In the case of Ahmed v. Austria,
The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of Human Rights and
Fundamental Freedoms ("the Convention") and the relevant provisions
of Rules of Court B,
as a Chamber composed of the following judges:
MM. R. Bernhardt,
président,
T. Vilhjálmsson,
F. Matscher,
C. Russo,
A. Spielmann,
L. Wildhaber,
D. Gotchev,
K. Jungwiert,
P. Kuris,
and also of Mr H. Petzold, Registrar,
and Mr P.J. Mahoney,
Deputy Registrar,
Having deliberated in private on 24 April, 28 June and 27
November 1996,
Delivers the following judgment, which was adopted on the last-mentioned
date:
PROCEDURE
The case was referred to the Court by the European Commission
of Human Rights ("the Commission") on 11 September 1995, within the
three-month period laid down by Article 32 para. 1 and Article 47 of the
Convention (art. 32-1, art. 47). It originated in an application (no. 25964/94)
against the Republic of Austria lodged with the Commission under Article 25
(art. 25) by a Somali national, Mr Sharif Hussein Ahmed, on 13 December
1994.
The Commission’s request referred to Articles 44 and 48 (art.
44, art. 48) and to the declaration whereby Austria recognised the compulsory
jurisdiction of the Court (Article 46) (art. 46). The object of the request was
to obtain a decision as to whether, in the event of the applicant being
deported to Somalia, the facts of the case would disclose a breach by the
respondent State of its obligations under Article 3 of the Convention (art. 3).
In response to the enquiry made in accordance with Rule 35
para. 3 (d) of Rules of Court B, the applicant stated that he wished to take
part in the proceedings and designated the lawyer who would represent him (Rule
31). On 23 May 1996 the President of the Chamber gave the lawyer leave to use
the German language in both the written and the oral proceedings (Rule 28 para.
3).
The Chamber to be constituted included ex officio Mr F.
Matscher, the elected judge of Austrian nationality (Article 43 of the
Convention) (art. 43), and Mr R. Bernhardt, the Vice-President of the
Court (Rule 21 para. 4 (b)). On 29 September 1995, in the presence of the
Registrar, the President of the Court, Mr R. Ryssdal, drew by lot the names of
the other seven members, namely Mr Thór Vilhjálmsson, Mr A. Spielmann, Mr F. Bigi,
Mr L. Wildhaber, Mr D. Gotchev, Mr K. Jungwiert and Mr P. Kuris
(Article 43 in fine of the Convention and Rule 21 para. 5) (art. 43). Subsequently
Mr C. Russo, substitute judge, replaced Mr Bigi, who had died (Rule 22 paras. 1
and 2 and Rule 24 para. 1).
As President of the Chamber (Rule 21 para. 6), Mr
Bernhardt, acting through the Registrar, consulted the Agent of the Austrian
Government ("the Government"), the applicant’s lawyer and the
Delegate of the Commission on the organisation of the proceedings (Rules 39
para. 1 and 40). Pursuant to the order made in consequence, the Registrar
received the Government’s and the applicant’s memorials on 23 and 26 April 1996
respectively. On 10 June 1996 the Commission supplied the Registrar with
various documents that he had requested on the President’s instructions.
On 15 December 1994 the President of the Commission had
indicated to the Austrian Government, under Rule 36 of the Commission’s Rules
of Procedure, that it was desirable, in the interests of the parties and the
proper conduct of the proceedings, not to deport the applicant before the end
of the Commission’s next session. The Commission extended the application of
Rule 36 several times. On 2 October 1996 the Deputy Registrar of the Court
informed the Government that the above measure remained recommended under Rule
38 para. 2 of Rules of Court B.
On 28 February 1996 the Government had asked the Court to
strike the case out of its list, on the ground that on 22 November 1995, when
the applicant obtained a stay of his expulsion for a renewable period of one
year (see paragraph 23 below), he had lost the status of victim within the
meaning of Article 25 para. 1 of the Convention (art. 25-1). In letters
received at the registry on 22 and 25 March 1996 respectively the applicant and
the Delegate of the Commission, who had been consulted in accordance with Rule
51 para. 2, asked the Court not to allow this application. The Delegate of the
Commission expressed himself as follows:
"... It emerges [from the] observations [of the Austrian
Government] that the applicant has not indicated that he wishes to withdraw and
that no information about a friendly settlement of the case has been
communicated to the Court. Accordingly, the only possible ground for striking
out is that provided for in Rule 51 para. 2, second sub-paragraph, of Rules of
Court B, namely that ‘for any other reason, further examination of the case is
not justified’.
