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FIRST
SECTION
CASE OF A.L. v. AUSTRIA
(Application
no. 7788/11)
JUDGMENT
(Merits)
STRASBOURG
10
May 2012
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of A.L. v. Austria,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Peer
Lorenzen,
Elisabeth Steiner,
Khanlar
Hajiyev,
Mirjana Lazarova Trajkovska,
Julia
Laffranque, judges,
and André Wampach,
Deputy
Section Registrar,
Having
deliberated in private on 17 April 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 7788/11) against the Republic
of Austria lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Togolese national, Mr A.L. (“the
applicant”), on 27 January 2011. The President of the
Section acceded to the applicant’s request not to have his name
disclosed (Rule 47 § 3 of the Rules of Court).
- The
applicant, who had been granted legal aid, was represented by
Mr B. Rosenkranz, a lawyer practising in Salzburg. The
Austrian Government (“the Government”) were represented
by their Agent, Ambassador H. Tichy, Head of the International Law
Department at the Federal Ministry for European and International
Affairs.
- The
applicant alleged that if returned to Togo he would be subjected to
persecution and arbitrary treatment, possibly leading to his death.
- On
9 February 2011, the Court decided to apply Rule 39 of the Rules of
the Court indicating to the Government that it was desirable in the
interests of the parties and the proper conduct of the proceedings
not to expel the applicant.
- On
30 May 2011 the application was communicated to the Government. It
was also decided to rule on the admissibility and merits of the
application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1988 and lives in Salzburg.
A. The asylum proceedings in Austria
- On
20 November 2008 the applicant arrived at Vienna airport and applied
for asylum.
- During
the asylum proceedings, the applicant was heard on 22 November
and 25 November 2008, and on 6 July 2009. In the course of those
interviews he submitted that he was a member of the political party
UFC (Union des Forces de Changement), which was at the time an
opposition party in Togo. In 2005, he was attacked by soldiers and
members of the ruling party of Togo and thereupon fled to Benin,
where he stayed until the end of 2006. He then returned to Togo.
- In
summer 2008, areas of Togo were flooded and the applicant and his
family lost their house and their possessions. They thus moved to a
camp for flood victims. The applicant claimed that relief items sent
by international organisations were unequally distributed in the
camp, which was why he and a group of other young members of the UFC
criticised the distribution methods and attempted to distribute the
goods themselves. However, soldiers threatened the applicant by
saying, inter alia, that after the 2010 elections, the
applicant and other UFC party members “would see what would
happen.” This was the reason why the applicant decided to leave
Togo and fled to Europe.
- When
making further statements on 6 July 2009, the authorities told the
applicant that since the 2007 elections, the UFC held twenty-seven
seats in the Togolese parliament. The applicant replied that he was
aware of this. When asked who exactly had persecuted him, he repeated
that during his stay in the camp for flood victims, he and other
members of the UFC had organized demonstrations to demand fair
distribution of the relief supplies, as some members of the UFC had
not received any of the food donations. On 5 or 6 August 2008 the
police came to the camp and told them they “would see what
would happen”. The applicant left the camp on 7 August
2008 and stayed with a friend in Lomé for approximately two
months. Subsequently, he went on to Ghana.
- The
applicant stated that he was afraid that upon his return, the police
would kill him because of his membership of the UFC. To the asylum
authorities’ reminder that the UFC was now an active and
official part of the government, the applicant replied that the de
facto regime of the last forty-three years was still in power and
that there was no democracy in Togo.
- On
6 July 2009, the Federal Asylum Office (Bundesasylamt)
rejected the applicant’s request for asylum and subsidiary
protection and ordered his expulsion to Togo. It held that the fear
of persecution described by the applicant was not credible and that
the applicant’s story seemed to have been fabricated around
real events. In the event of his return the applicant would not face
a real risk of a violation of Articles 2 or 3 or of Protocols Nos. 6
or 13 to the Convention.
- With
reference to the relevant country reports, the Federal Asylum Office
stated that on 14 October 2007, parliamentary elections were held in
Togo in which the former president’s party, RPT, won fifty
seats, the UFC twenty-seven seats and the party of the former prime
minister, CAR, four seats in parliament. Despite the elections having
been described as generally fair and free, Togo could not yet be
considered a representative democracy. The 2005 presidential
elections were considered rigged and had been accompanied by severe
outbursts of violence. With regard to respect for human rights in
Togo, the Federal Asylum Office held that although the situation had
improved slightly, serious violations of human rights persisted, such
as inhuman treatment of prisoners, impunity for illegal acts
committed by the authorities, arbitrary arrests, prolonged detention
pending trial, and similar. Freedom of opinion, freedom of the press
and freedom of assembly were not generally respected. No violence on
the part of state organs or government forces against opposition
members had been recorded since the end of 2005. Opposition parties,
media, associations of civil society and religious faiths were free
to act.
