16217/90

 AS TO THE ADMISSIBILITY OF Application No. 16217/90 by C.T. against Switzerland The European Commission of Human Rights sitting in private on 16 March 1990, the following members being present: MM. C.A. NØRGAARD, President S. TRECHSEL E. BUSUTTIL G. JÖRUNDSSON A.S. GÖZÜBÜYÜK A. WEITZEL J.-C. SOYER H.G. SCHERMERS H. DANELIUS G. BATLINER J. CAMPINOS H. VANDENBERGHE Mrs. G.H. THUNE Sir Basil HALL Mr. F. MARTINEZ Mr. L. LOUCAIDES Mr. J. RAYMOND, Deputy 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 14 February 1990 by C.T. against Switzerland and registered on 26 February 1990 under file No. 16217/90; 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 born in 1957, resides at Rümlang in Switzerland. Before the Commission he is represented by Mr. K. Sintzel, a lawyer practising at Zürich. Since 1979 the applicant has been a sympathiser of the marxist- leninist TKP/ML Party. As such he put up posters for the party and distributed leaflets in front of schools and factories. In 1979 he was detained during eleven days following a dispute between trade union members and employers. In October 1987 the applicant was arrested and detained at the Yüregir/Adana police station. Two days later he was able to flee through the toilet window. As to the circumstances of this arrest, the Swiss authorities have pointed out certain contradictions in the applicant's statements. According to one statement he had been arrested during an identity control, whereas on another occasion he had stated that his arrest occurred while he was hanging up posters together with two friends. In February 1988 he was again arrested, though by bribing an official he was able to go free. According to one statement made before the Swiss authorities he had been released after three days, but on another occasion he had stated that the release took place already after three to four hours. In April 1988 he met with seven colleagues in order to discuss events on 1 May. Police appeared, though the applicant was able to flee with two colleagues. The latter were arrested four months later. After fleeing, the applicant lived in Adana and Western and Southern Turkey and worked illegally on building sites. At this stage a lawyer told him that a warrant of arrest had been issued against him since May 1988 on the grounds of his political activities for the TKP/ML Party. The lawyer also told the applicant that every ten days the police visited his family to inquire about his whereabouts. On 23 August 1989 the applicant left Turkey via Istanbul airport. The applicant entered Switzerland on 24 August 1989. On 25 August 1989 he filed a request for asylum with the Swiss authorities. The applicant was questioned by the authorities as to his request on 25 August 1989 at Chiasso in Switzerland and on 29 September 1989 by the Zurich authorities. On 1 November 1989 the Delegate for Refugees (Delegierter für das Flüchtlingswesen) dismissed the applicant's request for asylum and ordered him to leave Switzerland within five days after the decision had obtained legal force. In the decision the Delegate for Refugees first considered that there existed doubts as to the applicant's alleged political engagements, in particular, as he had given incorrect descriptions of various aspects of the TKP and TKP/ML Party. The Delegate further found various inconsistencies in the applicant's submissions, for instance as to his arrests in 1987 and 1988. The Delegate also noted that, if the Turkish authorities had intended to arrest the applicant, they could have done so until April 1988 until which date the applicant still lived with his family. Thereafter, despite the alleged danger of arrest the applicant still spent 16 months in Turkey, even working on building sites. The Delegate also considered that the applicant had himself applied for a passport with the Turkish authorities without being arrested. If, as the applicant alleged, the passport was obtained by means of bribery, it would not have been made out in his own name. Finally, the Delegate noted that the applicant had left Turkey via Istanbul airport. If the applicant was wanted by the Turkish authorities, even if he had bribed an official, he could have been arrested at one of the several airport controls. The applicant filed an appeal (Beschwerde) against this decision in which he submitted a warrant of arrest issued by the Turkish authorities against him. This appeal was communicated to the Delegate for Refugees who in his observations qualified the warrant of arrest as a forged document. The applicant replied thereto inter alia that the applicant's lawyer had received the original warrant of arrest directly from a Court at Adana in Turkey. Moreover, the document was clearly valid, although a signature of the Court Secretary was missing. On 26 January 1990 the appeal was dismissed by the Federal Department of Justice and Police (Eidgenössisches Justiz- und Polizeidepartement) which upheld the considerations of the Delegate for Refugees. With regard to the warrant of arrest submitted by the applicant, the Department concluded that the document was forged. The Department noted inter alia that the applicant had handed in an original document which normally went to the authorities rather than to the person to be arrested. Moreover, such a document would imply that criminal proceedings had been instituted against the applicant which he himself did not allege. Furthermore, the document was incomplete in that a signature was missing. COMPLAINTS 1. The applicant now complains under Article 3 of the Convention of his imminent explusion to Turkey. He claims that he is wanted in Turkey as he belonged to the marxist-leninist TKP/ML party. Upon his return to Turkey he would thus be arrested. Experience moreover showed that he would then be subjected to torture and inhuman treatment contrary to Article 3 of the Convention. 2. The applicant further complains, apparently under Article 6 of the Convention, that the proceedings before the Swiss authorities were unfair in that he was not sufficiently heard. He complains in particular that the Federal Department of Justice and Police, in its decision of 26 January 1990, qualified the warrant of arrest as a forged document without giving him the opportunity to present further evidence. PROCEEDINGS BEFORE THE COMMISSION The applicant was introduced on 14 February 1990 and registered on 26 February 1990. On 20 February 1990 the President decided not to apply Rule 36 of the Commission's Rules of Procedure. THE LAW 1. 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 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. 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). In the present case the applicant has referred before the Commission mainly to general experience in order to substantiate his allegation that upon his return to Turkey he will be subjected to treatment contrary to Article 3 (Art. 3) of the Convention. Insofar as the applicant may be understood as referring to the submissions he made before the Swiss authorities, the Commission notes that the latter found various inconsistencies in the applicant's statements. In particular, the Swiss authorities considered that the applicant had been able to live with his family after being released from his arrest in February 1988 until April 1988, and that thereafter, although a warrant of arrest had allegedly been issued against him, he still would have spent 16 months in Turkey, occasionally working on building sites. They also noted the applicant's statement that he had been able to leave Turkey via Istanbul airport where he had to pass several controls of the Turkish authorities. The Swiss authorities further considered that the warrant of arrest submitted by the applicant in the appeal proceedings was forged inter alia as one signature was missing. As a result, the Commission considers that the applicant's submissions raise certain doubts as to their accuracy. 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 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 Turkey authorities. This part of the application 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, apparently under Article 6 para. 1 (Art. 6-1) of the Convention, of unfairness of the asylum proceedings, in particular before the Federal 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 alien's rights or obligations or of a criminal charge within the meaning of Article 6 para. (Art. 6-1) 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. Deputy Secretary to the Commission President of the Commission (J. RAYMOND) (C.A. NØRGAARD)