In the light of the Vijayanathan and Pusparajah v. France judgment of 27 August 1992 (Series A no. 241-B), it appears that the lack of victim
status does not lead the Court to strike a case out but to rule at the end of
the normal procedure that it cannot look into the merits. I fail to see in what
way the alleged loss of victim status could justify any other form of
procedure, given that in the two cases mentioned the respondent Government
submitted a preliminary objection. I cannot therefore agree with the course
advocated by the Austrian Government ..."
On 24 April 1996 the Court rejected the application for the case
to be struck out, considering that in the absence of any friendly settlement or
arrangement between the parties the conditions laid down in Rule 51 para. 2 had
not been satisfied.
In accordance with the President’s decision, the hearing
took place in public in the Human Rights Building, Strasbourg, on 25 June 1996.
The Court had held a preparatory meeting beforehand.
There appeared before the Court:
- for the Government
Mr F. Cede,
Ambassador, Legal Adviser,
Federal Ministry of Foreign
Affairs, Agent,
Mr J. Rohrböck,
Federal Ministry of the Interior,
Mrs I. Sieß,
Constitutional Department,
Federal Chancellery,
Mrs E. Bertagnoli,
International Law Department,
Federal Ministry of Foreign
Affairs, Advisers;
- for the Commission
Mr J.-C. Geus, Delegate;
- for the applicant
Mr W. Vacarescu,
Rechtsanwalt (lawyer)
of the Graz Bar, Counsel.
The Court heard addresses by Mr Geus, Mr Vacarescu and Mr Cede.
AS TO THE FACTS
I. Circumstances of
the case
A. Recognition and forfeiture of refugee status
Mr Ahmed, a Somali citizen born in 1963, currently lives
in Graz (Styria).
On 10 October 1990 he left Somalia. He reached Vienna Airport on 30 October via Syria and the Netherlands.
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.
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.
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.
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.
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.
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.
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.
B. The expulsion proceedings
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.
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.
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.
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.
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.
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.
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.
II. Relevant international
and domestic law
A. The Geneva Convention of 28 July 1951 relating to the Status of
Refugees
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."
B. Domestic law
1. The Right to Asylum Act
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.
2. The Aliens Act
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.
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.
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).
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).
PROCEEDINGS BEFORE THE
COMMISSION
In his application to the Commission (no. 25964/94) of 13 December
1994 Mr Ahmed alleged that his expulsion to Somalia would expose him to a
serious risk of being subjected to treatment contrary to Article 3 of the
Convention (art. 3) there.
The Commission declared the application admissible on 2
March 1995. In its report of 5 July 1995 (Article 31) (art. 31), it expressed
the unanimous opinion that there would be a violation of Article 3 (art. 3) if
the applicant were to be deported to Somalia. The full text of the Commission’s
opinion is reproduced as an annex to this judgment.
FINAL SUBMISSIONS TO THE COURT
BY THE GOVERNMENT
In their memorial the Government asked the Court to hold
that there had been no breach of Article 3 (art. 3).
AS TO THE LAW
I. SCOPE OF THE CASE
In his memorial Mr Ahmed requested the Court to consider
the facts of the case not only under Article 3 of the Convention (art. 3) but
also under Articles 5 and 13 (art. 5, art. 13).
The Court notes that no complaint under Articles 5 and 13
(art. 5, art. 13) was submitted in the application to the Commission. As the
compass of the case before it is delimited by the Commission’s decision on
admissibility (see, among many other authorities, the Masson and Van Zon v. the
Netherlands judgment of 28 September 1995, Series A no. 327-A, p. 16,
para. 40), it cannot entertain such complaints.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION (art.
3)
The applicant alleged that, if he were to be deported to Somalia, he would certainly be subjected there to treatment prohibited by Article 3 of the
Convention (art. 3), which provides:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
By granting him refugee status on 15 May 1992 the Austrian
authorities had, he submitted, recognised the existence of that risk. According
to the latest news, the situation in Somalia had not fundamentally changed
since then. The country was still the theatre of a fratricidal war between
rival clans. He himself was still suspected of belonging to one of these, the
USC, and on that account was still at risk of persecution in Somalia. Only his criminal conviction had made him lose his refugee status; however, the alleged
seriousness of the offence a person had committed was not sufficient to justify
placing his life in danger.