- Turning
to the applicant’s arguments, the Federal Asylum Office held
that while the applicant’s account of the flood and the
tensions with the security forces in the camp were credible, the
alleged threats by the police and the resulting fear of the applicant
were not, and the fact that the police had apparently not used
violence against the inhabitants of the camp was in contradiction
with the applicant’s statements. Furthermore, since the 2007
parliamentary elections the UFC had held twenty-seven seats in
parliament. Lastly, according to the Federal Asylum Office’s
information, returned asylum seekers had not been subjected to
systematic persecution. Therefore, the authority concluded that the
applicant’s claim for asylum was based on a fabricated story
and that he had only submitted speculations on what could happen to
him upon his return to Togo, and provided no indication of actual
persecution against him on grounds recognized in Article 1 Section A
Number 2 of the 1951 United Nations Convention
Relating to the Status of Refugees. The Federal Asylum Office
also rejected the applicant’s application for subsidiary
protection, holding that he would not be exposed to a risk of
persecution if returned.
- The
applicant appealed and complained that he had been informed that it
was not possible for the authority to collect more than three
different pieces of evidence and had refused to take all the evidence
the applicant had put forward. He had also had difficulty
understanding the interpreter properly and was never given a chance
to tell his story, as he had only been asked questions to which he
could answer “yes” or “no”. Thus, the
authority should not be allowed to claim that the applicant’s
account was too vague and unsubstantiated, as it had never given him
the opportunity to substantiate his story. The applicant claimed that
due to a translation error, it was not recorded that he had been
beaten up by the police several times after he had participated in
demonstrations in the wake of the 2005 presidential elections. In
addition, the fact that he had fled to Benin and stayed there until
2006 had not been taken into account, and nor had the fact that the
police had searched for him several times. The applicant had also
been beaten up together with the other protestors when they had
organised a demonstration in the camp for flood victims. He stated
that even though the UFC was represented in parliament, regular UFC
members were still subject to persecution, and in the event of his
return to Togo, the authorities would “make him disappear”
and probably kill him.
- The
Asylum Court (Asylgerichtshof) held a hearing on 29 April
2010. The applicant submitted a UFC membership card and confirmation
that he had been an active member and had returned to Togo on 14
October 2007 after having fled to Benin. He also provided a newspaper
article from the paper “Express” of 23 March 2010,
according to which his cousin’s whereabouts after having been
arrested were unknown, and the police were also looking for the
applicant on account of his involvement in the demonstrations in the
camp for victims of the floods in July and August 2008. Finally, the
applicant submitted a newspaper article about a protest march in 2010
during which protestors were ill-treated by state forces.
- In
the course of the hearing, the Asylum Court emphasised contradictions
in the applicant’s statement, for example, in relation to his
school education, which he had allegedly followed until 2006 in Togo,
although he claimed to have fled to Benin in April 2005. The
applicant replied that he had spent the week in Togo to go to school,
but the weekends in Benin for safety reasons and to avoid arrest in
Togo. The Court also noted that the applicant had at one point stated
that he had never been beaten up by the police, only verbally
threatened, whereas he had then claimed to have been beaten up by the
police in the course of the demonstrations in the camp for flood
victims. The applicant referred to language problems in the drafting
of his appeal to the Asylum Court. He repeated that he had never been
beaten up by the police, but that they had wanted to arrest him
because of the demonstrations about the unfair distribution of food
in the camp. He had fled on 7 August 2008, after the soldiers had
threatened to arrest him and the other demonstrators. The applicant
also mentioned that another organizer of the demonstrations, M.A.,
had in the meantime been granted asylum in Austria.
- On
7 May 2010, the Asylum Court dismissed the applicant’s claim
for asylum or subsidiary protection, and ordered his expulsion to
Togo. It held that the applicant’s claims were not credible,
and the contradictions in his statements were not – as the
applicant had claimed – due to translation errors. It stated
that the newspaper article from the paper “Express”
appeared to be a fake which had been paid for, as it was not probable
that two years after the demonstrations in the camp a newspaper would
still publish such a story. In addition, the statement of the UFC
according to which the applicant had fled Togo and only returned in
October 2007 was in contradiction with his statements that he had
returned at the end of the year 2006.
