G. M. v. the Federal Republic of Germany



AS TO THE ADMISSIBILITY OF

Application No. 12437/86

by G.M.

against the Federal Republic of Germany

The European Commission of Human Rights sitting in private on

14 May 1987, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

G. TENEKIDES

S. TRECHSEL

B. KIERNAN

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Mrs G.H. THUNE

Sir Basil HALL

Mr. F. MARTINEZ

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 9 October 1986

by G.M. against the Federal Republic of Germany and

registered on 9 October 1986 under file No. 12437/86;

Having regard to:

- the first report of October 1986 provided for in Rule 40 of

the Rules of Procedure of the Commission;

- the Commission's decision of 10 October 1986 to give

precedence to the application under Rule 27 in fine of the

Commission's Rules of Procedure as well as to bring the

application to the notice of the parties and to invite them under

Rule 42 para. 2 (a) to submit further information on the case;

- the information submitted by the respondent Government on

26 November 1986;

- the second report of November 1986 provided for in Rule 40 of

the Rules of Procedure of the Commission;

- the Commission's decision of 3 December 1986 to request the

applicant to comment on the information submitted by the

Government;

- the applicant's comments of 23 December 1986 and

19 January 1987;

- the third report of January 1987 provided for in Rule 40 of

the Rules of Procedure of the Commission;

- the Commission's decision of 19 January 1987 to bring the

application to the notice of the respondent Government and to

invite them under Rule 42 para. 2 (b) of the Rules of Procedure

of the Commission to submit written observations on the

admissibility and merits of the application;

- the observations submitted by the respondent Government on

16 March 1987 and the observations in reply thereto submitted

by the applicant on 15 April 1987;

- the fourth report of April 1987 provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a stateless Palestinian from the Lebanon born

in 1926, is currently residing in Berlin. Before the Commission the

applicant is represented by Ms. Heidemarie Bischoff-Pflanz.

I.

The applicant states that she has no relatives left in the

Lebanon. There she resided in the Ain-el-helweh camp near Saida

where she has been registered since 1948. The house which she had

built was destroyed after the Israeli invasion in 1982. Thereafter,

she again lived in a tent. All her children had also lived in the

camp. No other possibilities of residence exist. In particular,

Palestinians are not allowed to live outside the camps or in another

camp where they are not registered and the UNRWA (United Nations

Relief and Works Agency for Palestine Refugees) cannot assure their

safety. In any event, the applicant has no relatives in other camps.

The Lebanese Government is also not in the position to afford her the

necessary protection since the country is currently being ruled by

various competing militias.

As regards the applicant's family, a blind daughter has been

abducted in the Lebanon and is since missing. One son, born in 1954,

was in Israeli captivity. When in 1986 he was brought to the Lebanese

border, he was killed, presumably by the Amal militia.

The son Ahmad Mohammad, born in 1962, lives in Berlin. He had

a residence permit which was valid until 10 February 1987. He is

almost blind and suffers from diabetes. His residence permit, which

was due to expire on 10 February 1987, has been extended.

The daughter Amné Mohammad, born in 1963, also lives, at a

different address, in Berlin. The applicant is currently residing

with this daughter, who has three children, born in 1981, 1982 and

1986 respectively, and does not possess a residence permit. As the

applicant points out, this daughter is married to a Palestinian though

the marriage document is not accepted by the Berlin authorities. She

is currently pregnant. While her application for asylum, filed in

1982, was pending, she was allowed to stay in Berlin. Thereafter, her

application was finally rejected. This daughter was convicted in 1984

of theft and assault and sentenced to a prison sentence of eight

months. As her youngest child, born in 1986, was ill, she and her

three children were not asked to leave the country immediately so that

medical treatment needed by the child could be completed. At present

her residence is being provisionally tolerated on account of the

changed situation in the Lebanon. The daughter was also sentenced on

15 May 1986 for theft to two months' imprisonment on probation.

The daughter Fatma Issa, born in 1956, who arrived in the

Federal Republic of Germany in 1979, lives with her husband, a

Palestinian, and three children in Wuppertal. In 1981 this daughter

withdrew her application for asylum. The family is permitted to

remain in the Federal Republic of Germany on humanitarian grounds.

