Yazdi v. Germany

Application no. 47547/99

Yazdi v. Germany

The European Court of Human Rights (Fourth Section) sitting on 29 June 1999 as a Chamber composed of

Mr M. Pellonpää, President,

Mr G. Ress,

Mr A. Pastor Ridruejo,

Mr L. Caflisch,

Mr J. Makarczyk,

Mr I. Cabral Barreto,

Mrs N. Vajić, Judges

With Mr V. Berger, Section Registrar;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 19 April 1999 by Masoud Ebrahimzadeh Moghadam Yazdi against Germany and registered on 19 April 1999 under file no. 47547/99;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, born in 1964, is an Iranian national and lives in Hagen (Germany). In the proceedings before the Court he is represented by Mr K.-H. Bartens-Winter, a lawyer practising inWuppertal.

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 3 May 1991 the applicant arrived in the Federal Republic of Germany. On 16 May 1991 he applied for asylum. In support of his request he submitted that, as a member of the People's Mujahedin movement, his father had been arrested and killed. The applicant further submitted that when distributing leaflets together with a friend, his friend had been arrested. Thereafter he himself had been arrested three times and detained for one to two days. His whole family, i.e. his mother and his three sisters, had fled from Iran. They had all been recognised as political refugees in Germany.

On 30 October 1992 the Federal Office for Refugees (Bundesamt für die Anerkennung ausländischer Flüchtlinge) dismissed the applicant's request on the ground that his submissions were not credible and invited him to leave the German territory within one month.

On 28 June 1994 the Arnsberg Administrative Court (Verwaltungsgericht) dismissed the action filed by the applicant against the refusal of asylum and his envisaged expulsion.

On 21 December 1995 the applicant renewed his request to be granted asylum (Asylfolgeantrag). When interviewed on 6 February 1996 at the Federal Office for Refugees, the applicant repeated the statements he had made in the first asylum proceedings, adding some more details. He further submitted that in the meantime he had engaged in political activities in Germany in favour of the People's Mujahedin movement, such as distributing leaflets, organising information stands, taking part in demonstrations and working in the movement's office in Bochum. The media, in particular television, had published information about these activities which thus came to the knowledge of the Iranian authorities. An Iranian witness called by the applicant stated, when also heard on 6 February 1996 before the Federal Office for Refugees, that he had met the applicant in the beginning of 1991 in front of the Teheran University near a bookshop with a third person called A. The latter had talked to the applicant and handed him a shoe box. According to the witness, he was not informed about the contents of the box for security reasons. The applicant did not remember A.'s first name, nor did the witness.

On 1 March 1996 the Federal Office for Refugees dismissed the asylum request on the grounds that the applicant's statements did not appear to be credible and that they were in contradiction with the statements made in the first proceedings and that his political activities in Germany were not important enough to establish a real and substantial fear of persecution in Iran.

On 11 March 1996 the applicant filed an action with the Arnsberg Administrative Court.

On 21 August 1998 the Arnsberg Administrative Court dismissed the applicant's action. According to the court, there was no indication that the applicant was persecuted when he had left his country, nor was there a sufficient likelihood that he would be persecuted if he were to return to his country. His earlier and his new submissions concerning his arrests in Iran were unsubstantiated. Accordingly, there was no need to take further evidence in this respect. As to the statements of the Iranian witness concerning the circumstances of the meeting with the applicant in front of the Teheran University, the court observed that there were contradictions between the applicant's and the witness's declarations. Furthermore, the witness could not confirm that the applicant was involved in the People's Mujahedin movement, since he had met him only once. The court added that the applicant's activities in Germany did not go beyond a mere presence at demonstrations and other events, and that they would not expose him to political persecution in Iran. Finally there was no reason to believe that the applicant would face persecution in Iran on the ground that he had requested asylum in Germany.

On 13 October 1998 the Administrative Court of Appeal (Oberverwaltungsgericht) of the Land of North Rhine-Westphalia rejected the applicant's request for leave to appeal (Antrag auf Zulassung der Berufung). In its decision it stated that the Administrative Court had correctly assessed the evidence and rejected the applicant's requests to take further evidence in a convincing manner. The Administrative Court had not acted arbitrarily in concluding that the applicant's submissions were unsubstantiated.

On 19 February 1999 the Hagen Administrative Authorities informed the applicant that following the final decision in his asylum proceedings, his residence permit was no longer valid and invited him to submit two passport photographs for the purpose of a provisional residence permit (Duldung) to be issued for the period during which the expulsion order could not be implemented for legal or practical reasons.