- The
applicant lodged a complaint with the Constitutional Court
(Verfassungsgerichtshof) against that decision and
applied for suspensive effect, which was granted on 30 July 2010.
However, on 21 September 2010, the Constitutional Court rejected the
applicant’s request for legal aid and refused to deal with the
complaint.
B. Application to re-open asylum proceedings
- The
applicant applied for the proceedings to be re-opened
(Wiederaufnahme des Verfahrens), submitting a newspaper
article from the paper “Le Patriote” dated 3 December
2008 which stated that due to the demonstrations in the camps, a
clash between the police and a group of young people – among
which the applicant was mentioned by name – had occurred. He
also submitted other documents and a “verification report”
in relation to the authenticity of the newspaper article from “Le
Patriote”, which had been drawn up in the course of M.A.’s
asylum proceedings.
- On
27 October 2010 the Asylum Court dismissed the applicant’s
request for the re-opening of the asylum proceedings. With regard to
the newspaper article from “Le Patriote”, it found that
it was unlikely that a newspaper would report on events about food
distribution in a camp for flood victims half a year after that
occurrence. Furthermore, it was well known to the court that such
articles could be easily bought in Togo and that the applicant had
only presented the print-out of an internet download of the page,
which was again an indication of it being a falsification. This
conclusion could not be altered by the “verification report”,
which was not a reliable source for establishing the authenticity of
the article and any resulting danger of persecution for the
applicant, especially taking into consideration that it had not been
drawn up in the course of the applicant’s proceedings, but for
entirely different proceedings. Even if the article from “Le
Patriote” were considered evidence to support the applicant’s
story, it alone was not enough to outweigh all the other remaining
inconsistencies in his account presented in the former proceedings.
- The
applicant applied for legal aid to lodge a complaint against that
decision. However, on 15 December 2010, the Constitutional Court
rejected the application for legal aid due to lack of the
application’s prospects of success.
C. The proceedings before the Court for an interim
measure
- On
26 January 2011, the applicant, represented by counsel, lodged an
application and a request for an interim measure under Rule 39 of the
Rules of the Court to stay his expulsion to Togo.
- On
9 February 2011, the President of the Section granted the request for
an interim measure and asked the Government to inform the Court as to
the exact content of the documents and the “verification
report” submitted by the applicant in the proceedings for the
re-opening of his asylum claim. Furthermore, if the document was
public, the Government was asked to submit the “verification
report” to the Court. Finally, they were requested to explain
to what extent that report was relevant to the granting of asylum to
M.A.
- On
9 March 2011, the Government confirmed that the “verification
report” had been commissioned by the Austrian authorities in
the course of M.A.’s asylum proceedings to verify the
authenticity of the same article from “Le Patriote”,
which had been submitted in M.A.’s asylum proceedings and which
also featured M.A.’s full name, as it did the applicant’s,
in the context of the demonstrations in the camp for flood victims in
relation to problems with the distribution of relief items. However,
the Government emphasised that neither the authenticity of the
article nor the chief editor’s information on the extensive
research done for the article could prove that the events were
relevant to the applicant’s asylum status. The Government
further stated that the “verification report” was not
public and that it did not concern the applicant. Therefore, reasons
of data protection prevented the Government from submitting the whole
report. With regard to the importance given to the article and the
“verification report” in M.A.’s asylum proceedings,
the Government submitted that the finding that the article was
authentic carried no more weight in those asylum proceedings than
other evidence, and that it had been considered together with all the
other evidence in M.A.’s proceedings without taking any
precedence.
