22794/93

 AS TO THE ADMISSIBILITY OF Application No. 22794/93 by K.Y. against Switzerland The European Commission of Human Rights sitting in private on 22 October 1993, the following members being present: MM. C.A. NØRGAARD, President A. WEITZEL E. BUSUTTIL A.S. GÖZÜBÜYÜK J.-C. SOYER H.G. SCHERMERS H. DANELIUS C.L. ROZAKIS Mrs. J. LIDDY MM. J.-C. GEUS M.P. PELLONPÄÄ B. MARXER M.A. NOWICKI I. CABRAL BARRETO B. CONFORTI N. BRATZA 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 13 October 1993 by K.Y. against Switzerland and registered on 20 October 1993 under file No. 22794/93; 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 applicant, may be summarised as follows: The applicant, a Turkish citizen born in 1960, currently resides at Lutzenberg in Switzerland. Before the Commission he is represented by Mr. C. Bernhart, a lawyer practising at St. Gallen in Switzerland. I. According to the applicant's submissions to the Swiss authorities, he was an Alevit. He claimed that Alevits in Turkey were open to discrimination and persecution by the authorities, leading to deprivation of liberty and assaults on their bodily integrity. Thus, in 1980 his father was killed. In 1987 his brother disappeared and it must be feared that he is also dead. Since 1980 the applicant sympathised with the TKEP (Türkiye Komünist Emekciler Partisi). For the TKEP he kept and distributed journals, for which reason he was occasionally arrested. In 1986 he was again arrested and detained for 59 days in Gaziantep without being brought before a judge. While questioned by the police he was regularly tortured. He was released as he did not make any incriminating statements. On 1 December 1989 the police searched his house during his absence and found incriminating journals. He then decided to leave the country in view of renewed detention and torture. II. The applicant left Turkey on 3 January 1990 and arrived in Switzerland on 8 January 1990. On 17 January 1990 he applied for asylum. On the same day he was questioned by the Office of the Delegate for Refugees (Delegierter für das Flüchtlingswesen). He was again questioned by the cantonal authorities on 19 February 1990, and by the Federal Office for Refugees (Bundesamt für Flüchtlinge) on 17 December 1992. On 29 March 1993 the Federal Office for Refugees dismissed the applicant's request. It found, inter alia, that the applicant had not sufficiently demonstrated that he had worked for the TKEP. The Federal Office also noted various contradictions in the applicant's statements which called in question the dangers he alleged. Thus, on one occasion the applicant had explained that he had been arrested and detained seven to eight times between 1980 and 1989; on another occasion he had stated that he had been arrested for the first time in 1986, and thereafter arrested between thirty and forty times. The applicant's appeal was dismissed by the Swiss Appeals Commission in Matters of Asylum (Schweizerische Asylrekurskommission) on 13 August 1993. The Appeals Commission found that, in view of the many contradictions in the applicant's statements, he had not credibly established that he had worked for the TKEP, or that he had been arrested and detained by the authorities. He had also contradicted himself in respect of the date of his father's death: once he had claimed that his father had died in 1980; another time he claimed he had worked for his father in 1986, and had been with him in 1989. There were also contradictions as to the events on 1 December 1989 when the applicant's house was searched. III. Before the Commission the applicant has submitted the photocopy of a document in Turkish, which includes the copy of a rubber stamp mark of the District Commander of Yavuzeli. The applicant has submitted a German translation thereof prepared by a St. Gallen bookshop and dated 8 October 1993. The translation reads as follows: "From: The District Commander in Yavuzeli, to: The head of the village Kuzu Yatagi. The below mentioned persons participated between 1980 and 1990 on various dates in illegal activities. You are hereby ordered that of these persons: - M.G. (there follow particulars as to the parents and the birthday) - (the applicant) ... - S.G. ... - H.D. ... - S.G. ... information should at once be given to our police office. Otherwise, proceedings will be instituted against you for disregarding your office. For your information." COMPLAINTS The applicant complains under Article 3 of the Convention that nobody shall be submitted to torture or inhuman or degrading treatment. The application continues: "The applicant must leave Switzerland before 15 November 1993. He risks expulsion to Turkey, arrest and torture. A warrant of arrest has been issued against the applicant. Upon his last stay in prison there is evidence that he was tortured." THE LAW 1. The applicant complains of his imminent expulsion to Turkey where allegedly he will be subjected to 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 and well-founded 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., paras. 81 et seq.). 2. The Commission notes that after the Appeals Commission in Matters of Asylum dismissed the applicant's appeal on 13 August 1993, the applicant obtained, on 8 October 1993, the translation of an undated warrant of arrest. The applicant apparently regards this document as relevant. However, it appears that the applicant did not submit it to the Swiss authorities during the asylum proceedings. The Commission recalls its case-law according to which requests in Switzerland for the reconsideration of decisions which have already entered into force constitute an effective remedy within the meaning of Article 26 (Art. 26) of the Convention if circumstances are invoked which were unknown at the time of the final decision (see No. 18079/91, X. v. Switzerland, Dec. 4.12.91, to be published in D.R.; No. 22406/93, Dec. 10.9.93, unpublished). In the present case the Commission considers in the light of the above case-law that the applicant could have been expected to submit the copy of the warrant of arrest to the Federal Office for Refugees and request reconsideration of the decision to expel him. However, he failed to do so. In this respect, therefore, the applicant has not complied with the condition as to the exhaustion of domestic remedies. This part of the application must be rejected under Article 27 para. 3 (Art. 27-3) of the Convention. 3. In any event, the application would also have to be declared inadmissible as a whole as being manifestly ill-founded for the following reasons: The Commission considers at the outset 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 only evidence submitted by the applicant to the Commission is the copy of a warrant of arrest. However, this document is not dated; no reference is made to any offences allegedly committed by the applicant and there is no order to arrest and detain the applicant; the only threat was directed at the head of the village. This document cannot, in the Commission's view, serve to confirm the applicant's fears. Furthermore, the applicant has not referred to any other evidence which he submitted to the domestic authorities in order to corroborate his claims. The Commission has therefore had regard to the decisions of the Swiss authorities, in particular of the Federal Office for Refugees of 29 March 1993, and of the Swiss Appeals Commission in Matters of Asylum of 13 August 1993. The Commission notes that the authorities carefully examined the applicant's allegations. The Commission does not find it unreasonable for the authorities, in view of various contradictions in the applicant's statements, to consider that he had not credibly established that he had worked for the political party concerned or that he had been arrested and detained by the Turkish authorities. The applicant has failed to show that upon his return to Turkey he would face a real risk of being subjected to treatment contrary to Article 3 (Art. 3) of the Convention. The application is therefore 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)