Ahmed v Austria (Application 25964/94) [1996] ECHR 63

A Somali refugee in Austria had his refugee status revoked after a criminal conviction for attempted robbery. Austria sought to deport him to Somalia. The Court held that deportation would breach Article 3 ECHR as he faced a real risk of torture or inhuman treatment due to ongoing civil war and clan persecution in Somalia.

Facts

Mr Sharif Hussein Ahmed, a Somali national born in 1963, arrived in Austria in October 1990 and applied for refugee status. He claimed his uncle was an active USC (United Somali Congress) member, and his father and brother had been executed for assisting his uncle. He feared arrest and execution if returned to Somalia.

On 15 May 1992, the Austrian Minister of the Interior granted him refugee status, finding his allegations credible and recognising the risk of persecution upon return. However, on 25 August 1993, Mr Ahmed was convicted of attempted robbery and sentenced to two and a half years imprisonment. Consequently, on 15 July 1994, the Federal Refugee Office ordered forfeiture of his refugee status under section 5(1)(3) of the Right to Asylum Act, which implements Article 33(2) of the Geneva Convention.

An exclusion order was issued on 14 November 1994, and Mr Ahmed was detained pending expulsion after serving his sentence. He applied to the European Commission of Human Rights, which indicated provisional measures preventing deportation.

Issues

The central issue was whether deporting Mr Ahmed to Somalia would violate Article 3 of the European Convention on Human Rights, which prohibits torture or inhuman or degrading treatment or punishment. Specifically, the Court considered whether the absolute nature of Article 3 protection applied notwithstanding Mr Ahmed’s criminal conviction.

Judgment

The Court unanimously held that deportation of Mr Ahmed to Somalia would breach Article 3 of the Convention for as long as he faced a serious risk of being subjected to torture or inhuman or degrading treatment there.

Absolute Nature of Article 3

The Court emphasised the absolute character of Article 3 protection:

“Article 3, which enshrines one of the fundamental values of democratic societies, 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, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 even in the event of a public emergency threatening the life of the nation.”

Criminal Conduct Irrelevant

The Court confirmed that an applicant’s criminal activities cannot affect Article 3 protection:

“The above principle is equally valid when issues under Article 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 is thus wider than that provided by Article 33 of the 1951 Convention relating to the Status of Refugees.”

Assessment of Risk

The Court attached particular weight to the fact that Austria had previously granted Mr Ahmed refugee status, recognising the risk of persecution. Although this status was later revoked due to his conviction, the consequences of expulsion for the applicant were not considered. The Court found the situation in Somalia remained dangerous, with ongoing civil war and no indication that dangers had ceased or that any authority could protect him.

Implications

This judgment significantly reinforced the absolute nature of Article 3 protection in expulsion cases. It established that:

• A person’s criminal record, however serious, cannot justify exposing them to torture or inhuman treatment
• Article 3 ECHR provides broader protection than the Geneva Convention on refugees, which permits exceptions for dangerous criminals
• States must assess current conditions in the receiving country when considering expulsion
• The lack of state authority in the destination country does not diminish Article 3 obligations

The case became an important precedent for subsequent deportation cases involving failed asylum seekers with criminal convictions, notably influencing the later judgment in Chahal v. United Kingdom.

Verdict: The Court unanimously held 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, there would be a breach of that provision if the decision to deport him there were implemented. Austria was ordered to pay 150,000 Austrian schillings in costs and expenses.

Source: Ahmed v Austria (Application 25964/94) [1996] ECHR 63