D. M.A.’s asylum proceedings
- M.A.
was interviewed for the first time by the Federal Asylum Office on 25
November 2008. He stated there that because of the flood in August
2008, his family had lost their house and moved to a camp for flood
victims. In the camp, relief items were distributed by soldiers and
social workers; however, they did not allow him and his friends to
help with the distribution, called them “members of the
opposition” and threatened them by stating “you will see
what will happen to you”. M.A. was again interviewed on 3 July
2009. Asked to freely narrate his reasons for fleeing his country, he
added that at the camp for flood victims, only supporters of the
ruling government had had access to the relief items, whereas other
groups of people and M.A. himself had not. Several families had
protested against those practices and eventually M.A. had organised
demonstrations against the way relief items were distributed in the
camp. As a result, the police had come, beaten them up and prohibited
any further demonstrations. Police and security services had accused
M.A. and his followers of causing disturbances in the camp and
uttered their threats. M.A. had told the story to a member of the
UFC, who had helped him to leave the country. M.A. further claimed
that he had also been persecuted by the military in 2005 in the
course of the presidential elections and the ensuing violent
protests. Soldiers had come to his house several times, but he had
never been there. He had also failed to comply with a number of
summonses, but had left for Ghana and stayed there until 2007. He had
returned to Lomé in 2007 and had not had any problems with the
authorities until the events in the camp for flood victims.
- On
19 October 2009, the Federal Asylum Office granted M.A. asylum in
Austria. The decision did not elaborate on the reasons for granting
him asylum in any depth. Referring to unspecified evidence in the
file, the authority concluded that M.A.’s submissions
concerning the reasons for his fear of persecution, taken in
conjunction with the results of investigations conducted by it, were
credible.
II. RELEVANT DOMESTIC LAW
- On
1 July 2008, an Austrian amendment statute repealed the possibility
to lodge a complaint against a second-instance decision in asylum
matters with the Administrative Court (Verwaltungsgerichtshof).
- Before
1 July 2008, Article 129c of the Austrian Federal Constitution had
provided the possibility for decisions taken in asylum matters in the
first instance to be appealed against in the form of a complaint with
the Independent Federal Asylum Panel (Unabhängiger
Bundesasylsenat). To appeal against decisions taken by the
Independent Federal Asylum Panel, an applicant had the option of
lodging a complaint with the Constitutional Court and/or with the
Administrative Court.
- After
the entry into force on 1 July 2008 of the amending statute in asylum
matters, which established the Asylum Court and repealed the Law on
the Independent Federal Asylum Panel, it was no longer possible to
lodge a complaint with the Administrative Court due to lack of
jurisdiction: since 1 July 2008, the Asylum Court has decided upon
appeals brought against decisions taken in asylum matters in the
first instance. As concerns the possibility to lodge a complaint
against a decision by the Asylum Court, Article 133 no.1 of the
Federal Constitution reads as follows:
“Article 133. The following matters are excluded
from the jurisdiction of the Administrative Court:
1. matters pertaining to the jurisdiction of
the Constitutional Court;
.....”
- The
new Article 144a of the Federal Constitution concerning jurisdiction
of the Constitutional Court now reads – after the entry into
force of the amending statute – as follows:
“Article 144a. (1). The Constitutional Court shall
decide on complaints against decisions of the Asylum Court where the
appellant alleges an infringement of a constitutionally guaranteed
right by such decision ... .
(2) The Constitutional Court may decline to
deal with a complaint ... if it has no reasonable prospects of
success or if the decision is not expected to clarify a
constitutional problem.”
- In
sum, Austrian asylum procedure includes the possibility of lodging a
full appeal with the Asylum Court against a decision taken by the
Federal Asylum Authority. Since 1 July 2008, the Austrian
Administrative Court has no longer had jurisdiction over a complaint
lodged against a decision by the Asylum Court. However, an asylum
seeker can still lodge a complaint with the Constitutional Court
alleging a violation of a right guaranteed under the Federal
Constitution.
- In
Austria the European Convention on Human Rights has the status of a
constitutional law (Federal Law Gazette 59/1964).
- Finally,
section 58 paragraph 2 of the General Administrative Procedure Act
provides that a decision rendered by an administrative authority must
only be reasoned if the party’s arguments were not fully
adhered to.
III. RELEVANT INTERNATIONAL INFORMATION ON TOGO
A. The UNHCR Update on International Protection Needs
of Asylum Seekers From Togo, dated 7 August 2006
- In
August 2006, the United Nations High Commissioner for Refugees
(UNHCR) updated his information on the international protection needs
of asylum seekers from Togo. It referred to its position paper dated
August 2005 in which it had urged, inter alia, a moratorium on
forced returns in the light of the precariousness of the security
situation in Togo following an outburst of human rights violations in
the aftermath of the presidential elections of April 2005. In the
twelve months since, the report found that the situation in Togo had
stabilised and in a number of ways improved. Reports of kidnappings
and killings at night continued to be received but in substantially
diminished numbers. There had been no fresh outbreaks of widespread
violence. According to UN and diplomatic sources, the Togolese
government evinced a genuine intention to resolve issues with the
political opposition in the country, although this intention had not
yet translated into meaningful reform. However, Amnesty International
reported on the complete impunity in Togo for the perpetrators of the
outbursts of violence in 2005. The UNHCR for its part acknowledged
the difficulties balancing the desire for reconciliation and for
justice and referred to a general amnesty announced by the Togolese
Prime Minister, Edem Kodjo.