The last decisions permitting this residence are valid until

25 May 1987.

The son Omar Mohammad, born in 1968 in Ain-e-helwe, came to

the Federal Republic of Germany in 1979 and voluntarily returned to

the Lebanon in 1983. He returned to West Berlin with his mother, the

applicant, on 2 February 1986. He now lives with the Issa family in

Wuppertal where he is involved in subsequent application proceedings

(Folgeantragsverfahren).

As far as the applicant, who is illiterate, can remember, the

further family situation is as follows:

The son Kerim Mohammad, born in 1942, has been living in

Berlin since 1973. He is married with a Palestinian and has eight

children. His request for asylum has been rejected and his

expulsion is temporarily suspended (Duldung). He intends to apply

again for permission to stay.

The daughter Faouzie Al Tahar, born in 1948, lives with her

husband, a Palestinian, and five children in Berlin. Her expulsion has

also been temporarily suspended.

The daughter Fathiye Al Taha, born in 1944, lives with her

husband, a Palestinian, and eight children in Pirmasens in Germany.

Her expulsion has been temporarily suspended.

The daughter Souad Khalil Ayyache, born in 1956, lives with

her husband, a Palestinian, and four children, at a different address

in Pirmasens. Her expulsion has also been temporarily suspended.

II.

The applicant arrived for the first time in West Berlin on

28 July 1977 and applied for political asylum on 3 August 1977. She

withdrew that application on 12 September 1977 and returned to the

Lebanon on 15 September 1977. Later, when making her second

application for asylum, in November 1978, the applicant stated that in

1977 she had been in Berlin on a visit.

On 10 November 1978, she returned to West Berlin, where she

made a second application for asylum on 23 November 1978. She then

returned to the Lebanon on an unknown date, travelling again to West

Berlin on 23 September 1979, the validity of her travel document

having been extended in Beirut on 11 September 1979. On 23 May 1980

the Federal Office responsible for the Recognition of Foreign Refugees

(Bundesamt für die Anerkennung ausländischer Flüchtlinge) rejected her

application for asylum on the following grounds:

"The applicant has not provided sufficient evidence in support

of her case for asylum. She did not attend the preliminary

examination at the Federal Office, despite having been

properly summoned and told of the consequences of failure to

attend. ... The danger to her does not stem from persecution

by Lebanese Government authorities, but from the existence of

a virtual civil war in the Lebanon."

On 26 September 1980, the applicant was asked to leave the

country. She appealed against both this and the decision of

23 May 1980. However, on 9 February 1983, she withdrew her application

for asylum and declared that he would voluntarily return to the

Lebanon if the Berlin Welfare Office (Sozialhilfe) would meet the cost

of her journey. She returned to the Lebanon the same day.

On 12 October 1983, the applicant again arrived in West Berlin,

making her third request for asylum on 14 October 1983. She withdrew

that request on 6 April 1984 and voluntarily left for Damascus (Syria)

with her son Omar on 29 April 1984. The authorities had not at that

stage requested her to leave the country. In Damascus, the applicant

had two sisters, one of whom has meanwhile died. Thereafter, she

spent some time living with one of her sons and some time in hospital

in Beirut.

It appears that the applicant's last residence in the Lebanon

after her return in 1984 was again in the Ain-el-helweh camp.

The applicant realised that her son would not be released.

The situation in the Ain-el-helweh camp became increasingly dangerous

when it was bombed by the Israeli air force and attacked by the Amal

militia. The latter apparently control the camp and have set

themselves the aim to drive away the Palestinians. The inhabitants of

the camp cannot therefore rely on the protection by the Amal militia.

