In the case of Ahmed v. Austria (1),

        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 (2), as a Chamber composed of
the following judges:

        Mr  R. Bernhardt, President,
        Mr  Thór Vilhjálmsson,
        Mr  F. Matscher,
        Mr  C. Russo,
        Mr  A. Spielmann,
        Mr  L. Wildhaber,
        Mr  D. Gotchev,
        Mr  K. Jungwiert,
        Mr  P. Kuris,

and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy

        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:
Notes by the Registrar

1.  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.

2.  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).


1.      The case was referred to the Court by the European Commission
of Human Rights ("the Commission") on 11 September 1995, within the
three-month period laid down by Article 32 para. 1 and Article 47 of
the Convention (art. 32-1, art. 47).  It originated in an application
(no. 25964/94) against the Republic of Austria lodged with the
Commission under Article 25 (art. 25) by a Somali national,
Mr Sharif Hussein Ahmed, on 13 December 1994.

        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).

2.      In response to the enquiry made in accordance with Rule 35
para. 3 (d) of Rules of Court B, the applicant stated that he wished
to take part in the proceedings and designated the lawyer who would
represent him (Rule 31).  On 23 May 1996 the President of the Chamber
gave the lawyer leave to use the German language in both the written
and the oral proceedings (Rule 28 para. 3).

3.      The Chamber to be constituted included ex officio
Mr F. Matscher, the elected judge of Austrian nationality (Article 43
of the Convention) (art. 43), and Mr R. Bernhardt, the Vice-President
of the Court (Rule 21 para. 4 (b)).  On 29 September 1995, in the
presence of the Registrar, the President of the Court, Mr R. Ryssdal,
drew by lot the names of the other seven members, namely
Mr Thór Vilhjálmsson, Mr A. Spielmann, Mr F. Bigi, Mr L. Wildhaber,
Mr D. Gotchev, Mr K. Jungwiert and Mr P. Kuris (Article 43 in fine of
the Convention and Rule 21 para. 5) (art. 43).  Subsequently
Mr C. Russo, substitute judge, replaced Mr Bigi, who had died (Rule 22
paras. 1 and 2 and Rule 24 para. 1).

4.      As President of the Chamber (Rule 21 para. 6), Mr Bernhardt,
acting through the Registrar, consulted the Agent of the
Austrian Government ("the Government"), the applicant's lawyer and the
Delegate of the Commission on the organisation of the proceedings
(Rules 39 para. 1 and 40).  Pursuant to the order made in consequence,
the Registrar received the Government's and the applicant's memorials
on 23 and 26 April 1996 respectively.  On 10 June 1996 the Commission
supplied the Registrar with various documents that he had requested on
the President's instructions.

5.      On 15 December 1994 the President of the Commission had
indicated to the Austrian Government, under Rule 36 of the Commission's
Rules of Procedure, that it was desirable, in the interests of the
parties and the proper conduct of the proceedings, not to deport the
applicant before the end of the Commission's next session.  The
Commission extended the application of Rule 36 several times.  On
2 October 1996 the Deputy Registrar of the Court informed the
Government that the above measure remained recommended under Rule 38
para. 2 of Rules of Court B.

6.      On 28 February 1996 the Government had asked the Court to
strike the case out of its list, on the ground that on
22 November 1995, when the applicant obtained a stay of his expulsion
for a renewable period of one year (see paragraph 23 below), he had
lost the status of victim within the meaning of Article 25 para. 1 of
the Convention (art. 25-1).  In letters received at the registry on
22 and 25 March 1996 respectively the applicant and the Delegate of the
Commission, who had been consulted in accordance with Rule 51 para. 2,
asked the Court not to allow this application.  The Delegate of the
Commission expressed himself as follows:

        "...  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.

7.      In accordance with the President's decision, the hearing took
place in public in the Human Rights Building, Strasbourg, on
25 June 1996.  The Court had held a preparatory meeting beforehand.