- The
UNHCR further referred to an avowed reluctance of many refugees to
return to Togo, which was considered to be due in part to the lack of
independent and reliable information on the treatment of individuals
who had returned to Togo. It concluded that there was insufficient
and contradictory information on the treatment of returnees to Togo
to allow for a determination of the issue.
- Based
on the above conclusions, the UNHCR amended its position of August
2005 in respect to the international protection needs of Togolese
asylum seekers and urged host countries to consider every asylum
claim on the basis of their individual merits and pursuant to the
requirements of the 1951 United Nations
Convention Relating to the Status of Refugees. Individuals already
recognized as refugees should for the time being retain their status.
For individuals found not to be in need of international protection
following the determination of their claims in fair and efficient
proceedings including a right of appeal, UNHCR did not object to
their return to Togo. Host States’ obligations under the
principle of non-refoulement
under application of human rights law remained unaffected and
compelling humanitarian reasons were to be given due consideration.
B. Schweizerische
Flüchtlingshilfe (Swiss Refugee
Council): Information paper regarding membership of the UFC of 18 May
2009
- Following
an application by a Togolese refugee in asylum proceedings in
Switzerland, the organization Schweizerische Flüchtlingshilfe
created a report in May 2009 about the current situation of members
of the opposition party UFC in Togo.
- The
UFC participated for the first time in the parliamentary elections on
14 October 2007. Pursuant to international observers, those elections
took place peacefully and in an orderly fashion. The governing party
RPT won fifty of the eighty-one seats of the Togolese parliament and
the UFC, as the strongest opposition party, won twenty-seven seats.
The UFC contested the election results and claimed forged ballots.
The independent national election commission, CENI, noted that more
than 300 of 750 ballot boxes were not correctly sealed. However, the
Constitutional Court finally confirmed the election results.
- The
report confirmed that from 2006 onwards the Government had bowed to
international pressure and tried increasingly to re-establish
national dialogue among the government, the opposition and
representatives of civil society, since such a dialogue was a
condition for the re-instatement of economic cooperation with the
European Union. High-level members of the opposition were considered
to be safe in view of the Togolese government’s own interest in
international approval of the democratisation process in the country
and the ensuing economic consequences. However, the situation was
different for opposition activists who had no public standing, and
for “simple” members who went on protest marches and
became entangled in skirmishes with the military. An [unnamed] expert
on Togolese affairs was quoted as saying that those opposition
members were still being secretly arrested, threatened and tortured,
but that their stories would never be heard by the broader public.
- Freedom
of speech was still not guaranteed in Togo, a fact which was
illustrated by the dissolution by use of teargas of a peaceful march
organised by the UFC to mark the 49th Independence Day on 27 April
2009. It was unclear if demonstrators had also been arrested at the
march.
- The
report concluded that UFC members of low public profile could still
be victims of reprisals in Togo upon their return. Returnees from
Europe were furthermore viewed with more suspicion than returnees
from Benin or Ghana.
C. 2010 Human Rights Report on Togo of the United
States Department of State dated 8 April 2011
- With
regard to arbitrary or unlawful deprivation of life, disappearances
and torture in Togo, the report referred to several notifications
that the government or its agents had committed arbitrary or unlawful
killings during the year. Amnesty International had reported that
several people had died in detention in 2009 “probably as a
result of torture or other ill-treatment”. In January 2009, a
UN special rapporteur found evidence that police and gendarmes abused
detainees during interrogation, guards beat prisoners and young
persons and children were at risk of corporal punishment while in
detention. Impunity for such actions remained a problem.
- On
4 March 2010, the RPT candidate Faure Gnassingbé was
re-elected as president with 61 percent of votes cast. International
and national observers monitoring that election declared it generally
free, fair, transparent and peaceful. The government arrested and
held sixteen political detainees in connection with the presidential
election, but denied that fact in public. As of September, according
to Amnesty International and the League of Togolese Human Rights all
sixteen detainees were released. None of those political prisoners
had been mistreated.
