SECOND SECTION

DECISION

Application no. 3314/02 
by Mohamed BILASI-ASHRI 
against Austria

The European Court of Human Rights (Second Section), sitting on 26 November 2002 as a Chamber composed of

Mr J.-P. Costa, President
 Mr L. Loucaides
 Mr C. Bîrsan
 Mr K. Jungwiert
 Mr V. Butkevych
 Mrs W. Thomassen
 Mrs E. Steiner, judges
and  Mrs S. Dollé, Section Registrar,

Having regard to the above application lodged on 27 June 2000,

Having regard to the President’s decision of 28 March 2002 to apply Rule 39 of the Rules of Court,

Having regard to the Chamber’s decision of 16 April 2002 to extend the Rule 39 measure pending the Court’s examination of the admissibility and the merits of the application,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

 

THE FACTS

The applicant, Mohamed Bilasi-Ashri, is an Egyptian national, who was born in 1966 and is currently residing in Austria. Before the Court, he is represented by Herbert Pochieser, a lawyer practising in Vienna. The respondent Government are represented by their Agent, Ambassador H. Winkler, Head of the International Law Department at the Federal Ministry for Foreign Affairs.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows:

1. The applicant’s political activities in Egypt

The applicant gives the following account of his political activities in Egypt.

In 1985 he joined the Muslim Brotherhood. He was an active member, being responsible for giving speeches and attracting new members. In 1987 he was arrested on two occasions because of his involvement with this group. He was detained in the Hehie police station for periods of three and four days respectively. He was beaten up, but did not suffer any severe injuries.

In 1988 the applicant become a member of the “Al-Gama-Al-Islamaya” (Islamic Group), another Islamic fundamentalist group. In April 1988 he was again arrested and held at the Hehie police station for four days.

Four months later, he joined the Al-Jihad-Al-Islami” (Islamic Holy War - “Al-Jihad”). According to the applicant, he considered this movement more powerful than the previous ones he had joined. He was a member for one and a half years, again engaged in propaganda work.

As the Al-Jihad had failed to establish an Islamic state of Egypt, the applicant, in May 1990, joined the Alquotbinjun”. Again, he made speeches and was responsible for attracting members. In September 1990 he was arrested and detained at the Al-Zakazik prison for a week. During the interrogations, he was ill-treated and suffered from bleeding to the mouth and nose.

In June 1991, after having obtained a passport, the applicant went to Saudi Arabia, where he stayed for eight months.

After returning to Egypt in February 1992 to join his mother, wife and son, the applicant, in July 1992, resumed his political activities. At the beginning of 1993 he was arrested and accused of being a member of an illegal fundamentalist group. He was brought to Zakazi prison, where he was ill-treated. He was released after twenty eight days for lack of evidence.

Between April 1993 and March 1994 he was taken for interrogation to the police station on several occasions, but was always allowed to go home after a few hours. During these interrogations no ill-treatment occurred, as he was no longer politically active.

In March 1994 mass arrests were carried out by the Egyptian police. The applicant went into hiding for three weeks and subsequently left for Albania, where he arrived on 30 March 1994. In June 1994 he was joined by his wife and son. They stayed with the family of his sister-in-law, who was living in Albania, until 18 April 1995. The applicant worked as a book-keeper. In April 1995 the family left Albania.

On 20 April 1995 the applicant and his family arrived in Austria.

2. Asylum proceedings

On 26 April 1995, in the course of an interview at the police station of the Vienna International Airport, the applicant filed an asylum request. Later in the day, the applicant, who was then assisted by a social adviser of the Vienna “Caritas”, sent a fax to the Federal Asylum Office containing supplementary submissions. In the fax it was stated that the applicant and his son had been mentioned by name in the Egyptian daily newspapers Al Wafd”, “Al Ahram” and Al Ahbar” on 16 and 17 December 1994, respectively. According to those articles, the applicant had founded an opposition group called Tahil al Laban”. The applicant claimed that the Austrian authorities had failed to add this information to the minutes of the interview which had been held earlier that day.

