37723/97

 AS TO THE ADMISSIBILITY OF Application No. 37723/97 by P. M. and G. M. against Switzerland The European Commission of Human Rights sitting in private on 18 September 1997, the following members being present: Mrs. G.H. THUNE, Acting President Mr. S. TRECHSEL Mrs. J. LIDDY MM. E. BUSUTTIL G. JÖRUNDSSON A.S. GÖZÜBÜYÜK A. WEITZEL J.-C. SOYER H. DANELIUS F. MARTINEZ C.L. ROZAKIS L. LOUCAIDES J.-C. GEUS M.P. PELLONPÄÄ M.A. NOWICKI I. CABRAL BARRETO B. CONFORTI N. BRATZA I. BÉKÉS J. MUCHA D. SVÁBY G. RESS A. PERENIC C. BÎRSAN P. LORENZEN K. HERNDL E. BIELIUNAS E.A. ALKEMA Mrs. M. HION MM. R. NICOLINI A. ARABADJIEV 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 25 July 1997 by P. M. and G. M. against Switzerland and registered on 10 September 1997 under file No. 37723/97; 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 applicants, mother and son, are citizens of the Democratic Republic of Congo (formerly Zaire) born in 1970 and 1997, respectively. They reside in Murgenthal in Switzerland. Before the Commission they are represented by Mr Kellenberger, a legal adviser practising in Zürich. The facts of the case, as submitted by the applicants, may be summarised as follows. The first applicant left Zaire on 20 October 1996 and entered Switzerland on 25 October 1996 where on the same day she requested asylum. She was questioned by the Swiss authorities on 13 November and 9 December 1996. The first applicant submitted that, while in Zaire, her life companion had made propaganda for the "Parti Lumumbiste Unifié" (PALU) of which he was a member. On 29 July 1995 he was taken away from his home by armed persons and never seen again. In May 1996, men again turned up and asked the first applicant as to the whereabouts of her life companion. On 20 July 1996 certain persons appeared and asked her about her life companion. She was then raped, beaten and her knees were injured, and her television and radio were stolen. She then fled the country. On 27 March 1997 the Federal Office for Refugees (Bundesamt für Flüchtlinge) dismissed the applicant's request. It noted that on 29 July 1995 a demonstration of PALU had taken place in Kinshasa in Zaire, though the name of the applicant's life companion did not appear on the lists of the victims of the demonstration later published by PALU and a Zairean human rights organisation. As a result, the disadvantages suffered by the first applicant did not appear credible. On 26 April 1997 the first applicant's lawyer filed an appeal in which she stated that she was pregnant, and that the pregnancy resulted from her having been raped. She also stated that it had not crossed her mind to report her life companion's abduction to PALU. On 9 June 1997 the second applicant was born. On 7 July 1997 the Swiss Asylum Appeals Commission (Schweizerische Asylrekurskommission) dismissed the applicant's request. Insofar as the first applicant maintained in her appeal statement that she was pregnant, the Appeals Commission noted that she had failed to refer hereto when questioned by the authorities on 13 November and 9 December 1996 and that therefore it did not appear likely that there was a relationship between her pregnancy and her having been raped. The applicants were requested to leave Switzerland by 15 August 1997. COMPLAINTS 1. The applicants complain under Articles 2 and 3 of the Convention of their expulsion to the Democratic Republic of Congo. The first applicant points out that she was beaten, tortured and eventually raped and, as a result, became pregnant. The situation in the Democratic Republic of Congo is not at all stable, and the first applicant has been weakened by the birth of her child. 2. The applicants complain under Article 6 of the Convention that they were not duly heard in the domestic proceedings. PROCEEDINGS BEFORE THE COMMISSION The application was introduced on 25 July 1997. On 4 August 1997 the Acting President of the Commission decided not to apply Rule 36 of the Commission's Rules of Procedure. The application was registered on 10 September 1997. THE LAW 1. The applicants complain under Articles 2 and 3 (Art. 2, 3) of the Convention of their expulsion to the Democratic Republic of Congo. The first applicant submits that she was beaten and raped, and that she became pregnant as a result of her having been raped. The Commission has examined these complaints under Article 3 (Art. 3) of the Convention which states: "No one shall be subjected to torture or to inhuman or degrading treatment or punishment." According to the Convention organs' case-law, the right of an alien to reside in a particular country is not as such guaranteed by the Convention. Nevertheless, expulsion may in exceptional circumstances involve a violation of the Convention, where there is a serious and well-founded fear of treatment contrary to Article 3 (Art. 3) of the Convention in the country to which the person is to be expelled (see Eur. Court HR, Chahal v. United Kingdom judgment of 15 November 1996, Reports 1996-V, No. 22, paras. 72 ff). Nevertheless, 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 HR, Vilvarajah and others v. United Kingdom judgment of 30 October 1991, Series A no 215, p. 37, para. 111). The Commission has examined the circumstances of the present case as they have been submitted by the applicants. However, the Commission notes that the applicants have not provided any substantiation of their fears concerning ill-treatment upon their return to the Democratic Republic of Congo. It has not been contended that the inhuman treatment allegedly suffered by the first applicant emanated from the authorities, or that upon the applicants' return such treatment also had to be feared from the authorities of the new Government of the Democratic Republic of Congo. The Commission further notes the domestic authorities' conclusion according to which the first applicant's submissions concerning her life companion did not appear credible. Moreover, she had failed to refer to her pregnancy when questioned by the Swiss authorities on 13 November and 9 December 1996 and that therefore it was not found that there was a relationship between her pregnancy and her having been raped. As a result, the applicants have failed to show that upon their return to the Democratic Republic of Congo they would face a real risk of being subjected to treatment contrary to Article 3 (Art. 3) of the Convention. This part of the application is, therefore, manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. 2. The applicants complain under Article 6 (Art. 6) of the Convention that they were not duly heard in the domestic proceedings. However, Article 6 (Art. 6) of the Convention does not apply to such proceedings (see No. 8118/77, Dec. 19.3.81, D.R. 25, p. 105). The Commission has nevertheless examined this complaint under Article 1 of Protocol No. 7 (P7-1) to the Convention which states in para. 1: "An alien lawfully resident in the territory of a State shall not be expelled therefrom except in pursuance of a decision reached in accordance with law and shall be allowed: (a) to submit reasons against his expulsion, (b) to have his case reviewed, and (c) to be represented for these purposes before the competent authority or a person or persons designated by that authority." However, even assuming that the applicants were "lawfully resident" in Switzerland within the meaning of this provision, the Commission finds that the applicants' complaints do not disclose any appearance of a violation of the rights set out in Article 1 para. 1 of Protocol No. 7 (P7-1-1). The remainder of the application is therefore also 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. H.C. KRÜGER G.H. THUNE Secretary Acting President to the Commission of the Commission