- Following
the March elections, the UFC split into two factions, one led by
Jean-Pierre Fabre, presidential candidate, and the other led by UFC
president Gilchrist Olympio, who agreed to join the ruling RPT. As a
result of an agreement between Olympio and the government, seven UFC
ministers joined the presidential cabinet. As a result of internal
rivalries in the UFC, the government banned the UFC weekly marches,
justifying the action on the grounds that Fabre was no longer the
lawful leader or the voice of the party.
- Even
though freedom of speech and of the press and freedom of assembly
were guaranteed by the law and the constitution, the government
continued to restrict those rights.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained that if returned to Togo he would be persecuted
and subjected to arbitrary treatment that could lead to his death. He
relied on Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- The
Government contested that argument.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The submissions of the parties
- The
applicant claimed that due to his membership of the UFC and the
events in the camp for flood victims in 2008, where he had been
threatened in the course of protests against the unequal distribution
of relief items, he would be at risk of persecution and probably
death if returned to Togo.
- The
applicant submitted that the Austrian authorities had not
sufficiently examined the newspaper articles he had provided in the
domestic proceedings. He claimed that M.A. had been granted asylum on
the basis of the article in “Le Patriote” taken in
conjunction with the “verification report”, but that the
Austrian authorities had failed to properly evaluate this information
in his own proceedings.
- The
Government asserted that the applicant’s asylum claim had been
examined in substance at two levels of jurisdiction based on
extensive country reports that allowed for an evaluation of the
security and human rights situation in the country of origin. The
Federal Asylum Office and the Asylum Court had both thoroughly
considered the applicant’s arguments and concluded after
examining all the statements and evidence that the applicant would
not be subjected to treatment contrary to Article 3 of the Convention
if returned to Togo. The information on the general situation in Togo
after the parliamentary elections in 2007 had not suggested that
there was a real and concrete risk for the applicant. The applicant
had not succeeded in the domestic proceedings in sufficiently
substantiating his reasons for fleeing Togo.
- When
the applicant claimed that the Asylum Court had not properly
evaluated the evidence submitted by the applicant, the Government
replied that the statements made by the applicant had not been
sufficiently conclusive and were in parts outright contradictory. The
domestic authority had also considered the “verification
report” of the article from “Le Patriote”, the
confirmation letter of the UFC regarding the applicant’s
membership and the article in the “Express” in its
assessment of the credibility of the applicant’s statements.
However, after consideration of all the relevant circumstances, the
Asylum Court had found that those documents were not apt to prove
that the applicant would face a real risk of treatment contrary to
Article 3 of the Convention if deported to Togo.
2. The Court’s assessment
a) General principles
- It
is the Court’s settled case-law that as a matter of
well-established international law, and subject to their treaty
obligations, including those arising from the Convention, Contracting
States have the right to control the entry, residence and removal of
aliens (see, among many other authorities, Hilal v. the United
Kingdom, no. 45276/99, § 59, ECHR 2001 II, and Saadi
v. Italy [GC], no. 37201/06, § 124, ECHR 2008). In addition,
neither the Convention nor its Protocols confer the right to
political asylum (see Vilvarajah and Others v. the United Kingdom,
30 October 1991, § 102, Series A no. 215, and Ahmed v.
Austria, 17 December 1996, § 38, Reports of Judgments and
Decisions 1996 VI).
- However,
expulsion by a Contracting State may give rise to an issue under
Article 3, and hence engage the responsibility of that State under
the Convention, where substantial grounds have been shown for
believing that the person concerned, if deported, faces a real risk
of being subjected to treatment contrary to Article 3. In such a
case, Article 3 implies an obligation not to deport the person in
question to that country (see Soering v. the United Kingdom, 7
July 1989, §§ 90-91, Series A no. 161; Ahmed, cited
above, § 39; Chahal v. the United Kingdom, 15 November
1996, § 80, Reports 1996 V; and Saadi, cited
above, § 125).
- The
assessment of whether there are substantial grounds for believing
that the applicant faces such a real risk inevitably requires that
the Court assess the conditions in the receiving country against the
standards of Article 3 of the Convention (Mamatkulov and
Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, §
67, ECHR 2005-I). These standards imply that the ill-treatment the
applicant alleges he will face if returned must attain a minimum
level of severity if it is to fall within the scope of Article 3. The
assessment of this is relative, depending on all the circumstances of
the case (Hilal, cited above, § 60).