The Federal Asylum Office, on the same day, dismissed the asylum request. The authority found that the applicant’s submissions were plausible as far as they concerned his alleged persecution between 1985 and 1991. However, as regards the subsequent period, it found that he could not have been subjected to serious persecution. In this respect, it noted that the applicant had been issued with a passport for his departure to Saudi Arabia in 1991 and concluded that, if the applicant had actually been considered a State enemy or militant fundamentalist by the Egyptian authorities, he would have been unable either to obtain a passport to leave the country or re-enter eight months later without any problem. Furthermore, the Asylum Office noted that the applicant had last been arrested in 1992, whereas he had not left Egypt before March 1994. Moreover, it found that the applicant could have requested asylum in Slovenia or Albania, both safe third countries.

The applicant appealed. He claimed that the records of his interview were incomplete and that the Federal Asylum Office had failed to take into account the additional evidence he had submitted by fax. He further claimed that, in the course of the interview, he was not allowed to give his account in his own words, but could only answer the questions put to him by the police. In this regard, he alleged that the officer had not asked him about the situation in the spring of 1994 which had prompted him to leave Egypt. He submitted that he had fled to Al Koren because of a new wave of arrests. He alleged that eleven of his friends had been arrested, that his house had been searched several times and that his pregnant wife had been asked about his whereabouts. Both his father-in-law and brother-in-law had been arrested in order to establish his whereabouts, and his mother had been interrogated as well. Moreover, the applicant claimed that the doctor who took care of his wife’s delivery was asked not to perform a caesarean because of her husband’s political activities. Regarding his motivation for joining the aforementioned Islamic movements, the applicant stated that he had been attracted by their strong and energetic actions, but stressed that he rejected violence. He claimed that his first arrest was facilitated by the secret police “Amn Douwlat”. Once, in 1990, he had been beaten with a cable and tortured using electroshock treatment. After that arrest, he had been dismissed from his employment.

The applicant stressed that he had not been able to stay in Albania any longer. He claimed that the Albanian Government had provided the Egyptian Government with a list of Egyptian nationals residing in Albania. This list was aimed at returning government opponents to Egypt. In this respect, he referred to an agreement between Albania and Egypt, in which the latter had offered economic support to Albania if the Albanian government co-operated with Egypt in its fight against fundamentalism.

On 11 May 1995 the Federal Minister of Internal Affairs (Bundesminister für Inneres) dismissed the appeal. Referring to the minutes of the interview, the Minister pointed out that the applicant had confirmed that his submissions made on that occasion were exhaustive. Thus, he found that the applicant’s new submissions lacked credibility.

The applicant filed a complaint with the Constitutional Court (Verfassungsgerichtshof).

On 30 May 1995 he filed a request for the re-opening of the proceedings, submitting further newspaper articles as fresh evidence.

On 10 August 1995 the Constitutional Court granted suspensive effect to the applicant’s complaint.

On 26 September 1995 the Constitutional Court refused to deal with the complaint for lack of prospects of success, and referred the case to the Administrative Court (Verwaltungsgerichtshof).

On 19 March 1996 the applicant filed a second request for the re-opening of the proceedings, submitting a newspaper article published in Al-Hayat” on 5 March 1996. In this newspaper, published in London, the applicant was accused by the Egyptian Ministry for Internal Affairs of being in contact with members of Al-Jihad and of planning terrorist activities. The applicant, however, claimed that he rejected  violence of any sort.

On 15 July 1996 the Administrative Court granted suspensive effect to the applicant’s complaint.

On 26 August 1996 the Federal Minister for Internal Affairs dismissed the applicant’s requests for a re-opening on the ground that these articles had been published after 11 May 1995, i.e. the date of the appeal decision concerning the applicant’s asylum request.

On 23 January 1998 the applicant filed a third request for a re-opening, presenting two further newspaper articles. The first one (“Alabra”, 5 March 1996) described him as one of several members of an armed Islamic group currently under observation in Europe. In the second article (“Goumhouria”) it was reported that the Egyptian State Security Service had disclosed the name of the leaders of Islamic movements in Great Britain, Austria and Albania. It stated that the applicant was the head of the Al-Jihad group in Austria and had already been sentenced to fifteen years’ imprisonment in Egypt.

On 30 January 1998 the applicant filed a second asylum request, relying on the same evidence as submitted in his third request for the re-opening of the proceedings.