        There appeared before the Court:

(a) 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,
        Federal Chancellery,
    Mrs E. Bertagnoli, International Law Department,
        Federal Ministry of Foreign Affairs,                Advisers;

(b) for the Commission

    Mr  J.-C. Geus,                                         Delegate;

(c) 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.


I.      Circumstances of the case

    A.  Recognition and forfeiture of refugee status

8.      Mr Ahmed, a Somali citizen born in 1963, currently lives in
Graz (Styria).

9.      On 10 October 1990 he left Somalia.  He reached Vienna Airport
on 30 October via Syria and the Netherlands.

10.     He requested refugee status on 4 November 1990 and was
interviewed on 27 November 1990 by the
Lower Austria Public Security Authority (Sicherheitsdirektion).  On
that occasion he stated that his uncle had been an active member of the
United Somali Congress ("the USC") and that his father and his brother,
though not members of the USC, had assisted his uncle and been executed
on that account in May 1990.  Since then he and his family had been
suspected of belonging to the USC and taking part in acts of rebellion.
His car had been confiscated and he had been assaulted, as was
evidenced by a still-visible scar on his left forearm.  He had left
Somalia through fear of being arrested and executed.

11.     On 19 April 1991 the Styria Public Security Authority rejected
the application, but on appeal by the applicant the
Minister of the Interior reversed this decision on 15 May 1992 and
granted refugee status within the meaning of the Geneva Convention
(see paragraph 24 below).  He considered that Mr Ahmed could not be
required to return to his homeland, regard being had to his activities
in an opposition group and the general situation in the country
concerned.  His statements, which appeared credible, gave grounds to
fear that, in the event of his return to Somalia, he would suffer
persecution there within the meaning of the Geneva Convention.

12.     On 15 July 1994 the Federal Refugee Office (Bundesasylamt) in
Graz, acting pursuant to section 5 (1) (3) of the Right to Asylum Act
(see paragraph 25 below), ordered the forfeiture of the applicant's
refugee status.  This decision followed a judgment of 25 August 1993
in which the Graz Regional Court (Landesgericht) sentenced the
applicant to two and a half years' imprisonment for attempted robbery
(versuchter Raub): together with an accomplice, Mr Ahmed had struck a
passer-by in the face and attempted to steal his wallet.

13.     On 12 September 1994 the Minister of the Interior dismissed an
appeal by the applicant.  He pointed out that under section 5 (1) (3)
of the Right to Asylum Act a refugee lost refugee status if he
committed a "particularly serious crime" within the meaning of
Article 33 para. 2 of the Geneva Convention.  Section 37 (4) of the
Aliens Act (see paragraph 28 below) showed that the legislature
considered that expression to mean any offence punishable by a term of
imprisonment exceeding five years.  Since attempted robbery was
punishable by up to ten years' imprisonment, the applicant had
forfeited his refugee status and any other consideration relating to
the correctness of his conviction or the situation in Somalia was

14.     Mr Ahmed contested this decision in the Administrative Court
(Verwaltungsgerichtshof), which set it aside on 2 February 1995.  The
Administrative Court held that the applicant's conviction for a
particularly serious crime had only evidential relevance; it could not
be deduced therefrom that, ipso facto, the applicant constituted a
danger to Austrian society within the meaning of Article 33 para. 2 of
the Geneva Convention.  Such a conclusion, which suspended the
protection (Schutzzweck) afforded by that Convention in spite of the
continuing risk of persecution, could only be reached after the
interests of the refugee and those of the host State had first been
weighed against each other, the result being unfavourable to the
former.  The measure involved such a restriction of the refugee's
personal rights (persönliche Rechtssphäre) that it had to be really
necessary for one of the reasons set out in the provision concerned.
In order to determine whether that was so, it was necessary to assess
the future conduct of the person concerned, but in the present case the
Minister had neglected to do so.