- In
order to determine whether there is a real risk of ill-treatment in
this case, the Court must examine the foreseeable consequences of
sending the applicant to Togo, bearing in mind the general situation
there and his personal circumstances (see Vilvarajah and Others,
cited above, § 108 in fine). It will do so by
assessing the issue in the light of all material placed before it,
or, if necessary, material obtained proprio motu (see H.L.R.
v. France, 29 April 1997, § 37, Reports 1997 III,
and, more recently, Hirsi Jamaa and Others v. Italy [GC], no.
27765/09, § 116, 23 February 2012).
- If an applicant has not yet been extradited or
deported when the Court examines the case, the relevant time will be
that of the proceedings before the Court (see Saadi, cited
above, § 133). A full and ex nunc assessment is called
for as the situation in a country of destination may change over the
course of time. Even though the historical position is of interest
insofar as it may shed light on the current situation and its likely
evolution, it is the present conditions which are decisive and it is
therefore necessary to take into account information that has come to
light since the final decision taken by the domestic authorities (see
Salah Sheekh v. the Netherlands, no. 1948/04, § 136, ECHR
2007-I (extracts)).
b) Application of the above principles to
the present case
i. Information and material requested from
the Austrian Government
- In
order to be able to properly examine all the circumstances relevant
to an assessment of the applicant’s real and individual risk of
ill-treatment within the meaning of Article 3 in the event of his
return to Togo, the Court requested the Government to supply
additional information on the “verification report” and
to explain to what extent that report had been taken into account in
the comparable asylum proceedings of M.A., a Togolese national who
had been granted asylum based on very similar reasons for fleeing his
country as the applicant’s.
- The
Government complied in part and provided some information in their
submissions of March 2011. However, the Court cannot but note that
the Government failed to provide the “verification report”,
relying on reasons of “data protection” without
explaining in what way the submission of a “verification
report” of a – presumably public - newspaper article
could be considered to violate the domestic and/or general principles
of data protection.
- The
Court reiterates that it is essential to the effective operation of
the system of individual petition under Article 34 of the Convention
that States should furnish all necessary assistance to make possible
an effective examination of applications (see recently Giuliani
and Gaggio v. Italy, no. 23458/02, § 269, 25 August
2009). In the present case the Court finds that the Austrian
Government did not deal exhaustively with the Court’s requests
for supplementary information.
ii. Overall assessment of whether the
applicant runs a real risk of suffering treatment proscribed by
Article 3 in the event of his return to Togo
- However,
the limited cooperation on part of the Government does not prevent
the Court from examining the applicant’s complaint on its
merits (see, mutatis mutandis, Giuliani and Gaggio,
cited above, § 270, which was confirmed by Giuliani and
Gaggio v. Italy [GC], no. 23458/02, §§ 343-344, 24
March 2011).
- The
Court acknowledges that the applicant in particular based his
argument on the fact that M.A., who had comparable reasons for
fleeing Togo, was granted asylum in Austria presumably due to the
newspaper articles provided and the “verification report”,
and the applicant was not. However, the Court reiterates that in a
situation such as the applicant’s it is its task to evaluate a
complaint under Article 3 of the Convention from the standpoint of
the time of the proceedings before it (see paragraph 58 above), and
not from the historical perspective of the domestic proceedings.
- The
Court shall therefore proceed to assess whether the applicant would
run today a real risk of suffering treatment contrary to Article 3 if
returned to Togo. Firstly, taking the applicant’s membership of
the opposition party UFC into account, the Court notes that according
to the more recent reports on Togo, the UFC won twenty-seven seats in
the Togolese parliament in the elections of 2007. After the
presidential elections in March 2010, the UFC split into two
factions, one of which decided to cooperate with the ruling RPT and
nominated seven ministers in the current cabinet.
- The
Court shall now turn to the events of summer 2008 in the camp for
flood victims. The applicant alleged that he had taken part in, and
maybe even initiated, demonstrations against the unequal distribution
of relief items, claiming that UFC party members were discriminated
against by soldiers and social workers responsible for the allocation
of the goods. Upon the protests, the applicant, and others, had been
threatened that “in 2010, there will be elections and then you
will see what will happen”. The applicant claimed that at the
time this statement amounted to a serious threat.