The Commission accepted the above argument in substance. It
noted in particular that in support of their decision to strip the applicant of
his refugee status the national authorities had not mentioned any new factor
tending to show that the risk he would run in Somalia had disappeared.
The Government too considered that Mr Ahmed was at risk
of being subjected in Somalia to treatment incompatible with Article 3 (art.
3). However, they submitted that they had complied with the requirements of
that provision (art. 3) to the extent that Austrian legislation permitted. As
the deportation order had become final, it could no longer be deferred. That
meant that, as Austrian law stood, the stay of execution of the measure against
the applicant was the only means whereby he could lawfully remain in Austrian
territory. Moreover, by submitting an application under section 36 (2) of the
Aliens Act (see paragraph 27 above), Mr Ahmed would be entitled to have the stay
extended for as long as the danger in Somalia persisted. If that application
were rejected, he could still apply to the Constitutional Court and the Administrative Court.
The Court reiterates in the first place that Contracting
States have the right, as a matter of well-established international law and subject
to their treaty obligations including the Convention, to control the entry,
residence and expulsion of aliens. It also notes that the right to political
asylum is not contained in either the Convention or its Protocols (see the
Vilvarajah and Others v. the United Kingdom judgment of 30 October 1991, Series
A no. 215, p. 34, para. 102).
However, the expulsion of an alien by a Contracting State 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 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 the Soering v. the United Kingdom judgment of 7 July 1989, Series A no. 161, p. 35, paras. 90-91; the 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 the Chahal v. the United Kingdom judgment of 15 November 1996,
Reports of Judgments and Decisions 1996-V, p. 1853, paras. 73-74).
The Court further reiterates that Article 3 (art. 3),
which enshrines one of the fundamental values of democratic societies (see the
above-mentioned Soering judgment, p. 34, para. 88), prohibits in absolute terms
torture or inhuman or degrading treatment or punishment, irrespective of the
victim’s conduct. Unlike most of the substantive clauses of the Convention and
of Protocols Nos. 1 and 4 (P1, P4), Article 3 (art. 3) makes no provision for
exceptions and no derogation from it is permissible under Article 15 (art. 15)
even in the event of a public emergency threatening the life of the nation (see
the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25,
p. 65, para. 163; the Tomasi v. France judgment of 27 August 1992, Series
A no. 241-A, p. 42, para. 115; and the above-mentioned Chahal judgment,
p. 1855, para. 79).
The above principle is equally valid when issues under Article
3 (art. 3) arise in expulsion cases. Accordingly, the activities of the
individual in question, however undesirable or dangerous, cannot be a material
consideration. The protection afforded by Article 3 (art. 3) is thus wider than
that provided by Article 33 of the 1951 Convention relating to the Status of
Refugees (see paragraph 24 above and the above-mentioned Chahal judgment, p.
1855, para. 80).
Like the Commission, the Court attaches particular weight
to the fact that on 15 May 1992 the Austrian Minister of the Interior granted
the applicant refugee status within the meaning of the Geneva Convention (see
paragraphs 11 and 24 above), finding credible his allegations that his
activities in an opposition group and the general situation in Somalia gave grounds to fear that, if he returned there, he would be subjected to
persecution (see paragraph 11 above). Although the applicant lost his refugee
status two years later, this was solely due to his criminal conviction; the
consequences of expulsion for the applicant were not taken into account (see paragraph
12 above).
However, in order to assess the risks in the case of an expulsion
that has not yet taken place, the material point in time must be that of the
Court’s consideration of the case. Although the historical position is of
interest in so far as it may shed light on the current situation and its likely
evolution, it is the present conditions which are decisive (see the
above-mentioned Chahal judgment, p. 1856, para. 86).
With regard to the present situation in Somalia, the Court bases its assessment on the findings of the Commission, to which, under the
Convention, the tasks of establishing and verifying the facts are primarily
assigned (see, inter alia, the above-mentioned Cruz Varas and Others judgment,
p. 29, para. 74). In its report of 5 July 1995 the Commission noted that the
situation in Somalia had changed hardly at all since 1992. The country was
still in a state of civil war and fighting was going on between a number of
clans vying with each other for control of the country. There was no indication
that the dangers to which the applicant would have been exposed in 1992 had
ceased to exist or that any public authority would be able to protect him.