15.     On 10 April 1995 the Minister of the Interior again ordered the
forfeiture of Mr Ahmed's refugee status.  Referring to the
Administrative Court's decision (see paragraph 14 above), he first
noted that the applicant had been found guilty of attempted robbery,
a particularly serious crime within the meaning of Article 33 para. 2
of the Geneva Convention.  He went on to mention other measures taken
against the applicant, namely a suspended sentence of three months'
imprisonment and a fine of 500 Austrian schillings (ATS) for
criminal damage (Sachbeschädigung) in 1991, a fine of ATS 1,000 for
threatening behaviour (ungestümes Benehmen) in a police station in 1992
and a complaint by the police to the Graz public prosecutor alleging
criminal damage in the same year.  Although, taken separately, these
offences did not represent any danger to society, taken together they
nevertheless revealed a clear tendency to aggression.  It could not
therefore be excluded that the applicant might commit further offences
in future, which made him a danger to society.

16.     On 9 November 1995 the Administrative Court upheld the above
decision, holding in particular that in carrying out an assessment of
the applicant's dangerousness (Gefährlichkeitsprognose) the Minister
had validly relied on events prior to his imprisonment.

    B.  The expulsion proceedings

17.     In the meantime, on 14 November 1994, the
Graz Federal Police Authority (Bundespolizeidirektion) had issued an
indefinite exclusion order (unbefristetes Aufenthaltsverbot) against
the applicant under section 18 (1) and (2) of the Aliens Act
(see paragraph 26 below) and ordered that after serving his sentence
he was to be detained with a view to his expulsion (Schubhaft).  It
noted that in view of the applicant's convictions and the seriousness
of one of the offences, namely attempted robbery, it could not be
excluded that he would continue to offend.  Therefore, in order to
preserve public peace, order and security, and to prevent Mr Ahmed from
committing crimes within the meaning of Article 8 para. 2 (art. 8-2)
of the European Convention on Human Rights, it appeared to be essential
to deport him, even though that measure incontestably constituted an
interference (Eingriff) in his private life.

18.     The applicant appealed against the above decision on
30 November 1994, asking the authorities to find, under section 54 of
the Aliens Act, that his expulsion would contravene section 37 of the
same Act (see paragraphs 29 and 28 below).  On 10 December 1994 the
Graz Public Security Authority dismissed the appeal, but reduced the
period specified in the exclusion order against him to ten years.  It
considered that the Federal Police Authority had correctly weighed the
conflicting interests and had had valid reasons to form the view that
revoking the expulsion would have much more serious detrimental effects
on the community than on Mr Ahmed.  It further noted that the applicant
could not yet be regarded as integrated into Austrian society, as he
had lived there for only four years and had been in prison since
March 1993.  Nor did he have family or other links with the country.
As for his occupational activities, these did not require any
particular qualification and could therefore also be carried on abroad.
Moreover, the applicant had been unemployed at the time of his arrest.

19.     After being released on parole (bedingte Entlassung), the
applicant was taken into custody at the Graz police headquarters on
14 December 1994 with a view to his expulsion.

20.     On 23 January 1995 the Styria Independent
Administrative Tribunal (Unabhängiger Verwaltungssenat) upheld an
appeal by Mr Ahmed against the above measure (Schubhaftbeschwerde) on
the ground that, as the European Commission of Human Rights had
extended the provisional measure indicated under Rule 36 of its
Rules of Procedure (see paragraph 5 above), deportation of the
applicant before expiry of the two-month maximum period for detention
of that type (section 48 of the Aliens Act) seemed to be out of the
question.  The applicant was therefore released.

21.     On 26 April 1995 Mr Ahmed appeared before the
Federal Refugee Office with a view to the possible application of
section 37 of the Aliens Act (see paragraph 28 below).  He asserted
that the situation in Somalia had deteriorated since his departure in
1990.  He was a member of the Hawiye clan, which at that time was being
persecuted, especially by the generals in power.  His clan, who lived
900 kilometres to the north of Mogadishu, had supported General Aïdid,
but had later withdrawn that support and since then had been on the run
from him as well.  He could therefore not return to the country without
risking his life.