Referring to the Asylum Act 1997 (Fremdengesetz), which had entered into force on 1 January 1998, the Administrative Court, on 11 March 1998, discontinued proceedings on his complaint filed against the decision of the Federal Minister for Internal Affairs on 11 May 1995, and referred the case to the newly established Independent Asylum Panel (Unabhängiger Bundesasylsenat).

On 4 February 2002 the Independent Asylum Panel held a hearing in the applicant’s case. The proceedings are apparently still pending.

4. Criminal proceedings against the applicant in Egypt

In the meantime, on 15 December 1994, an Egyptian public prosecutor instituted proceedings against the applicant and sixteen other persons. They were suspected of belonging to an illegal association whose aim was to threaten national order and security by means of violence and terror. Further, they were charged with serious criminal offences, which had been committed with the aim of financing their political activities. On 25 December 1995 the Egyptian State Security Emergency Court convicted the applicant in absentia of these offences and sentenced him to fifteen years’ imprisonment and hard labour.

5. Extradition proceedings in Austria

On the basis of the applicant’s conviction of 25 December 1995 the Egyptian Ministry of Justice, on 22 July 1998, filed a request for extradition.

On 16 October 1998 the applicant was heard by the investigating judge of the Krems Regional Court.

On 12 July 1999 the investigating judge filed a report with the Vienna Court of Appeal (Oberlandesgericht), proposing that the request for extradition be allowed.

After an oral hearing, the Vienna Court of Appeal, on 21 December 1999, declared the extradition request inadmissible as regards acts which were deemed to be political offences under section 14 § 1 of the Extradition Act. However, it granted the request in so far as it was based on counts of forgery (Urkundenfälschung), robbery (Raub) and theft (Diebstahl), all committed within the network of a criminal association (Bandenbildung). As regards the political dimensions of these offences, namely that they were aimed at financing violent political activities, the court found that, in the case at issue, their criminal character clearly pre-dominated. In this respect, it referred to section 14 § 2 of the Austrian Extradition Act (Auslieferungs- und Rechtshilfegesetz), which provides for a case-by-case examination of politically motivated offences.

The decision was subject to the condition that the decision of the State Security Emergency Court of 25 December 1995 would be declared null and void, and that the applicant would not be re-tried before a court with exclusive jurisdiction to deal with political criminal cases but before an ordinary court. In this regard, the Supreme Court referred to section 10 of the Egyptian Code of Criminal Procedure, according to which a conviction in absentia must be annulled as soon as the person concerned is arrested, and a re-trial ordered.

On 21 June 2000 the Federal Minister of Justice (Bundesminister für Justiz) transferred the file to the Procurator General’s Office (Generalprokurator) for examination.

On 23 August 2000, upon the Procurator General’s plea of nullity for the preservation of law (Nichtigkeitsbeschwerde zur Wahrung des Gesetzes) dated 5 July 2000, the Supreme Court quashed the decision insofar as it had declared the extradition admissible, and referred the case back to the Vienna Court of Appeal for further investigation. The Supreme Court found that the Vienna Court of Appeal had not sufficiently specified the offences on the basis of which extradition had been allowed.

On 20 December 2000, 24 January 2001 and 14 February 2001, following requests by the first instance investigating judge, the Egyptian Public Prosecutor filed supplementary details about the offences of which the applicant had been convicted.

On 25 October 2001 the applicant was taken into detention with a view to his extradition.

On 12 November 2001, after a hearing, the Court of Appeal again granted the extradition request on condition that the decision of the State Security Emergency Court of 25 December 1995 be declared null and void and that the applicant be re-tried before an ordinary court. Further, the decision was subject to the condition that the applicant would not be persecuted or suffer restrictions on his personal freedom, or be extradited to a third country for an offence committed before his surrender and which was not covered by the extradition order.

