CASE OF AHMED v. AUSTRIA
Lack of jurisdiction (new complaint);Violation of Art. 3;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
C. Russo
8. Mr Ahmed, a Somali citizen born in 1963, currently lives in Graz (Styria). 9. On 10 October 1990 he left Somalia. He reached Vienna Airport on 30 October via Syria and the Netherlands. 10. He requested refugee status on 4 November 1990 and was interviewed on 27 November 1990 by the Lower Austria Public Security Authority (Sicherheitsdirektion). On that occasion he stated that his uncle had been an active member of the United Somali Congress ("the USC") and that his father and his brother, though not members of the USC, had assisted his uncle and been executed on that account in May 1990. Since then he and his family had been suspected of belonging to the USC and taking part in acts of rebellion. His car had been confiscated and he had been assaulted, as was evidenced by a still-visible scar on his left forearm. He had left Somalia through fear of being arrested and executed. 11. On 19 April 1991 the Styria Public Security Authority rejected the application, but on appeal by the applicant the Minister of the Interior reversed this decision on 15 May 1992 and granted refugee status within the meaning of the Geneva Convention (see paragraph 24 below). He considered that Mr Ahmed could not be required to return to his homeland, regard being had to his activities in an opposition group and the general situation in the country concerned. His statements, which appeared credible, gave grounds to fear that, in the event of his return to Somalia, he would suffer persecution there within the meaning of the Geneva Convention. 12. On 15 July 1994 the Federal Refugee Office (Bundesasylamt) in Graz, acting pursuant to section 5 (1) (3) of the Right to Asylum Act (see paragraph 25 below), ordered the forfeiture of the applicant’s refugee status. This decision followed a judgment of 25 August 1993 in which the Graz Regional Court (Landesgericht) sentenced the applicant to two and a half years’ imprisonment for attempted robbery (versuchter Raub): together with an accomplice, Mr Ahmed had struck a passer-by in the face and attempted to steal his wallet. 13. On 12 September 1994 the Minister of the Interior dismissed an appeal by the applicant. He pointed out that under section 5 (1) (3) of the Right to Asylum Act a refugee lost refugee status if he committed a "particularly serious crime" within the meaning of Article 33 para. 2 of the Geneva Convention. Section 37 (4) of the Aliens Act (see paragraph 28 below) showed that the legislature considered that expression to mean any offence punishable by a term of imprisonment exceeding five years. Since attempted robbery was punishable by up to ten years’ imprisonment, the applicant had forfeited his refugee status and any other consideration relating to the correctness of his conviction or the situation in Somalia was superfluous. 14. Mr Ahmed contested this decision in the Administrative Court (Verwaltungsgerichtshof), which set it aside on 2 February 1995. The Administrative Court held that the applicant’s conviction for a particularly serious crime had only evidential relevance; it could not be deduced therefrom that, ipso facto, the applicant constituted a danger to Austrian society within the meaning of Article 33 para. 2 of the Geneva Convention. Such a conclusion, which suspended the protection (Schutzzweck) afforded by that Convention in spite of the continuing risk of persecution, could only be reached after the interests of the refugee and those of the host State had first been weighed against each other, the result being unfavourable to the former. The measure involved such a restriction of the refugee’s personal rights (persönliche Rechtssphäre) that it had to be really necessary for one of the reasons set out in the provision concerned. In order to determine whether that was so, it was necessary to assess the future conduct of the person concerned, but in the present case the Minister had neglected to do so. 15. On 10 April 1995 the Minister of the Interior again ordered the forfeiture of Mr Ahmed’s refugee status. Referring to the Administrative Court’s decision (see paragraph 14 above), he first noted that the applicant had been found guilty of attempted robbery, a particularly serious crime within the meaning of Article 33 para. 2 of the Geneva Convention. He went on to mention other measures taken against the applicant, namely a suspended sentence of three months’ imprisonment and a fine of 500 Austrian schillings (ATS) for criminal damage (Sachbeschädigung) in 1991, a fine of ATS 1,000 for threatening behaviour (ungestümes Benehmen) in a police station in 1992 and a complaint by the police to the Graz public prosecutor alleging criminal damage in the same year. Although, taken separately, these offences did not represent any danger to society, taken together they nevertheless revealed a clear tendency to aggression. It could not therefore be excluded that the applicant might commit further offences in future, which made him a danger to society. 16. On 9 November 1995 the Administrative Court upheld the above decision, holding in particular that in carrying out an assessment of the applicant’s dangerousness (Gefährlichkeitsprognose) the Minister had validly relied on events prior to his imprisonment. 17. In the meantime, on 14 November 1994, the Graz Federal Police Authority (Bundespolizeidirektion) had issued an indefinite exclusion order (unbefristetes Aufenthaltsverbot) against the applicant under section 18 (1) and (2) of the Aliens Act (see paragraph 26 below) and ordered that after serving his sentence he was to be detained with a view to his expulsion (Schubhaft). It noted that in view of the applicant’s convictions and the seriousness of one of the offences, namely attempted robbery, it could not be excluded that he would continue to offend. Therefore, in order to preserve public peace, order and security, and to prevent Mr Ahmed from committing crimes within the meaning of Article 8 para. 2 (art. 8-2) of the European Convention on Human Rights, it appeared to be essential to deport him, even though that measure incontestably constituted an interference (Eingriff) in his private life. 18. The applicant appealed against the above decision on 30 November 1994, asking the authorities to find, under section 54 of the Aliens Act, that his expulsion would contravene section 37 of the same Act (see paragraphs 29 and 28 below). On 10 December 1994 the Graz Public Security Authority dismissed the appeal, but reduced the period specified in the exclusion order against him to ten years. It considered that the Federal Police Authority had correctly weighed the conflicting interests and had had valid reasons to form the view that revoking the expulsion would have much more serious detrimental effects on the community than on Mr Ahmed. It further noted that the applicant could not yet be regarded as integrated into Austrian society, as he had lived there for only four years and had been in prison since March 1993. Nor did he have family or other links with the country. As for his occupational activities, these did not require any particular qualification and could therefore also be carried on abroad. Moreover, the applicant had been unemployed at the time of his arrest. 