Schutz der persönlichen Freiheit) provides protection against the intentional deprivation of liberty. In particular, it provides for compensation for unlawful detention and a procedure by which the lawfulness of detention is decided by a body, the Independent Administrative Panel, within one week after the complaint is lodged. If the detention is unlawful, an order must be made for the release of the person detained. However, according to the Constitutional Court’s settled case-law (see its judgment of 11 March 1999; VfSlg. [Collection of Judgments and Decisions of the Constitutional Court] 15465/1999) a mere order to stay in the main transit zone of an airport after leave to enter Austria has been refused does not amount to an arbitrary deprivation of liberty. The above mentioned Act is therefore inapplicable. On the other hand, an order requiring foreigners to stay in the special transit zone at Vienna International Airport may, in certain circumstances, constitute a deprivation of liberty. By virtue of Section 67a (1) of the General Administrative Procedure Act (Allgemeines Verwaltungsverfahrensgesetz) Independent Administrative Panels have jurisdiction, inter alia, to examine complaints from persons who allege a violation of their rights as a result of the exercise of direct administrative authority and coercion (Ausübung unmittelbarer verwaltungsbehördlicher Befehls- und Zwangsgewalt). A refusal by the border police to admit foreigners arriving at Vienna International Airport into Austria is deemed to be an exercise of direct administrative authority and coercion. Section 73 of the General Administrative Procedure Act deals with the administrative authorities’ duty to give a decision. It provides that, in the absence of any contrary provision in the administrative regulations, the authorities must decide applications by parties without unnecessary delay and at the latest six months after the application or appeal has been lodged.