15693/89

 AS TO THE ADMISSIBILITY OF Application No. 15693/89 by D. against Switzerland The European Commission of Human Rights sitting in private on 2 September 1991, the following members being present: MM. C.A. NØRGAARD, President J.A. FROWEIN S. TRECHSEL F. ERMACORA G. JÖRUNDSSON A.S. GÖZÜBÜYÜK A. WEITZEL J.C. SOYER H.G. SCHERMERS H. DANELIUS Mrs. G.H. THUNE Sir Basil HALL Mr. F. MARTINEZ Mrs. J. LIDDY MM. L. LOUCAIDES J.-C. GEUS A.V. ALMEIDA RIBEIRO M.P. PELLONPÄÄ B. MARXER 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 20 October 1989 by D. against Switzerland and registered on 25 October 1979 under file No. 15693/89; Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission; Having deliberated; Decides as follows: THE FACTS The applicant is a Turkish citizen born in 1945, who is currently in Switzerland with no permanent residence. Before the Commission he is represented by Mr. W. Spirig, a lawyer practising at Berne in Switzerland. The facts submitted may be summarised as follows. I. While residing in Turkey the applicant owned a shoemaker shop at Cavdir. He was a member of the opposition party "Sosial Halkci Partisi (SHP)". Together with other persons he participated in a demonstration early in 1986 to protest about the ill-treatment of a person by the police commander of a police station. As a result, he was arrested together with 40-50 other persons. The applicant was then detained for ten days. During two days he was beaten and tortured by this police officer. Upon release, a doctor confirmed in a certificate dated 15 February 1986 injuries on his back, arm, thumb and head, and prescribed three days' sick leave. The applicant introduced a disciplinary complaint against the responsible police officer whereupon criminal proceedings were instituted against the officer. On 22 March 1988 the officer was sentenced to 18 months' imprisonment as well as 18 months' prohibition of service. According to the applicant's original submissions before the Swiss authorities he left Turkey on 16 November 1988 (see below II). According to his later submissions before the Swiss Federal Council (Bundesrat) he left Turkey on 28 June 1986 and then resided illegally in Austria (see below IV). II. On 20 November 1988 the applicant illegally entered Switzerland. On 21 November 1988 he requested asylum at Chiasso in Switzerland whereupon on 22 November 1988 he was questioned by the authorities. Apparently during this time he no longer had a passport in his possession. On 6 January 1989 the applicant was questioned by the Delegate for Refugees (Delegierter für das Flüchtlingswesen). The applicant stated that after the incident in 1986 he lived in fear of the governing party, particularly as he was ordered from time to time to appear at the local police station where he was questioned. The applicant further explained that he delayed his departure from Turkey until 1988 as he had to sell his business and prepare his trip. On 16 January 1989 the Delegate for Refugees dismissed the applicant's request for asylum. In the Delegate's opinion, the period of two and a half years between the incident in 1986 and the applicant's departure from Turkey demonstrated that the applicant had not left Turkey in 1988 on account of a threat of serious disadvantages. There were also considerable doubts as to the applicant's status in the SHP. The decision noted inter alia that the applicant had made incorrect statements in particular as to the membership card. III. The applicant appealed against this decision to the Federal Department of Justice and Police (Eidgenössisches Justiz- und Polizeidepartement). During the appeal proceedings he submitted a copy of the judgment of the Turkish court which convicted and sentenced the police officer concerned. Meanwhile the applicant was told that his bag had been found which, after entering Switzerland, he had lost at Zurich station with his passport inside. According to a subsequent statement of the Lost Property Central Office of the Swiss Federal Railway of 24 October 1989, the applicant fetched his bag on 20 February 1989 at the Lost Property Central Office in Zurich. The applicant filed further submissions with the Federal Department of Justice and Police on 21 February and 7 April 1989. On 21 April 1989 the Department dismissed the applicant's appeal. The Department considered that the incidents of which the applicant complained could not be attributed to the State since the police officer had meanwhile been convicted. The Department also cited the applicant's express statements when questioned by the Delegate for Refugees: "after 1986? We were not beaten and tortured ... Since 1986 there has been no incident any more" ("nach 1986? Wir wurden nicht geschlagen und nicht gefoltert ... Seit 1986 ist kein Ereignis mehr geschehen"). The Department further found that the occurrence after 1986, namely the applicant's questioning at the police station, did not suffice to grant him refugee status. IV. Against this decision the applicant filed on 27 October 