Referring to the supplementary submissions made by the Egyptian Public Prosecutor, the Court of Appeal stated that the applicant could be extradited for various acts of theft, robbery and forgery committed between January 1993 and 1 September 1994 in Ismailia, Sharquiea and Qalyubia. As one of the leaders of a criminal association, he was to be extradited for inciting specified members of that association to steal two water engines, a sheep, a water pump, a television and two gas bottles, incitement to an attempted armed robbery of a lorry, incitement to sell these stolen goods and the forgery of identity documents. Referring to academic commentaries on section 14 of the Extradition Act, the court confirmed that, even though aimed at financing political activities, these offences were mainly of a criminal character. As regards the applicant’s request for an expert opinion, the court recalled that, according to the relevant rules of procedure, experts are not to be consulted on questions of law.

Insofar as the applicant had claimed that the asylum proceedings were still pending, the court found that, under Austrian law, the fact that such proceedings were pending did not, in general, hinder extradition.

Insofar as the applicant had raised Article 2 of Protocol No. 7 to the Convention, the court referred to the latest Country Report (Egypt) of the United States State Department, according to which ordinary criminal proceedings provide for two levels of appeal, namely the court of appeal and the court of cassation.

Finally, the Court of Appeal stated that there were no grounds to fear that the criminal proceedings in Egypt would not comply with the requirements of Articles 3 and 6 of the Convention, as the applicant would be re-tried by an ordinary criminal court in compliance with the conditions set out in its decision. It referred to a private expert opinion of the German Institute for Oriental Studies (Deutsches Orientinstitut), which had been submitted by the applicant himself. According to this report, criminal proceedings conducted before ordinary Egyptian courts are, in the vast majority of cases, in compliance with international standards.

As stated in the report of the German Institute for Oriental Studies, allegations of ill-treatment during detention in police stations are dealt with in the course of the trial and sanctioned in accordance with both Egyptian law and international standards. The court also referred to the Country Report (Egypt) of the United  States State Department for the year 2000,  
according to which detention conditions in Egyptian prisons did, in general terms, meet the standards required under Article 3 of the Convention. In that report it was also stated that prisoners could successfully file complaints relating to their detention and, since August 1999, prisons were subject to inspection.

The Court of Appeal concluded that Egypt was not a country where serious large-scale violations of human rights could be considered an institutionalised everyday practice. Thus, there was no general obstacle to extradition.

As for the applicant’s submissions that he was at special risk of ill-treatment, the court noted in particular that, for years, the applicant had voiced public criticism of the Egyptian Government and had joined various illegal organisations. However, it was noted that although he had repeatedly been arrested and questioned, he had always been released again. It also noted that he had been able to finish his university studies, find work, travel to Saudi Arabia and return to Egypt eight months later without being prosecuted. In these circumstances, the Court of Appeal found that there was nothing to indicate that he would be subjected to persecution on account of his religious or political views.

As far as the alleged ill-treatment in the past was concerned, the Court of Appeal found that the applicant’s submissions were not objective. In particular, the court stressed that the applicant himself had stated that he had not suffered any visible injuries. It therefore found that the medical expertise requested by the applicant was unlikely to clarify the facts. As regards the applicant’s account of his repeated arrests and ill-treatment in custody, the Court of Appeal referred to the fact that the applicant had continued to live in Egypt despite the alleged serious ill-treatment and that he had even returned there after his stay in Saudi Arabia. It concluded that, in such circumstances, his allegations were not plausible.

The Court of Appeal also considered a psychological expertise prepared by an association supporting victims of war and torture (Verein zur Betreuung von Folter- und Kriegsüberlebenden), which had been submitted by the applicant. According to this report, the applicant suffered from a post-traumatic disorder resulting from severe torture. The court noted that the report was entirely based on the applicant’s own statements and, in this regard, pointed out several inconsistencies with other statements which the applicant had previously made to the Austrian authorities. Further, it found that the alleged psychological disturbance, extending to memory loss as to his own age, differed from the impression of the applicant’s testimony gained by the Court of Appeal.

Insofar as the applicant had raised the issue of family separation if extradited to Egypt, the Court of Appeal found that his objections in this regard could not prevent extradition.

