CASE OF AHMED v. AUSTRIA
(Application no. 25964/94)
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,
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:
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).
"... 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.
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,
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
B. The expulsion proceedings
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.
II. Relevant international and domestic law
A. The Geneva Convention of 28 July 1951 relating to the Status of Refugees
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
2. The Aliens Act
- 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).
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
FINAL SUBMISSIONS TO THE COURT BY THE GOVERNMENT
AS TO THE LAW
I. SCOPE OF THE CASE
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION (art. 3)
"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.
III. APPLICATION OF ARTICLE 50 OF THE CONVENTION (art. 50)
"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.
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 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
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.
C. Default interest
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.
 The case is numbered 71/1995/577/663. The first number is the case's position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.
 Rules of Court B, which came into force on 2 October 1994, apply to all cases concerning the States bound by Protocol No. 9 (P9).
 For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions 1996-VI), but a copy of the Commission's report is obtainable from the registry.