21840/93

 AS TO THE ADMISSIBILITY OF Application No. 21840/93 by M.Y., F.Y., B.Y. and S.Y. against Switzerland The European Commission of Human Rights sitting in private on 14 May 1993, the following members being present: MM. C.A. NØRGAARD, President J.A. FROWEIN S. TRECHSEL G. SPERDUTI E. BUSUTTIL A.S. GÖZÜBÜYÜK A. WEITZEL J.-C. SOYER H.G. SCHERMERS H. DANELIUS Mrs. G.H. THUNE Sir Basil HALL MM. F. MARTINEZ C.L. ROZAKIS Mrs. J. LIDDY MM. J.-C. GEUS M.P. PELLONPÄÄ B. MARXER G.B. REFFI M.A. NOWICKI I. CABRAL BARRETO Mr. M. de SALVIA, 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 7 May 1993 by M.Y., F.Y., B.Y. and S.Y. against Austria and registered on 13 May 1993 under file No. 21840/93; 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 facts of the case, as submitted by the applicants, may be summarised as follows: The first applicant was born in 1952. The second applicant, born in 1963, is his wife. The third applicant, born in 1982, and the fourth applicant, born in 1986, are their children. The applicants are Turkish citizens. Before the Commission they are represented by Mr H. Vest, a lawyer practising in Aesch in Switzerland. I. The applicants make the following factual claims: In 1988 the applicants were residing at Alcicek in the Elbistan district in the Kahramanmaras province. Towards the end of 1988 the first applicant commenced his support of the Kurdish Workers' Party, the PKK. Thus, he had to provide, or pass on, food, money and information. Eventually, a member of the PKK was arrested; under torture he mentioned the names of various other persons, including the first applicant. The latter was then arrested and brought to the Nurhak police station, where he was detained for 24 hours. During this period he was beaten and ill-treated with cold water. Subsequently, he was released for lack of evidence. On 8 March 1989 he was again arrested by the police and brought to the Elbistan police station, where he was detained for three days. During this period he was again ill-treated. Subsequently, he was released for lack of evidence. It appears that thereafter the first applicant had to stay in bed for three or four days. In July 1989 another PKK member revealed under torture the first applicant's name. As a result, the applicants' house was searched by the authorities. However, only the second applicant was present. The authorities confiscated material pertaining to the PKK as well as a photo of the first applicant. The second applicant had to sign a document and was then brought to the police station where she was beaten. Thereafter, the applicants' house was constantly under surveillance. The first applicant went into hiding in Izmit and later in Adapazari. Meanwhile PKK members apparently killed two persons in Alcicek who had betrayed the organisation. The authorities also installed a permanent post in the school house of Alcicek. In view thereof the applicants decided to leave Turkey. II. The applicants left Turkey on 7 December 1989. They entered Switzerland on 11 December 1989 and applied for asylum. On 12 December 1989, when questioned by the Swiss asylum authorities, the applicants claimed that they had been persecuted in Turkey in view of their support of the PKK. The applicants were again questioned on 12 January 1990 and 20 October 1992. On 25 November 1992 the Federal Office for Refugees dismissed the applicants' requests for asylum. In its decision the Federal Office considered in the light of various contradictions that the applicants' submissions lacked credibility. For instance, while the first applicant had originally claimed that he had been a member of the PKK, he later denied this. Originally he had stated that he had been arrested together with three persons; later he stated that eight to ten persons had been arrested. Moreover, originally he stated that while hiding in Izmit he had telephoned his wife; later he claimed that this had not been the case. The Federal Office further noted that no court proceedings had been instituted against the first applicant in Turkey. The second applicant had moreover not been able to substantiate her claims. Insofar as the applicant had submitted letters of various persons supporting his claims, these statements did not coincide with the applicants' previous submissions for which reason they had to be considered as partisan (Gefälligkeitsschreiben). The applicants filed an appeal against this decision to the Swiss Asylum Appeals Commission (Schweizerische Asylrekurskommission) in which they claimed inter alia that, contrary to the conclusions of the Federal Office, the first applicant had not contradicted himself. The applicants' appeal was dismissed by the Asylum Appeals Commission on 23 March 1993. The Appeals Commission found that the applicants' appeal submissions could not change the conclusions of the Federal Office. Had the first applicant worked so closely with the PKK, court proceedings would most certainly have been introduced against him. Insofar as the applicants submitted newspaper articles, these failed to demonstrate an individual danger to the applicants. The applicants have been ordered to leave Switzerland by 15 July 1993. COMPLAINTS 1. The applicants complain under Article 3 of the Convention of the order to leave Switzerland. They claim that the first applicant, upon his return to Turkey, will immediately be arrested, tortured and prosecuted for having supported the PKK. The applicants point out that the first applicant was twice arrested, detained and ill-treated on account of his activities for the PKK. The applicants have submitted official documents according to which one political friend of the first applicant, H.V., was killed in a clash (bei einem Zusammenstoss) by the security forces in 1991; another PKK member, A.B., was killed by the military forces in 1992. The applicants have further submitted letters of various persons from Alcicek and surroundings who can confirm that the first applicant worked for the PKK. They have also submitted newspaper articles according to which the authorities have vacated Alcicek and deported all persons supporting the PKK. 2. The applicants complain under Article 6 of the Convention of the manner in which the authorities dealt with their case in the asylum proceedings. 