At the hearing before the Vienna Regional Court, the applicant’s counsel, in addition to his written submissions, alleged that the Egyptian extradition documents were forgeries. In this respect, he referred to the report of the German Institute for Oriental Studies, which had been obtained by the applicant on questions of the fairness of ordinary criminal proceedings and political persecution in Egypt. In the report, it was stated as an obiter dictum that, according to the extradition documents, the applicant had been convicted, inter alia, of political offences under section 86, 86a and 86aa of the Egyptian Criminal Code. However, section 86 of the Egyptian Criminal Code had been abolished by Law No. 112 in 1957, published in the Official Gazette on 19 May 1957. Accordingly, the chapter on offences threatening national security now commenced with section 87 only. In these circumstances, the German Institute for Oriental Studies concluded that the extradition documents were not authentic.

The Court of Appeal, however, found that the applicant’s request for an expert opinion on their authenticity amounted to an unacceptable “fishing expedition” (Erkundungsbeweis), as there was nothing in the case-file or from the applicant’s submissions to cast any real doubt on this.

Referring to section 31 of the Extradition Act, the court recalled that it was not its task to examine the well-foundedness of the reasons for suspicion, unless there was strong evidence to show that the suspicion was manifestly unreasonable. Thus, insofar as the applicant had alleged that his conviction was based on witness statements which had been obtained by means of torture, the court found that these allegations, being purely speculative, were irrelevant to the proceedings.

Furthermore, the court saw no reason to apply the hardship clause of section 22 of the Extradition Act, or to doubt the existence of reciprocity as required by section 3 of that Act.

On 12 November the Federal Minister of Justice approved the applicant’s extradition, subject to the conditions set out in the Vienna Court of Appeal’s decision of the same day. Moreover, he stated that the extradition would only take place on the further condition that the applicant would be allowed to leave Egyptian territory within 45 days in case of acquittal.

On 4 January 2002 Amnesty International issued a press release in which it expressed concern that the applicant was at risk of ill-treatment if extradited to Egypt and called for “urgent action”.

Note (Verbalnote) of 10 January 2002, the Federal Ministry for Foreign Affairs informed the Embassy of the Arab Republic of Egypt of the extradition order. It was indicated to the Egyptian authorities that it was the understanding of the Republic of Austria that the Egyptian authorities would provide for visits by an official from the Austrian Embassy if the Austrian authorities were to make such a request.

 

By letter of 22 March 2002 the United Nations High Commissioner for Refugees (UNHCR) informed the Minister of Justice that, in the light of the documents submitted by the applicant and an interview with him on 11 March 2002, the UNHCR strongly recommended that he be granted refugee status on the basis that he had a well-founded fear of persecution for reasons of political opinion if extradited to Egypt. It urged the Minister of Justice to respect the applicant’s particular need of protection and, hence, refrain from extraditing him. The UNHCR underlined that the examination of whether the requirements for refugee status were met was to be conducted by special authorities. Under Austrian law, the Independent Asylum Panel had been established to fulfil this task. Accordingly, the UNHCR found that the extradition proceedings before the Vienna Court of Appeal did not provide for an adequate and sufficient examination of the applicant’s objections to the refusal of his asylum request.

On 31 May 2001 the Review Chamber of the Krems Regional Court (Ratskammer) rejected the applicant’s request to suspend his extradition, stating that it was not competent to deal with the matter.

The applicant filed a fundamental rights complaint (Grundrechtsbeschwerde) with the Supreme Court.

On 17 July 2002 the Supreme Court rejected the applicant’s complaint, confirming the reasoning of the Review Chamber.

On 14 August 2002 the Federal Ministry of Justice notified the investigating judge at the Krems Regional Court that the Egyptian authorities had indicated that they would not accept the conditions laid down in the extradition order. The Ministry of Justice stated that, in these circumstances, it no longer intended to give a deadline to the Egypt Government to accept the extradition order.

The applicant was released at 12.30 p.m. on the same day.

B.  Relevant domestic law

If, as in the present case, there is no extradition treaty between Austria and the requesting State, the Extradition and Legal Assistance Act, as amended in 1992 (Auslieferungs- und Rechtshilfegesetz, idF BGBl 1992/756; “the Act”), applies. Its provisions, as far as relevant, may be summarised as follows:

Section 14 of the Act distinguishes between absolute political offences in cases in which extradition is not allowed (§ 1) and relative political offences, namely ordinary criminal offences which were politically motivated. In the latter case, extradition may only be granted if the criminal character of the offence outweighs its political aspect. In this regard the way the offence was committed, the means which were employed by the offender and the consequences produced, or intended to be produced by the offence, must be taken into account (§ 2).

