14514/89

 AS TO THE ADMISSIBILITY OF Application No. 14514/89 by G.D. against Switzerland The European Commission of Human Rights sitting in private on 17 March 1989, the following members being present: MM. C.A. NØRGAARD, President J.A. FROWEIN S. TRECHSEL E. BUSUTTIL A.S. GÖZÜBÜYÜK A. WEITZEL J.-C. SOYER H.G. SCHERMERS H. DANELIUS J. CAMPINOS H. VANDENBERGHE Mrs. G.H. THUNE Sir Basil HALL MM. F. MARTINEZ C.L. ROZAKIS Mrs. J. LIDDY Mr. L. LOUCAIDES 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 3 November 1988 by G.D. against Switzerland and registered on 9 January 1989 under file No. 14514/89; 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 Turkish citizen of Kurdish origin born in Eastern Turkey in 1969, is a labourer who at the time of filing the application resided at Zunzgen in Switzerland. Before the Commission he is represented by Messrs S. Laubscher and A. Brunner, lawyers practising in Reinach. The applicant went to school in Turkey at Yakakcik near Istanbul, though he had to stop attending the last class as he was being persecuted by the Turkish police and fellow pupils. He was frequently beaten up on the street when no witnesses were around. Once he was brought to the police station at Yakakcik and interrogated whereupon he was again beaten up. In order to avoid such occurrences the applicant sometimes illegally travelled to Eastern Turkey where he lived with his family. The applicant claims that he had a certain affinity for the illegal Kurdish party "Rija Affadi" for which, apparently in Eastern Turkey, he undertook courier and other transport services. Once he was surprised by a military patrol who opened fire and injured a colleague of his. The applicant was so shocked that he fled; he also lost his speech for one month. In May or June 1986 the entire population of the village in which his family was living was deported by military forces. Apparently he was in this context also beaten up and remanded in solitary confinement. On 15 November 1986 the applicant fled with a forged passport from Turkey via Italy to Switzerland. On 18 November 1986 the applicant applied to the Aliens' Police of the Canton Basel-Landschaft for asylum. He claims that when he was interrogated by the police he was not capable of explaining the occurrences in Turkey since he was psychologically blocked. The psychiatrist Dr. B. concluded in an expert opinion that the applicant was not simulating. According to the minutes of the interrogation by the police of 21 January 1987 the applicant gave as reasons for leaving Turkey that he was a Kurd; that his school teacher had sent him out of his classroom; and that due to his Kurdish origin he was refused employment. On 25 March 1987 the Delegate for Refugees rejected the applicant's request. The applicant's appeal against this decision was dismissed by the Federal Department of Justice and Police on 5 May 1988. This decision noted in particular that the applicant had raised his fears of political persecution only in the appeal proceedings, although already in the initial proceedings he had been able to express himself clearly. It could be assumed, therefore, that the applicant was trying with subsequently added reasons to give more weight to his claims. The applicant's request for a reopening of the proceedings was dismissed by the Federal Department of Justice and Police on 20 September 1988. His request for a consideration of his application was rejected by the Delegate for Refugees on 7 October 1988. The applicant was to be expelled to Turkey on 15 November 1988. COMPLAINTS The applicant complains under Article 3 of the Convention that upon his expulsion to Turkey he will be confronted with severe political persecution, torture and inhuman treatment. He refers to the expert opinion of Dr. B. and a statement of 12 May 1988 of the District President of Kurfali near Istanbul according to which the applicant is wanted by the security authorities at Turkal near Istanbul. Under Article 6 para. 1 of the Convention the applicant claims that he did not have a fair hearing. In particular, neither the Delegate for Refugees nor the Department of Justice and Police personally heard the applicant. PROCEEDINGS BEFORE THE COMMISSION The applicant was introduced on 3 November 1988. On 11 November 1988 the President of the Commission decided not to apply Rule 36 of the Commission's Rules of Procedure. The applicant submitted his application form on 29 December 1988, and the application was registered on 9 January 1989. The applicant made further submissions concerning Article 6 of the Convention on 8 February 1989. THE LAW 1. The applicant complains of his expulsion to Turkey where he will be subjected to inhuman treatment and torture contrary to Article 3 (Art. 3) of the Convention. This provision states: "No one shall be subjected to torture or to inhuman or degrading treatment or punishment." The Commission has constantly held that the right of an alien to reside in a particular country is not as such guaranteed by the Convention (cf. Dec. No. 7816/77, 19.5.77, D.R. 9 p. 219). However, the Commission has also held that expulsion may in exceptional circumstances involve a violation of the Convention, for example where there is a serious fear of treatment contrary to Article 3 (Art. 3) in the receiving State (cf. Dec. No. 10564/83, 10.12.84 D.R. 40 p. 262). In the present case the Commission considers that the main evidence submitted by the applicant, namely a statement of an official according to which the applicant is wanted by the Istanbul security authorities, does not indicate why the applicant is wanted. Moreover, it refers to the security authorities of Kurfali near Istanbul, whereas the applicant claims to have been subjected to persecution in Eastern Turkey. Finally, the Commission notes that the applicant left Turkey only on 15 November 1986, i.e. more than five months after the alleged occurrences of inhuman treatment in Eastern Turkey in May and June 1986. The Commission finds therefore that the applicant has failed to show that the alleged treatment in Turkey would render his expulsion contrary to Article 3 (Art. 3) of the Convention. In any event the Commission notes that after his return to Turkey the applicant can bring an application before the Commission under Article 25 (Art. 25) of the Convention in respect of any violation of his Convention rights by the Turkish authorities. This part of the applicant must therefore be rejected as being manifestly ill-founded within the meaning of Article 27 (Art. 27) of the Convention. 2. The applicant further complains under Article 6 para. 1 (Art. 6-1) of the Convention that he did not have a fair hearing, since he was not personally heard by the Federal Delegate for Refugees or the Department of Justice and Police. However, the Commission recalls its case-law according to which a decision as to whether an alien should be allowed to stay in a country or be expelled does not involve either the determination of the applicant's civil rights or obligations or of a criminal charge against him within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention (see No. 8118/77, Dec. 19.3.81, D.R. 25 p. 105). It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention 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)