In order to save her life and her bodily integrity the

applicant again returned to Berlin. With the help of friends she

managed to undertake the dangerous voyage to Beirut during which she

had constantly to undergo controls by the various militia.

III.

On 2 February 1986, the applicant and her son Omar again

arrived in West Berlin, and on 5 February 1986 she made her fourth

request for political asylum.

On 17 April 1986, a hearing took place before the Berlin

Aliens' Authority, which rejected her application for asylum in

accordance with Section 14(1) and Section 10(1) and (2) of the Asylum

Procedure Act (Asylverfahrensgesetz). She was also requested to leave

the country and threatened with deportation.

Her subsequent action was rejected by the Berlin

Administrative Court (Verwaltungsgericht) on 7 October 1986. Already

on 27 May 1986 the Berlin Administrative Court and, on 17 July 1986,

the Berlin Administrative Court of Appeal (Oberverwaltungsgericht) had

decided not to endow the action with suspensive effect.

On 7 October 1986 the applicant underwent an official medical

examination in order to assess her fitness to travel. The respective

police doctor concluded that she was in a position to travel to the

Lebanon by air, provided that she was accompanied.

However, in view of the situation in the Lebanon the West

Berlin authorities have meanwhile decided for an indefinite period not

to deport Palestinians to the Lebanon. The applicant falls within the

scope of this decision, and her stay is currently being tolerated.

COMPLAINTS

The applicant originally complained under Article 3 of the

Convention of the proposed execution of the expulsion order. She

submitted that the exact date would be fixed once she had been

arrested for this purpose, and that this measure was imminent. The

applicant would have no other choice than to attempt to reach the

Ain-el-helweh camp where she would again be subjected to the above

mentioned dangers. Thus, in July 1986 the Israeli air force again

bombed the camp which continues to be surrounded by the Amal militia.

As a result, it is not the Lebanese Government but autonomous groups

which will subject her to inhuman treatment contrary to Article 3 of

the Convention.

In support of her application the applicant has submitted,

inter alia, a letter of the deputy representative of the Branch Office

in the Federal Republic of Germany of the United Nations High

Commissioner for Refugees of 13 August 1986. Therein, the deputy

representative urgently requests the Regional Inhabitants'

Registration Office to reconsider its decision to expel the applicant,

who has "apparently been recognised as a UNRWA-refugee", in view of

the special circumstances of the case, the situation in the Lebanon

and the existing dangers to body, life and freedom of the applicant.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced by telex on 9 October 1986 and

registered on the same day.

On 10 October 1986 the Commission, while not applying Rule 36

of the Commission's Rules of Procedure, decided to request the parties

to submit further information on the case under Rule 42 (2)(a) of the

Rules of Procedure.

On 14 October 1986 the Agent of the respondent Government

informed the Commission of her Government's position in respect of the

applicant's representation.

On 16 October 1986 the applicant submitted her reply to the

questions put to her under Rule 42 (2)(a). On 27 October 1986 the

applicant commented on the Government's telex of 14 October 1986.

The Government's information dated 26 November 1986 was

received on 1 December 1986.

On 3 December 1986 the Commission decided to request the

applicant to comment on the information submitted by the Government.

The applicant submitted her comments on 23 December 1983.

On 19 January 1987 the Commission decided to bring the

application to the notice of the respondent Government and to invite

them under Rule 42 para. 2 (b) of the Rules of Procedure of the

Commission to submit written observations on the admissibility and

merits of the application.

The Government's observations were submitted on 16 March 1987

and the applicant's observations in reply on 15 April 1987.

SUBMISSIONS OF THE PARTIES

A. The respondent Government

1 The Government submit that the applicant is a person who has

been shuttling to and from her homeland or her previous place of

residence and has therefore herself shown that she is not subject to

any persecution there.