3. Under Article 8 of the Convention the applicants claim that if the first applicant cannot be expected to return to Turkey, this must also apply to the second, third and fourth applicants who are family members. 4. Under Article 13 of the Convention the applicants complain that in view of the manner in which their case was dealt with by the authorities they did not have an effective remedy at their disposal. 5. Finally, the applicants submit that their asylum requests were apparently dismissed as they are unwanted foreigners and members of a suppressed ethnic minority (wenn das Asylgesuch eines Ausländers letzlich deshalb abgewiesen wird, weil er unerwünschter Ausländer und Angehöriger einer unterdrückten ethnischen Minderheit ist). This situation contravenes Article 14 of the Convention. THE LAW 1. The applicants complain that they have been ordered to leave Switzerland. They allege that upon their return to Turkey they will be subjected to ill-treatment contrary to Article 3 (Art. 3) of the Convention. 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 fear of treatment contrary to Articles 2 or 3 (Art. 2, 3) of the Convention in the country to which the person is to be expelled (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, p. 32 et seq., para. 81 et seq.). In the present case the Commission notes that the Federal Office for Refugees in its decision of 25 November 1992 dismissed the applicants' requests for asylum, inter alia, in view of their contradictory statements made when questioned by the Swiss authorities. In their subsequent appeal the applicants pointed out that in fact the first applicant had not contradicted himself. However, the Commission need not resolve this issue since this part of the application is inadmissible for the following reasons: The Commission observes that the second applicant has not provided any substantiation for her allegation that upon her return to Turkey she would be treated in a manner contrary to Article 3 (Art. 3) of the Convention. The first applicant, on the other hand, has provided statements of various persons of Alcicek and surroundings who knew him, as well as documents demonstrating that certain persons died in clashes with the authorities. However, the first applicant does not claim that any criminal proceedings against him are pending or that any warrant for his arrest has been issued. In the Commission's opinion the first applicant has not sufficiently demonstrated that, in view of his support of the PKK, he was tortured or ill-treated by the authorities; or that upon his return to Turkey he will risk such treatment. Insofar as the applicants refer to clashes with the authorities in the area where they lived, and to various newspaper articles concerning the situation in Alcicek, the Commission recalls that the mere possibility of ill-treatment on account of the unsettled general situation in a country is in itself insufficient to give rise to a breach of Article 3 (Art. 3) of the Convention (see Eur. Court H.R., Vilvarajah and others judgment of 30 October 1991, Series A no. 215,

p. 37, para. 111). In the present case the applicants have not shown that upon their return to Turkey they could not take up residence in other parts of the country. The Commission finds therefore that the applicants have failed to show that, upon their return to Turkey, they would face a real risk of being subjected to treatment contrary to Article 3 (Art. 3) of the Convention. It follows that this part of the application is manifestly ill- founded within the meaning of Article 27 para. 2 (art.(Art. 27-2) of the Convention. 2. The applicants complain under Article 6 (Art. 6) of the Convention of the manner in which the authorities dealt with their case in the asylum proceedings. 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 civil rights or obligations or of a criminal charge 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. 3. The applicants complain that, if the first applicant cannot be expected to return to Turkey, this must also apply to the second, third and fourth applicants who are family members. The applicants rely on Article 8 (Art. 8) of the Convention which guarantees to everyone, inter alia, "the right to respect for his ... family life". However, the Commission has just found that the applicants have failed to show that, if they returned to Turkey, they would face a real risk of being subjected to treatment contrary to Article 3 (Art. 3) of the Convention. Hence, no issue of a separation of family members arises. It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. 4. Insofar as the applicants complain under Article 13 (Art. 13) of the Convention that they did not have an effective remedy at their disposal, the Commission notes that the applicants' request for asylum was dealt with by the Federal Office for Refugees and, upon appeal, by the Swiss Asylum Appeals Commission. Hence, the applicants had an effective remedy at their disposal within the meaning of Article 13 (Art. 13) of the Convention. This part of the application is therefore also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. 5. Finally, the applicants complain under Article 14 (Art. 14) of the Convention that their requests for asylum were dismissed as they are unwanted foreigners and members of a suppressed ethnic minority. However, the Commission finds no evidence in the case-file which could substantiate such an allegation under this provision. It follows that the remainder of the application is 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. Deputy Secretary to the Commission President of the Commission (M. de Salvia) (C.A. Nørgaard)