Before the Court the Government did not contest the
applicant’s submission that there was no observable improvement of the
situation in his country. On the contrary, they explained that the Austrian
authorities had decided to stay execution of the expulsion in issue because
they too considered that, as matters stood, Mr Ahmed could not return to Somalia without being exposed to the risk of treatment contrary to Article 3 (art. 3).
That being the case, the Court reaches the same
conclusion, which moreover is not contradicted by any material in the file or
the information supplied by those who appeared at the hearing; nor, in view of
the absolute nature of Article 3 (art. 3), is that conclusion invalidated by
the applicant’s criminal conviction or the current lack of State authority in Somalia.
It follows that the applicant’s deportation to Somalia would breach Article 3 of the Convention (art. 3) for as long as he faces a serious
risk of being subjected there to torture or inhuman or degrading treatment.
III. APPLICATION OF ARTICLE 50 OF THE CONVENTION (art. 50)
Article 50 of the Convention (art. 50) provides:
"If the Court finds that a decision or a measure taken by
a legal authority or any other authority of a High Contracting Party is
completely or partially in conflict with the obligations arising from the ...
Convention, and if the internal law of the said Party allows only partial
reparation to be made for the consequences of this decision or measure, the
decision of the Court shall, if necessary, afford just satisfaction to the
injured party."
Under that provision (art. 50) the applicant claimed compensation
for damage and the reimbursement of his costs.
No breach of Article 3 (art. 3) has as yet occurred. Nevertheless,
the Court having found that the decision to deport Mr Ahmed would, if
implemented, give rise to such a breach, Article 50 (art. 50) must be taken as
applying to the facts of the present case (see, mutatis mutandis, the Beldjoudi
v. France judgment of 26 March 1992, Series A no. 234-A, p. 29, para. 84).
A. Damage
Mr Ahmed claimed 16,250 Austrian schillings (ATS) as compensation
for loss of earnings between 14 December 1994 and 23 March 1995, during
which period, he submitted, his imprisonment hadbeen unlawful.
The Delegate of the Commission made no observation.
Like the Government, the Court can discern no causal connection
between the alleged pecuniary damage and the conclusion with regard to Article
3 (art. 3) (see paragraph 47 above). This claim must therefore be rejected.
The applicant further claimed compensation for non-pecuniary
damage in a sum which he asked the Court to determine.
The Government left this matter to the discretion of the Court;
the Delegate of the Commission made no observation.
The Court considers that the applicant must have suffered non-pecuniary
damage but that the present judgment affords him sufficient compensation in
that respect.
B. Costs and expenses
In respect of costs and expenses incurred for the
proceedings brought in the Austrian courts and later before the Convention institutions,
Mr Ahmed claimed ATS 240,000, including ATS 100,000 for his legal fees incurred
in Strasbourg.
The Government submitted that they were not in a position to comment
on these figures, not having sufficient information on how they had been
arrived at. If, however, the Court were to find a violation, they were prepared
to pay ATS 100,000. The Delegate of the Commission made no observation.
Making an assessment on an equitable basis, the Court
awards the applicant ATS 150,000 under this head.
C. Default interest
According to the information available to the Court, the statutory
rate of interest applicable in Austria at the date of adoption of the present
judgment is 4% per annum.
FOR THESE REASONS, THE COURT
UNANIMOUSLY
1. Holds that it does not have jurisdiction to consider the applicant’s
complaints under Articles 5 and 13 of the Convention (art. 5, art. 13);
2. Holds that for as long as the applicant faces a real risk
of being subjected in Somalia to treatment contrary to Article 3 of the Convention
(art. 3) there would be a breach of that provision (art. 3) in the event of the
decision to deport him there being implemented;
3. Holds that as regards the non-pecuniary damage suffered by
the applicant this judgment in itself constitutes sufficient just satisfaction
for the purposes of Article 50 of the Convention (art. 50);
4. Holds that the respondent State is to pay the applicant, within
three months, 150,000 (one hundred and fifty thousand) Austrian schillings in
respect of costs and expenses and that simple interest at an annual rate of 4%
shall be payable from the expiry of the above-mentioned three months until
settlement;
5. Dismisses the remainder of the applicant’s claims.
Done in English and in French and delivered at a public
hearing in the Human Rights Building, Strasbourg, on 17 December 1996.
Rudolf BERNHARDT
President
Herbert PETZOLD
Registrar
