ECtHR - Ahmed v. Austria, Application No. 25964/94, 17 December 1996

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Country of Applicant: 
Somalia
Date of Decision: 
17-12-1996
Court Name: 
European Court of Human Rights
Headnote: 

This case involved a Somali refugee in Austria whose refugee status was ordered as forfeited after a criminal conviction. Because of the absolute nature of Art. 3, the Court found his criminal conviction immaterial and that he still faced a serious risk of persecution in Somalia, therefore Austria would breach its obligations under Art. 3 if his deportation was executed. 

Facts: 

The case originated in an application lodged by a Somali citizen, with the Commission against Austria on 13 December 1994, alleging a breach of Austria’s obligations under Art. 3 ECHR in the event of the applicant being deported to Somalia. At the time of the case, the applicant lived in Graz (Styria).

The applicant left Somalia and reached the Vienna Airport in October 1990, after which he requested refugee status. He stated that his uncle had been an active member of the United Somali Congress (“USC”) and that his father and brother, though not members, had assisted him and been executed, after which he and his family had been suspected of belonging to the USC. The applicant’s car had been confiscated and he had been assaulted; he left Somalia because of fear of being arrested and executed.

The Styria Public Security Authority rejected his application in 1991 but on appeal the Minister of the Interior reversed and granted refugee status within the meaning of the Geneva Convention in 1992. In July 1994 the Federal Refugee Office in Graz ordered the forfeiture of his refugee status pursuant to the Right of Asylum Act § 5 (1)(3) following a judgment of the Graz Regional Court in 1993 sentencing the applicant to two and a half years imprisonment for attempted robbery. In September 1994 the Minister of the Interior dismissed an appeal by the applicant. The Administrative Court set aside this decision in February 1995, holding that the applicant’s conviction for a “particularly serious crime”, which had been interpreted in domestic legislation as  any offence punishable by a term of imprisonment exceeding five years; attempted robbery is punishable by up to ten years’ imprisonment, had only evidential relevance and that it could not be deduced that, ipso facto, the applicant constituted a danger to Austrian society. In April 1995 the Minister of the Interior again ordered the forfeiture of the applicant’s refugee status and noted the applicant’s attempted robbery and also other measures taken against the applicant, stating that together the offences revealed a tendency to aggression. The Administrative court upheld this decision.

At the same time, in 1994 the Graz Federal Police Authority had issued an indefinite exclusion order against the applicant under § 18 (1) and (2) of the Aliens Act. The applicant’s appeal against this decision was dismissed though the period specified in the exclusion order was reduced to ten years. In January 1995 the Styria Independent Administrative Tribunal upheld his appeal against this measure and he was therefore released after having been taken into custody in 1994 after he was released on parole. In April 1995 the Federal Refugee Office declared the proposed expulsion of the applicant lawful: even if he risked persecution in Somalia, where the situation for his clan had worsened according to the applicant, because it took the view that his offences revealed a tendency toward aggression, it could not be excluded that he constituted a danger to the community within the meaning of § 37 (4) of the Aliens Act. In May 1995 the Styria Public Security Authority set aside the Graz Federal Policy Authority’s decision to dismiss the applicant’s appeal, which the latter then stayed his expulsion for a renewable period of one year in November, finding that he would be at risk of persecution in Somalia. 

Decision & Reasoning: 

While the applicant requested the Court to consider the facts under Art. 5 and 13 and not only Art. 3, the Court could not entertain these complaints because no Art. 5 or 13 complaints were submitted in the application to the Commission.

1)      Alleged Breach of Article 3

Reiterating the dicta espoused in its previous case law the Court stated that notwithstanding a Contracting State’s right to control entry to its territory, an expulsion may give rise to an Article 3 violation where the person in question would face a real risk of being subjected to ill-treatment in the receiving country.The Court further reiterated that Art. 3’s prohibition is in absolute terms and allows for no derogation even in the event of a public emergency. This principle is equally valid in expulsion cases, and as such, the activities of the individual in question, however undesirable or dangerous, cannot be a material consideration (see Chahal).

The Court attached weight to the fact that in 1992 the applicant was granted refugee status, finding his allegations that he would be subjected to persecution if returned to Somalia credible, and that he lost this status solely due to his criminal conviction. To assess the risks in an expulsion that has not yet taken place the Court must examine the point in time which is the Court’s consideration of the case, and not the historical position, even if it is of interest. It is the present conditions which are decisive.

According to the findings of the Commission, the situation in Somalia in 1995 had hardly changed since 1992 and 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. Austria did not contest this but submitted that his deportation order had become final and could no longer be deferred and that the stay of execution was the only means by which he could lawfully remain in Austria. The Court agreed that the applicant’s deportation to Somalia would lead to the applicant facing a serious risk of treatment contrary to Art. 3. Therefore, his deportation would breach Art. 3 for as long as he faced a serious risk of being subjected there to torture or inhuman or degrading treatment, and that this conclusion on the absolute nature of Art. 3 was not invalidated by the applicant’s criminal conviction or the lack of State authority in Somalia at the time.

2)      Application of Article 50

The Court found no causal connection between the alleged pecuniary damage (compensation for loss of earnings between 14 December 1994 and 23 March 1995, during which the applicant submitted, his imprisonment had been unlawful) and the conclusion with regard to Art. 3, and thus this claim for damages was rejected. The Court further considered that the applicant must have suffered non-pecuniary damage but that the present judgment afforded hum sufficient compensation in this respect. 

Outcome: 

Application granted. 

Observations/Comments: 

This case emphasized the absolute nature of Art. 3 where there is a real risk of treatment contrary to the provision, even when an individual had been previously convicted of criminal charges. 

Case Law Cited: 

ECtHR - Masson and Van Zon v. the Netherlands, Appl. Nos. 15346/89 15379/89, 28 September 1995

ECtHR - Vijayanathan and Pusparajah v. France (nos.17550/90,17825/91), 27 August 1992

ECtHR- Ireland v. United Kingdom, Application no. 5310/71

ECtHR - Beldjoudi v France, Application No. 12083/86

ECtHR - Cruz Varas & Others v Sweden (Application no. 15576/89)

ECtHR - Tomasi v France (Application no. 12850/87)
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Other sources cited: 

 

 

 

Authentic Language: 
English
State Party: 
Austria
National / Other Legislative Provisions: 
Austria - 1991 Right to Asylum Act
Austria - 1992 Aliens Act