12847/87

 AS TO THE ADMISSIBILITY OF Application No. 12847/87 by S.G. against Switzerland The European Commission of Human Rights sitting in private on 13 July 1990, the following members being present: MM. J. A. FROWEIN, Acting President S. TRECHSEL F. ERMACORA A.S. GÖZÜBÜYÜK A. WEITZEL J.-C. SOYER H. G. SCHERMERS H. DANELIUS Mrs. G. H. THUNE Sir Basil HALL Mrs. J. LIDDY MM. L. LOUCAIDES J.-C. GEUS A. V. ALMEIDA RIBEIRO 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 April 1987 by S.G. against Switzerland and registered on 2 April 1987 under file No. 12847/87; Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission; Having deliberated; Decides as follows: THE FACTS The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant, a Sri Lankan citizen of Tamil origin born in 1964, is a student residing at Berne in Switzerland. Before the Commission he is represented by Mrs. Ch. Schibig, a lawyer practising in Berne. I. From November 1984 onwards the applicant was a sympathiser of the People's Liberation Organisation of Tamil Eelam (PLOT), an organisation directed against the Sri Lankan Government. As such the applicant was engaged in propaganda for the PLOT. In December 1984 the applicant was travelling in a bus which was stopped by Sri Lankan soldiers. The passengers were searched whereby the applicant was hit. In January 1985 the applicant was interrogated by the Sri Lankan authorities together with 300 other persons. After his identity had been controlled he was released on the same day. In view of the death of three friends, apparently shot by the authorities, the applicant decided to flee. He left Sri Lanka on 27 May 1985 and travelled via Moscow and Berlin to Switzerland. II. On 7 June 1985 the applicant entered Switzerland. On 10 June 1985 he filed a request for asylum with the Berne Police Inspectorate (Polizeinspektorat). On 2 June 1986 the Delegate for Refugees (Delegierter für das Flüchtlingswesen) dismissed the request and ordered the applicant's expulsion. The applicant filed an appeal against this decision with the Federal Department of Justice and Police (Eidgenössisches Justiz- und Polizeidepartement), claiming that an expulsion to Sri Lanka would be unreasonable. He submitted in particular that the two arrests and the death of his friends had created an intolerable psychological pressure for him. On 6 October 1986 the Department dismissed the request. It found inter alia that the authorities, when apprehending the applicant in December 1984 and January 1985, had released him shortly thereafter, thus demonstrating that they were not interested in his person. The Department also saw no other circumstances warranting the conclusion that he would be persecuted by the authorities. The Department also ordered the applicant to leave Switzerland by 24 November 1986. III. While residing in Switzerland, the applicant engaged in activities for the Tamil Eelam Information Office. He also participated in demonstrations against the Sri Lankan Government, for instance on 4 March 1986 against the visit of the Sri Lankan foreign minister to Switzerland. After this demonstration the applicant's picture appeared in the Swiss press and on Swiss television. In August 1986 the applicant's mother, residing in Sri Lanka, sent the applicant a copy of a Sri Lankan journal, published on 15 April 1986. The journal displayed in particular a photo which had appeared in a Swiss magazine and which depicted the applicant at the demonstration. On 13 November 1986 the applicant applied to the Federal Department of Justice and Police for the reopening of the proceedings. He claimed that after participating in the demonstration against the Sri Lankan foreign minister, he would be subjected to measures of persecution in Sri Lanka for which reason the Department's decision of 6 October 1986 (see above, II.) should be cancelled. On 19 November 1986 the Department dismissed the request as the applicant had not demonstrated a considerable probability (mit erheblicher Wahrscheinlichkeit) that he would be subjected to inhuman treatment upon his return to Sri Lanka. On 6 April 1987 the applicant filed a new request with the Federal Department of Justice and Police for the reopening of the proceedings. Meanwhile the Swiss authorities sent a delegation to Sri Lanka to examine the situation in particular with regard to the possibilities of expelling 30 Sri Lankan citizens to Sri Lanka, one of whom was the applicant. A member of their delegation also spoke to the applicant's father. COMPLAINTS The applicant complains under Article 3 of the Convention of his expulsion to Sri Lanka. He would thus be subjected to political persecution, most probably to a long prison sentence and even torture. He will most likely be sought for his political activities, both in Sri Lanka and in Switzerland. PROCEEDINGS BEFORE THE COMMISSION The application was introduced on 6 April 1987 and registered on 9 April 1987. On 13 April 1987 the President decided not to apply Rule 36 of the Commission's Rules of Procedure. On 14 April 1987 the Secretary of the Commission informed the respondent Government of the application in accordance with Rule 41 of the Commission's Rules of Procedure. On 4 May 1987 the Government submitted information on the application. This was commented upon by the applicant in a letter of 11 May 1987. On 11 May 1987 the Government submitted further information by telephone. On 14 May 1987 the Commission decided to adjourn the examination of the application. The applicant submitted further correspondence on 10 July 1987, 20 June 1989, and 2 May 1990. THE LAW The applicant complains of his expulsion to Sri Lanka where he will be allegedly subjected to inhuman treatment contrary to Article 3 (Art. 3) of the Convention. The applicant notes that the Swiss authorities currently do not enforce the expulsion order but claims that his residence in Switzerland must be regulated. The Government submit that as a result of the visit of Swiss officials to Sri Lanka, the applicant's expulsion is no longer imminent. Any definite decision will be taken on the basis of up-to-date information obtained on the spot with regard to the applicant's particular situation. They state that any decision to expel the applicant will be brought to his attention in such a manner that he is in a position duly to react. The Commission recalls that the right of an alien to reside in a particular country is not as such guaranteed by the Convention. However, expulsion may in exceptional circumstances involve a violation of the Convention, for instance where there is a serious fear of treatment contrary to Article 3 (Art. 3) of the Convention (see No. 10564/83, Dec. 10.12.84, D.R. 40 p. 262; mutatis mutandis Eur.Court H.R., Soering judgment of 7 July 1989, Series A no. 161, pp. 32 et seq.). In the present case the applicant submits that upon his expulsion to Sri Lanka he will be subjected to such treatment. However, the Commission notes that the Swiss authorities have not enforced the expulsion order since 1987. The Commission is moreover satisfied that the assurances of the respondent Government provide sufficient guarantee that, if the applicant's expulsion order were to be enforced, he would be granted sufficient opportunity to challenge the execution. 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 cannot at the present time claim to be a victim of the alleged violation within the meaning of Article 25 (Art. 25) of the Convention. It follows that the appliction 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 Acting President of the Commission (H.C. KRÜGER) (J.A. FROWEIN)