19. After being released on parole (bedingte Entlassung), the applicant was taken into custody at the Graz police headquarters on 14 December 1994 with a view to his expulsion. 20. On 23 January 1995 the Styria Independent Administrative Tribunal (Unabhängiger Verwaltungssenat) upheld an appeal by Mr Ahmed against the above measure (Schubhaftbeschwerde) on the ground that, as the European Commission of Human Rights had extended the provisional measure indicated under Rule 36 of its Rules of Procedure (see paragraph 5 above), deportation of the applicant before expiry of the two-month maximum period for detention of that type (section 48 of the Aliens Act) seemed to be out of the question. The applicant was therefore released. 21. On 26 April 1995 Mr Ahmed appeared before the Federal Refugee Office with a view to the possible application of section 37 of the Aliens Act (see paragraph 28 below). He asserted that the situation in Somalia had deteriorated since his departure in 1990. He was a member of the Hawiye clan, which at that time was being persecuted, especially by the generals in power. His clan, who lived 900 kilometres to the north of Mogadishu, had supported General Aïdid, but had later withdrawn that support and since then had been on the run from him as well. He could therefore not return to the country without risking his life. On 27 April 1995 the Federal Refugee Office declared the proposed expulsion of the applicant lawful (zulässig). It took the view that, taken together, the offences he had committed revealed a tendency towards aggressive behaviour and even increasing aggressiveness (steigendes Aggressionspotential), which did not stop short of violence against the person. It could therefore not be excluded that Mr Ahmed might commit other offences in future, so that he constituted a danger to the community within the meaning of section 37 (4) of the Aliens Act. That being the case, even the fact that he risked persecution in the event of his return to Somalia could not make his deportation to that country unlawful. 22. On 4 May 1995 the Graz Federal Police Authority dismissed the applicant’s appeal of 30 November 1994 (see paragraph 18 above) on the ground that there were no solid reasons to believe that on his return to Somalia he might suffer treatment prohibited by section 37 (1) and (2) of the Aliens Act. According to the established case-law of the Administrative Court, section 37 (1) contemplated only dangers and threats emanating from a State. Since the overthrow of President Siyad Barre a civil war had been raging in Somalia and all State authority (staatliche Gewalt) had disappeared. Moreover, there was nothing to suggest that the applicant might be persecuted in Somalia for one of the reasons set out in section 37 (2). Lastly, there would not be any breach of Article 2 para. 1 (art. 2-1) of the European Convention on Human Rights either, since under section 37 the mere fact that on returning to his home country an alien might be risking his life was not a sufficient bar to expulsion. 23. On appeal by the applicant, the Styria Public Security Authority set aside the above decision on 22 May 1995. Thereupon the Graz Federal Police Authority found on 31 October 1995 that in Somalia Mr Ahmed would be at risk of persecution for one of the reasons set out in section 37 of the Aliens Act. On 22 November 1995 it accordingly stayed his expulsion for a renewable period of one year. 24. Under Article 1 of the Geneva Convention of 28 July 1951, as amended by the Protocol of 31 January 1967, a "refugee" is defined as any person who "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country". Article 33 of the above Convention provides: "1. No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. 2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country." 25. Under section 5 (1) (3) of the 1991 Right to Asylum Act (Asylgesetz), a refugee loses refugee status if the competent authority finds that the conditions set out in Article 33 para. 2 of the Geneva Convention relating to the Status of Refugees (see paragraph 24 above) are satisfied. 26. Section 18 of the 1992 Aliens Act (Fremdengesetz) governs exclusion orders (Aufenthaltsverbot). The first paragraph provides that an alien’s exclusion must be ordered if certain facts give reason to believe that his presence in the country constitutes a danger to public peace, order and security or is incompatible with other public interests referred to in Article 8 para. 2 (art. 8-2) of the European Convention on Human Rights. Among the facts which are relevant for the purposes of section 18, subsection 2 mentions a final decision by an Austrian court imposing on the refugee concerned a custodial sentence of more than three months. 27. The first sentence of section 36 (2) provides for expulsion to be stayed for a renewable period of up to one year at the request of the person concerned, or by the authorities of their own motion, where expulsion is prohibited under section 37 or appears to be impossible in practice. 28. Section 37 forbids the expulsion of an alien to a State where there are solid reasons (stichhaltige Gründe) to believe: - that he will be exposed to the risk of inhuman treatment or punishment or the death penalty (subsection 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 (subsection 2, which refers to Article 33 para. 1 of the Geneva Convention). The expulsion of an alien to a State where he would be at risk within the meaning of subsection 2 is permitted only if, for weighty reasons, the person concerned constitutes a danger to the security of the Republic of Austria or, having been convicted by a final judgment of a crime punishable by more than five years’ imprisonment, a danger to society (subsection 4, which refers to Article 33 para. 2 of the Geneva Convention). No alien may be deported while a provisional measure requested by the European Commission or Court of Human Rights is in force (subsection 6). 29. Under section 54 the competent authority has to determine (Bescheid), at the alien’s request (Antrag), whether there are solid reasons to believe that he would be at risk, within the meaning of section 37 (1) or (2), in a particular State named by him (subsection 1). Pending the final decision on the alien’s request he may not be deported to the State in question. If he has been deported to another State the proceedings are discontinued for lack of object (subsection 4).