According to section 19, extradition is inadmissible if it is to be feared that the criminal proceedings in the requesting State will not or did not comply with the principles enshrined in Articles 3 and 6 of the European Convention on Human Rights (§ 1); the sentence imposed or to be expected, or the preventive measure taken or to be expected in the requesting State, will be executed in a manner inconsistent with the requirements of Article 3 of the Convention (§ 2); the person to be extradited will be subject to prosecution due to his/her origin, race, religious beliefs, membership of a certain ethnic or social group, nationality or political views, or could expect other serious disadvantages for one of these reasons (extradition asylum) (§ 3).

According to section 33, the Court of Appeal decides whether extradition shall be allowed. The court sits in private unless the Senior Public Prosecutor’s Office or the person concerned requests a public hearing (§ 1). At the hearing, the person to be extradited has to be represented by counsel (§ 2). The court decides by a formal decision (Beschluss), which must be reasoned. The decision is pronounced orally by the presiding judge. No appeal lies against it (§ 5).

According to section 34, the final decision on a request for extradition lies with the Minister of Justice. However, the extradition request must be refused if the court of second instance has found against it. The Minister has to take the interests of Austria into account, its obligations under international law, particularly as regards asylum, and the protection of human dignity.

COMPLAINTS

1. The applicant complains under Article 3 of the Convention that he will be subjected to ill-treatment if extradited to Egypt. He claims that the Egyptian extradition documents are not authentic. He submits that he is at risk of continued incarceration even if he is acquitted following fresh proceedings in Egypt. In this respect, he also complains that the Austrian Extradition Act does not provide the possibility to verify whether the conditions set out in an extradition order are complied with.

2. The applicant complains that if he were returned to Egypt he would not receive a fair trial before an independent and impartial tribunal within the meaning of Article 6 of the Convention; neither would he have access to appeal proceedings such as those guaranteed by Article 2 of Protocol No. 7. to the Convention

3. The applicant complains under Article 6 of the Convention that the extradition proceedings before the Vienna Court of Appeal were unfair.

4. The applicant also complains under Article 13 of the Convention that no appeal lay against the decision of the Vienna Court of Appeal.

5. Finally, the applicant complains that extradition to Egypt would violate his rights under Article 8 of the Convention.

THE LAW

Article 37 of the Convention, as far as relevant, reads as follows:

“1.  The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that

(b)  the matter has been resolved; ...

2.  However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”

The Court observes that the parties, by letter of 28 August and 2 September 2002, respectively, notified the Court that the applicant had been released from detention pending extradition. The decision had been taken after the Egyptian authorities had informed the Austrian Embassy in Cairo that they did not accept the conditions set out in the extradition order.

In his letter of 28 August 2002 the applicant’s lawyer claimed that the applicant, although released, was still at risk of being extradited, since the extradition order issued by the Vienna Court of Appeal on 12 November 2001 was still in force.

The Court is not persuaded by this argument. It notes that, according to section 33 of the Extradition and Legal Assistance Act, it is for the Court of Appeal to allow extradition and to specify, in this respect, whether or not an extradition order is subject to certain conditions. Under section 34 of that Act, the Minister of Justice has to refuse extradition if and insofar as the Court of Appeal has not allowed a request for extradition.

The Court observes that the applicant was released from detention immediately after the Egyptian authorities had indicated that they would not accept the conditions set out in the extradition order.

The Court further finds that the applicant has not submitted any elements which would substantiate his concerns that the Minister of Justice would disregard the conditions set out in the extradition order issued by the Vienna Court of Appeal.

In the light of these considerations, the Court concludes that the matter giving rise to the application has been resolved, within the meaning of Article 37 § 1 (b) of the Convention since the applicant is no longer at serious risk of extradition.

The Court also considers that respect for human rights as defined in the Convention does not require a continuation of the examination of the case. It, therefore, decides to strike the application out of its list of cases in accordance with Article 37 § 1 (b) of the Convention.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

S. Dollé J.-P. Costa 
 Registrar President

BILASI-ASHRI v. AUSTRIA DECISION


BILASI-ASHRI v. AUSTRIA DECISION