        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.

22.     On 4 May 1995 the Graz Federal Police Authority dismissed the
applicant's appeal of 30 November 1994 (see paragraph 18 above) on the
ground that there were no solid reasons to believe that on his return
to Somalia he might suffer treatment prohibited by section 37 (1) and
(2) of the Aliens Act.  According to the established case-law of the
Administrative Court, section 37 (1) contemplated only dangers and
threats emanating from a State.  Since the overthrow of
President Siyad Barre a civil war had been raging in Somalia and all
State authority (staatliche Gewalt) had disappeared.  Moreover, there
was nothing to suggest that the applicant might be persecuted in
Somalia for one of the reasons set out in section 37 (2).  Lastly,
there would not be any breach of Article 2 para. 1 (art. 2-1) of the
European Convention on Human Rights either, since under section 37 the
mere fact that on returning to his home country an alien might be
risking his life was not a sufficient bar to expulsion.

23.     On appeal by the applicant, the
Styria Public Security Authority set aside the above decision on
22 May 1995.  Thereupon the Graz Federal Police Authority found on
31 October 1995 that in Somalia Mr Ahmed would be at risk of
persecution for one of the reasons set out in section 37 of the
Aliens Act.  On 22 November 1995 it accordingly stayed his expulsion
for a renewable period of one year.

II.     Relevant international and domestic law

    A.  The Geneva Convention of 28 July 1951 relating to the Status
        of Refugees

24.     Under Article 1 of the Geneva Convention of 28 July 1951, as
amended by the Protocol of 31 January 1967, a "refugee" is defined as
any person who "owing to well-founded fear of being persecuted for
reasons of race, religion, nationality, membership of a particular
social group or political opinion, is outside the country of his
nationality and is unable or, owing to such fear, is unwilling to avail
himself of the protection of that country".

        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

25.     Under section 5 (1) (3) of the 1991 Right to Asylum Act
(Asylgesetz), a refugee loses refugee status if the competent authority
finds that the conditions set out in Article 33 para. 2 of the
Geneva Convention relating to the Status of Refugees (see paragraph 24
above) are satisfied.

        2. The Aliens Act

26.     Section 18 of the 1992 Aliens Act (Fremdengesetz) governs
exclusion orders (Aufenthaltsverbot).  The first paragraph provides
that an alien's exclusion must be ordered if certain facts give reason
to believe that his presence in the country constitutes a danger to
public peace, order and security or is incompatible with other
public interests referred to in Article 8 para. 2 (art. 8-2) of the
European Convention on Human Rights.  Among the facts which are
relevant for the purposes of section 18, subsection 2 mentions a final
decision by an Austrian court imposing on the refugee concerned a
custodial sentence of more than three months.

27.     The first sentence of section 36 (2) provides for expulsion to
be stayed for a renewable period of up to one year at the request of
the person concerned, or by the authorities of their own motion, where
expulsion is prohibited under section 37 or appears to be impossible
in practice.

28.     Section 37 forbids the expulsion of an alien to a State where
there are solid reasons (stichhaltige Gründe) to believe:

         - 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).

29.     Under section 54 the competent authority has to determine
(Bescheid), at the alien's request (Antrag), whether there are solid
reasons to believe that he would be at risk, within the meaning of
section 37 (1) or (2), in a particular State named by him
(subsection 1).

        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).


30.     In his application to the Commission (no. 25964/94) of
13 December 1994 Mr Ahmed alleged that his expulsion to Somalia would
expose him to a serious risk of being subjected to treatment contrary
to Article 3 of the Convention (art. 3) there.

31.     The Commission declared the application admissible on
2 March 1995.  In its report of 5 July 1995 (Article 31) (art. 31), it
expressed the unanimous opinion that there would be a violation of
Article 3 (art. 3) if the applicant were to be deported to Somalia.
The full text of the Commission's opinion is reproduced as an annex to
this judgment (1).
Note by the Registrar

1.  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.