- In
the light of the subsequent developments, the widely acknowledged as
peaceful presidential elections in March 2010 and the participation
of the (remaining) UFC in the current cabinet, the Court finds that
even if the threat uttered by the soldiers in summer 2008 had carried
sincere weight as a sign of a real and individual risk of persecution
at the time, there is no indication that this is still the case.
- Finally,
the Court acknowledges that the reports consulted do not rule out the
occurrences of human rights violations such as arbitrary detention,
ill-treatment and a lack of respect for freedom of speech and freedom
of assembly on the part of the Togolese government. However, in the
light of the material before it, the Court cannot come to the
conclusion that the applicant would suffer a real and individual risk
of being subjected to treatment contrary to Article 3 of the
Convention if returned to Togo.
- Accordingly,
the applicant’s expulsion to Togo would not violate Article 3
of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant also complained of a lack of an effective remedy and relied
in this context on Article 13 of the Convention, which reads as
follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
- The
applicant alleged that since the Constitutional Court did not have
jurisdiction to set aside a decision in asylum proceedings on the
basis of a contestation of the evaluation of evidence, but only on
the basis of a violation of a right guaranteed by the constitution,
he was deprived of an effective remedy. Following an amendment of the
law, the applicant no longer had the possibility to lodge a complaint
with the Administrative Court, which could have determined whether
any rights guaranteed by the law had been violated in the course of
the asylum proceedings.
- The
Court notes that an asylum seeker in Austria has the right to
challenge a decision taken in his or her asylum proceedings as a
first step before the Asylum Court, which has jurisdiction over a
full appeal. Subsequently, a complaint against an appeal decision
rendered by the Asylum Court can be lodged with the Constitutional
Court, alleging a violation of rights guaranteed under the Austrian
Federal Constitution.
- The
Court reiterates that Article 13 guarantees the availability of a
remedy at national level to enforce the substance of the Convention
rights and freedoms in whatever form they may happen to be secured in
the domestic legal order. Its effect is thus to require the provision
of a domestic remedy allowing the competent “national
authority” both to deal with the substance of the relevant
Convention complaint and to grant appropriate relief (see, among
other authorities, Vilvarajah and Others, cited above, § 122).
- In
the present case the Court concludes that the applicant had access to
two levels of jurisdiction, which examined his arguable claim under
Article 3 of the Convention on its merits and conducted a
thorough assessment of whether there existed substantial grounds for
believing that there was a real risk of treatment contrary to Article
3 upon expulsion of the applicant to Togo (see, mutatis mutandis,
Diallo v. the Czech Republic, no. 20493/07, § 74, 23
June 2011). The applicant had further access to the Constitutional
Court, which, although it could not re-examine the assessment of
evidence by the Federal Asylum Office and/or the Asylum Court, could
still examine an alleged breach of a constitutional right. In this
context, the Court observes that as the Convention has the status of
a constitutional law in Austria, the applicant would have been able
to rely on the Convention guarantees even in proceedings before the
Constitutional Court.
- The
Court finds that the applicant had access to sufficiently effective
remedies in relation to his claims under Article 3 of the Convention.
Therefore, the Court concludes that this part of the application is
manifestly ill-founded and must be rejected in accordance with
Article 35 §§ 3 (a) and 4 of the Convention.
III. RULE 39 OF THE RULES OF COURT
- The
Court reiterates that, in accordance with Article 44 § 2 of the
Convention, the present judgment will not become final until (a) the
parties declare that they will not request that the case be referred
to the Grand Chamber; or (b) three months after the date of the
judgment, if reference of the case to the Grand Chamber has not been
requested; or (c) the Panel of the Grand Chamber rejects any request
for referral under Article 43 of the Convention.
- It
considers that the indication made to the Government under Rule 39
of the Rules of Court (see above § 4) must remain in force until
the present judgment becomes final or until the Court takes a further
decision in this connection (see operative part).
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning Article 3
admissible and the remainder of the application inadmissible;
- Holds that the implementation of the applicant’s
expulsion to Togo would not be a violation of Article 3 of the
Convention;
- Decides to continue to indicate to the
Government under Rule 39 of the Rules of Court that it is desirable
in the interests of the proper conduct of the proceedings not to
expel the applicant until such time as the present judgment becomes
final or until further order.
Done in English, and notified in writing on 10 May 2012, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Nina Vajić
Deputy Registrar President