In principle, the Land of Berlin examines every case

individually before deportation is ordered and enforced. The

situation in the Lebanon is under constant study. Accordingly, the

only people deported to the Lebanon are those for whom any dangers,

which exist to their lives and freedom, are not appreciably greater

than those faced by everyone in the Lebanon or by all members of the

ethnic or religious group to which the foreign deportee belongs.

Nobody is deported to areas of fighting.

Insofar as the applicant is represented before the Commission

by the chairperson of the Alternative List Fraction of the Berlin

Diet, the respondent Government regard it as essential that the

applicant is represented by a lawyer according to the laws of the

Federal Republic of Germany.

2 In the Government's view it need not be decided whether the

situation in certain regions of the Lebanon, which is similar to that

prevailing in a civil war, and the circumstances in which Palestinians

are living there, can be regarded as raising an issue under Article 3

of the Convention. The competent Berlin authorities as well as the

other Land Governments have on humanitarian grounds imposed a stop on

deportation owing to the present circumstances in the Lebanon. In

other words, in view of the changed situation in the Lebanon, it has

been decided for an indefinite period not to deport Palestinians to

the Lebanon. According to a decision of the Minister for Home Affairs

of the Land Berlin this now includes persons who have committed a

criminal offence as well as the so-called "shuttlers". Both groups

were previously excluded from the suspension of deportation. The

residence of such persons is now being tolerated until further notice.

The applicant falls within the scope of this decision.

Regardless of the place to which the applicant would go if she

returned to the Lebanon, she is in any case in no danger of being

treated in a manner incompatible with Article 3 of the Convention

until the situation in the Lebanon improves. Rather, her further stay

in West Berlin will continue to be tolerated.

A renewed request to leave the country and its possible

execution can only be contemplated in an indeterminate future when the

situation in the Lebanon has improved and the applicant can return

without danger to her life or physical security. Against such an

administrative order, which will be made on the basis of an

examination of the individual circumstances, the applicant will be

able to avail herself of the usual legal remedies.

Her application on the basis of Article 3 of the Convention is

therefore manifestly ill-founded.

3 The Government further observe that none of the applicant's

above-mentioned relatives have been recognised as entitled to

political asylum in the Federal Republic of Germany. They are only

tolerated there on humanitarian grounds owing to the situation in the

Lebanon. It may therefore be assumed that when that situation

improves, they, too, will have to return. In any event, they are free

to leave the country voluntarily with the applicant if they so desire.

As a result, regardless of whether the applicant at the moment still

has close relatives in the Lebanon, she would not have to live alone

in the Lebanon separated from all her relatives if she returned there

in the future.

The application is therefore also on this ground manifestly

ill-founded.

B. The applicant

1 The applicant submits that an individual examination by the

authorities of cases like the present one does not take place. It is

only routinely (formularmässig) determined that the person concerned

is a so-called shuttler. Three Palestinians are mentioned as examples

of persons who have nevertheless been expelled to Beirut in November

1986.

As regards the issue of representation, the applicant submits

that Article 26 para. 2 of the Commission's Rules of Procedure permits

the representation of applicants also by persons other than lawyers.

2 The applicant submits further that, even if her stay in West

Berlin is now being tolerated, at the moment for a further three

months, the original deportation order has not been cancelled and can

at any time be executed. The Senator for the Interior has ordered in

respect of deportation warnings which have already been issued that

they must be cancelled if administrative proceedings are pending.

The present application continues to be relevant since Article

3 of the Convention grants a right to the applicant not to be deported

to the Lebanon, and the Government have only submitted that her stay

will be tolerated on humanitarian grounds. Moreover, the applicant

submits a report of the organisation "medico international" according

to which there may be a danger of inhuman treatment and torture for

Palestinians in the Lebanon also in areas where there is no acute

fighting. For instance, the applicant's daughter was abducted at a

time when there was an official armistice.