32.     In their memorial the Government asked the Court to hold that
there had been no breach of Article 3 (art. 3).



33.     In his memorial Mr Ahmed requested the Court to consider the
facts of the case not only under Article 3 of the Convention (art. 3)
but also under Articles 5 and 13 (art. 5, art. 13).

34.     The Court notes that no complaint under Articles 5 and 13
(art. 5, art. 13) was submitted in the application to the Commission.
As the compass of the case before it is delimited by the Commission's
decision on admissibility (see, among many other authorities, the
Masson and Van Zon v. the Netherlands judgment of 28 September 1995,
Series A no. 327-A, p. 16, para. 40), it cannot entertain such


35.     The applicant alleged that, if he were to be deported to
Somalia, he would certainly be subjected there to treatment prohibited
by Article 3 of the Convention (art. 3), which provides:

        "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.

36.     The Commission accepted the above argument in substance.  It
noted in particular that in support of their decision to strip the
applicant of his refugee status the national authorities had not
mentioned any new factor tending to show that the risk he would run in
Somalia had disappeared.

37.     The Government too considered that Mr Ahmed was at risk of
being subjected in Somalia to treatment incompatible with Article 3
(art. 3).  However, they submitted that they had complied with the
requirements of that provision (art. 3) to the extent that
Austrian legislation permitted.  As the deportation order had become
final, it could no longer be deferred.  That meant that, as
Austrian law stood, the stay of execution of the measure against the
applicant was the only means whereby he could lawfully remain in
Austrian territory.  Moreover, by submitting an application under
section 36 (2) of the Aliens Act (see paragraph 27 above), Mr Ahmed
would be entitled to have the stay extended for as long as the danger
in Somalia persisted.  If that application were rejected, he could
still apply to the Constitutional Court and the Administrative Court.

38.     The Court reiterates in the first place that Contracting States
have the right, as a matter of well-established international law and
subject to their treaty obligations including the Convention, to
control the entry, residence and expulsion of aliens.  It also notes
that the right to political asylum is not contained in either the
Convention or its Protocols (see the Vilvarajah and Others
v. the United Kingdom judgment of 30 October 1991, Series A no. 215,
p. 34, para. 102).

39.     However, the expulsion of an alien by a Contracting State may
give rise to an issue under Article 3 (art. 3), and hence engage the
responsibility of that 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 (art. 3) in the receiving country.  In these
circumstances, Article 3 (art. 3) implies the obligation not to expel
the person in question to that country (see the Soering
v. the United Kingdom judgment of 7 July 1989, Series A no. 161, p. 35,
paras. 90-91; the Cruz Varas and Others v. Sweden judgment of
20 March 1991, Series A no. 201, p. 28, paras. 69-70; the
above-mentioned Vilvarajah and Others judgment, p. 34, para. 103; and
the Chahal v. the United Kingdom judgment of 15 November 1996, Reports
of Judgments and Decisions 1996-V, p. 1853, paras. 73-74).

40.     The Court further reiterates that Article 3 (art. 3), which
enshrines one of the fundamental values of democratic societies
(see the above-mentioned Soering judgment, p. 34, para. 88), prohibits
in absolute terms torture or inhuman or degrading treatment or
punishment, irrespective of the victim's conduct.  Unlike most of the
substantive clauses of the Convention and of Protocols Nos. 1 and 4
(P1, P4), Article 3 (art. 3) makes no provision for exceptions and no
derogation from it is permissible under Article 15 (art. 15) even in
the event of a public emergency threatening the life of the nation
(see the Ireland v. the United Kingdom judgment of 18 January 1978,
Series A no. 25, p. 65, para. 163; the Tomasi v. France judgment of
27 August 1992, Series A no. 241-A, p. 42, para. 115; and the
above-mentioned Chahal judgment, p. 1855, para. 79).