On 3 March 1999 the Parliament of the of the Land of North-Rhine Westphalia rejected a petition brought by the applicant on the ground that his submissions did not justify the granting of political asylum.

COMPLAINTS

Invoking Article 3 of the Convention, the applicant complains that, if returned to Iran, he would risk ill-treatment and death because of his political activities in that country and in Germany. In this connection he points out that his mother and his sisters were granted political asylum in Germany. He further complains of a contradictory and erroneous assessment of facts and evidence by the administrative courts in his case.

The applicant further submits that a constitutional complaint with the Federal Constitutional Court (Bundesverfassungsgericht) would have had no reasonable prospects of success, since there was no indication that the court decisions given in his case were contrary to the established case-law of the Federal Constitutional Court or arbitrary. In particular the Federal Constitutional Court was not competent to question the merits of decisions on the facts or the assessment of evidence taken by the administrative courts.

PROCEEDINGS BEFORE THE COURT

The application was introduced on 19 April 1999 and registered the same day. The applicant requested the Court to stay his expulsion from Germany.

On 12 May 1999 the President of the Fourth Section of the Court decided not to indicate to the Government of Germany, pursuant to Rule 39 of the Rules of Court, the measure requested by the applicant.

THE LAW

The applicant complains under Article 3 of the Convention about his envisaged expulsion to Iran. He submits that, if expelled to Iran , he would be exposed to torture or the death penalty.

Article 3 of the Convention provides as follows:

"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

The Court recalls that Contracting States have the right, as a matter of well-established international law and subject to their obligations under international treaties including the Convention, to control the entry, residence and expulsion of aliens. Moreover, the right to political asylum is not contained in either the Convention or its Protocols (see Eur. Court HR, Vilvarajah and others v. the United Kingdom judgment of 30 October 1991, Series A no. 215, p. 34, § 102). Nevertheless, expulsion by a Contracting State of an asylum seeker may give rise to an issue under Article 3 and, hence, engage the responsibility of the 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 in the receiving country. In these circumstances, Article 3 implies the obligation not to expel the person in question to that country (see Eur. Court HR, Chahal v. the United Kingdom judgment of 15 November 1996, Reports of Judgments and Decisions 1996-V, p. 1853, §§ 73-74; Ahmed v. Austria judgment of 17 December 1996, Reports 1996-VI, p. 2206, §§ 38 and 39).

In the light of these principles and the evidence before the Court, it appears doubtful whether the situation of which the applicant complains is such as to raise an issue under Article 3 of the Convention. However, the Court is not required to decide whether or not the facts alleged by the applicant disclose any appearance of a violation of the Convention, as the application is in any event inadmissible for the following reasons.

Article 35 § 1 of the Convention provides that the Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law. The Court recalls in this respect that Article 35 § 1 of the Convention is intended to provide national authorities with the opportunity of remedying violations alleged by an applicant (cf. Eur. Court HR, López Ostra v. Spain judgment of 9 December 1994, Series A no. 303-C, p. 52, § 38). The Court further recalls that applicants invoking Article 3 of the Convention are not dispensed as a matter of course from exhausting domestic remedies that are available and effective (cf. Eur. Court HR, Bahaddar v. the Netherlands judgment of 19 February 1998, Reports 1998-I, p. 263, § 45).

The Court notes that in the present case the applicant failed to lodge a constitutional complaint with the Federal Constitutional Court, invoking the right to political asylum and the right to a fair hearing as guaranteed by the German Basic Law (Grundgesetz). It is true that, in the applicant's submissions, a constitutional complaint would have had no chances of success.

However, while recognising the principle that an applicant is excused from pursuing domestic remedies which are bound to fail, the Court nevertheless finds that in such cases an applicant has to show either by providing relevant court decisions or by presenting other suitable evidence that a remedy available to him would in fact have been to no avail (cf. Comm HR, o. 11945/86, Dec. 12.3.1987, D.R. 51, p. 186). The Court further observes that the existence of doubt as to the chances of success of a domestic remedy does not exempt an applicant from the obligation to exhaust it (cf., e.g., Eur. Comm HR, no. 13669/88, Dec. 7.3.1990, D.R. 65 p. 245).

The Court concludes that in the present case no special circumstances existed which might have absolved the applicant, according to the generally recognised rules of international law, from exhausting the domestic remedies at his disposal.

It follows that the applicant has not complied with the condition as to the exhaustion of domestic remedies, and the application must therefore be rejected under Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Vincent Berger

Matti Pellonpää

Registrar, President