THE LAW

As a preliminary point the Commission notes that the

respondent Government have called in question the validity of the

applicant's representation before the Commission in as much as her

representative is not a lawyer. The applicant submits that persons

other than lawyers may represent applicants under Rule 26 of the

Commission's Rules of Procedure which states:

"Any such applicant may appoint, and be represented in

proceedings before the Commission by, a lawyer or any

other person, resident in a Convention country, unless

the Commission at any stage decides otherwise."

However, the Commission finds it unnecessary to resolve this

issue since the application is in any event manifestly ill-founded for

the following reasons.

The applicant has complained of her proposed expulsion to the

Lebanon. She submits that she has no other choice than to live in

the Ain-el-helweh camp where she is registered. However, that camp is

subjected to attacks by the Israeli air force and the Amal militia

surrounding the camp. Her expulsion to the Lebanon would thus amount to

inhuman treatment contrary to Article 3 (Art. 3) of the Convention. If the

applicant's stay in West Berlin is currently being tolerated on humanitarian

grounds, this does not mean that the deportation order concerned could not at

any time be executed.

The Government submit that the competent Berlin authorities

have decided on humanitarian grounds, owing to the present

circumstances in the Lebanon, for an indefinite period not to deport

Palestinians to the Lebanon. This also includes persons who have

committed a criminal offence as well as the so-called "shuttlers".

Accordingly, the applicant is in no danger of being treated in a

manner incompatible with Article 3 (Art. 3) of the Convention until the

situation in the Lebanon improves. Her further stay in West Berlin

will continue to be tolerated. If and when a new administrative order

of deportation should be made in an indeterminate future, the

applicant will be able to avail herself of the usual legal remedies.

Article 3 (Art. 3) of the Convention forbids, inter alia, inhuman or

degrading treatment, and the Commission has consistently held that the

expulsion or extradition of a person could, in certain exceptional

circumstances, involve a violation of Article 3 (Art. 3) where there is serious

reason to believe that the person to be expelled or extradited will be

subjected to treatment prohibited by the Article in the receiving country (see

No. 8581/79, Kilic v. the United Kingdom, Dec. 6.3.80, D.R. 29 p. 48).

In the present case the Commission notes that the dangers

alleged by the applicant upon her return to the Lebanon, arise, in

part, not from Government authorities but from autonomous groups. The

Commission recalls its previous case-law in which it left open the

question whether, in examining a case of this kind from the standpoint of

Article 3 (Art. 3), it may take into account an alleged danger arising, not

from public authorities, but from autonomous groups (see No. 8581/79, ibid.).

Even assuming that in the present case an alleged danger

arising from autonomous groups may be taken into account, the

Commission observes that in view of the situation in the Lebanon the

West Berlin authorities have decided, for an indefinite period of

time, not to deport Palestinians to the Lebanon, and the applicant's

stay in West Berlin is currently being tolerated.

This information has been confirmed by the applicant.

However, the applicant has called in question the Government's further

submissions according to which, should she be requested to leave the

country in the indeterminate future, she may again avail herself of

the normal domestic remedies. The applicant contends in particular

that the original deportation warning may at any time be executed.

The Commission observes, on the one hand, that the applicant

has not substantiated her allegation that the original deportation

order may at any time again be executed. She has in particular not

shown that, should her toleration (Duldung) be repealed, she would be

unable to avail herself of the normal remedies under German law.

On the other hand, the Commission is satisfied that the

assurances of the respondent Government provide sufficient guarantee

that the applicant, whose stay in the Federal Republic of Germany is

currently being tolerated, can again avail herself of remedies under

German law, should her toleration be repealed.

As a result, there is at present no serious reason to believe

that the applicant will be subjected to treatment prohibited in

Article 3 (Art. 3) of the Convention. In these circumstances, and in

particular in view of the Government's assurances, the Commission

considers that the applicant can no longer claim to be a victim of the

alleged violation within the meaning of Article 25 (Art. 25) of the

Convention. It follows that the application is manifestly ill-founded

within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)