1989 a hierarchical appeal (Aufsichtsbeschwerde) with the Federal Council. In these proceedings he submitted photocopies of his passport which he had meanwhile found according to which he had left Turkey on 28 June 1986; he claimed that he had travelled via Bulgaria, Romania, Hungary and Yugoslavia to Austria where he had resided illegally until November 1988 when he entered Switzerland. On 22 August 1990 the Federal Council dismissed the complaint. It noted that the applicant had failed to inform the previous instances of his new submissions about his illegal stay in Austria. In any event the fact that he did not apply for asylum in Austria demonstrated that he did not fear persecution in Turkey. Moreover, he had twice applied to the Turkish Consulate in Vienna for a prolongation of his passport. The Federal Council concluded that this conduct did not give rise to the assumption that he had feared ill-treatment upon his return to Turkey. COMPLAINTS The applicant complains under Articles 3 and 8 of the Convention of his threatened expulsion to Turkey, where he fears ill-treatment. He refers to the general situation in Turkey as well as to the uncontested fact that he had been tortured in 1986. He fears that the police officer concerned will again commit similar acts or that similar acts will happen elsewhere to him in Turkey. The applicant submits that originally he did not tell the Swiss authorities that he did not directly flee to Switzerland. He points out that upon his unlawful entry into Switzerland he lost his bag with his passport at Zurich station. He only recovered the bag and the passport on 20 February 1989. He submits that the Federal Council's decision did not sufficiently consider that he feared a repetition of ill-treatment on account of his previous persecution. PROCEEDINGS BEFORE THE COMMISSION The application was introduced on 20 October 1989 and registered on 25 October 1989. On 25 October 1989 the President decided not to apply Rule 36 of the Commission's Rules of Procedure. Upon the request of the applicant's lawyer in the application, the proceedings before the Commission were adjourned pending the outcome of a hierarchical complaint filed with the Swiss authorities. On 19 November 1990 the applicant requested a further adjournment in order to file additional submissions. The applicant filed his further submissions on 20 February 1991. THE LAW The applicant complains that if he is expelled to Turkey he will be subjected to inhuman treatment contrary to Article 3 (Art. 3) of the Convention which states: "No one shall be subjected to torture or 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. However, expulsion may in exceptional circumstances involve a violation of the Convention, for example where there is a serious risk of treatment contrary to Article 3 (Art. 3) of the Convention in the receiving State (see No. 12102/86, Dec. 9.5.86, D.R. 47 p. 286; mutatis mutandis Eur. Court H.R., Soering judgment of 7 July 1989, Series A No. 161, p. 32 et seq.). In the present case the Commission considers that apart from references to the general situation in Turkey the applicant's submissions concern mainly an incident early in 1986 when he was allegedly ill-treated by a police officer. However, the Commission notes that the police officer in question has meanwhile been sentenced to imprisonment on account of his conduct. The applicant has not provided sufficient further substantiation for his allegation that upon his return to Turkey after many years he will again risk the same treatment by the police officer at his home town. He has in particular not substantiated his allegation that he would risk such treatment elsewhere in Turkey. The Commission furthermore notes various unexplained inconsistencies in the applicant's submissions before the Swiss authorities, in particular as to the period of time between the incident in 1986 and November 1988 when he entered Switzerland. As a result, the Commission considers that the applicant's submissions raise doubts as to their accuracy. The Commission furthermore considers that the applicant has not sufficiently explained before the Commission the reason why, although he feared persecution upon his return to Turkey, he did not apply for asylum during his stay in Austria. In view of the above the Commission cannot find the circumstances to be such as to warrant the conclusion that the applicant's expulsion would be contrary to Article 3 (Art. 3) of the Convention on account of a risk of ill-treatment in Turkey. In any event 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. Insofar as the applicant also complains under Article 8 (Art. 8) of the Convention of his impending expulsion to Turkey, the Commission finds no issue under this provision. The application must therefore be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. For these reasons, the Commission unanimously DECLARES THE APPLICATION INADMISSIBLE. Secretary to the Commission President of the Commission (H.C. KRÜGER) (C.A. NØRGAARD)