41.     The above principle is equally valid when issues under
Article 3 (art. 3) arise in expulsion cases.  Accordingly, the
activities of the individual in question, however undesirable or
dangerous, cannot be a material consideration.  The protection afforded
by Article 3 (art. 3) is thus wider than that provided by Article 33
of the 1951 Convention relating to the Status of Refugees
(see paragraph 24 above and the above-mentioned Chahal judgment,
p. 1855, para. 80).

42.     Like the Commission, the Court attaches particular weight to
the fact that on 15 May 1992 the Austrian Minister of the Interior
granted the applicant refugee status within the meaning of the
Geneva Convention (see paragraphs 11 and 24 above), finding credible
his allegations that his activities in an opposition group and the
general situation in Somalia gave grounds to fear that, if he returned
there, he would be subjected to persecution (see paragraph 11 above).
Although the applicant lost his refugee status two years later, this
was solely due to his criminal conviction; the consequences of
expulsion for the applicant were not taken into account
(see paragraph 12 above).

43.     However, in order to assess the risks in the case of an
expulsion that has not yet taken place, the material point in time must
be that of the Court's consideration of the case.  Although the
historical position is of interest in so far as it may shed light on
the current situation and its likely evolution, it is the present
conditions which are decisive (see the above-mentioned Chahal judgment,
p. 1856, para. 86).

44.     With regard to the present situation in Somalia, the Court
bases its assessment on the findings of the Commission, to which, under
the Convention, the tasks of establishing and verifying the facts are
primarily assigned (see, inter alia, the above-mentioned
Cruz Varas and Others judgment, p. 29, para. 74).  In its report of
5 July 1995 the Commission noted that the situation in Somalia had
changed hardly at all since 1992.  The country was still in a state of
civil war and fighting was going on between a number of clans vying
with each other for control of the country.  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.

45.     Before the Court the Government did not contest the applicant's
submission that there was no observable improvement of the situation
in his country.  On the contrary, they explained that the
Austrian authorities had decided to stay execution of the expulsion in
issue because they too considered that, as matters stood, Mr Ahmed
could not return to Somalia without being exposed to the risk of
treatment contrary to Article 3 (art. 3).

46.     That being the case, the Court reaches the same conclusion,
which moreover is not contradicted by any material in the file or the
information supplied by those who appeared at the hearing; nor, in view
of the absolute nature of Article 3 (art. 3), is that conclusion
invalidated by the applicant's criminal conviction or the current lack
of State authority in Somalia.

47.     It follows that the applicant's deportation to Somalia would
breach Article 3 of the Convention (art. 3) for as long as he faces a
serious risk of being subjected there to torture or inhuman or
degrading treatment.


48.     Article 50 of the Convention (art. 50) provides:

        "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.

49.     No breach of Article 3 (art. 3) has as yet occurred.
Nevertheless, the Court having found that the decision to deport
Mr Ahmed would, if implemented, give rise to such a breach, Article 50
(art. 50) must be taken as applying to the facts of the present case
(see, mutatis mutandis, the Beldjoudi v. France judgment of
26 March 1992, Series A no. 234-A, p. 29, para. 84).

    A.  Damage

50.     Mr Ahmed claimed 16,250 Austrian schillings (ATS) as
compensation for loss of earnings between 14 December 1994 and
23 March 1995, during which period, he submitted, his imprisonment had
been unlawful.

        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.

51.     The applicant further claimed compensation for non-pecuniary
damage in a sum which he asked the Court to determine.

        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

52.     In respect of costs and expenses incurred for the proceedings
brought in the Austrian courts and later before the Convention
institutions, Mr Ahmed claimed ATS 240,000, including ATS 100,000 for
his legal fees incurred in Strasbourg.

        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.

53.     Making an assessment on an equitable basis, the Court awards
the applicant ATS 150,000 under this head.

    C.  Default interest

54.     According to the information available to the Court, the
statutory rate of interest applicable in Austria at the date of
adoption of the present judgment is 4% per annum.


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.

Signed: Rudolf BERNHARDT

Signed: Herbert PETZOLD