38789/97

 AS TO THE ADMISSIBILITY OF Application No. 38789/97 by Abuka MOSIMI against Switzerland The European Commission of Human Rights sitting in private on 22 January 1998, the following members being present: MM J.-C. GEUS, Acting President S. TRECHSEL E. BUSUTTIL G. JÖRUNDSSON A.S. GÖZÜBÜYÜK A. WEITZEL J.-C. SOYER H. DANELIUS F. MARTINEZ C.L. ROZAKIS Mrs J. LIDDY MM L. LOUCAIDES 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 M. VILA AMIGÓ Mrs M. HION MM R. NICOLINI A. ARABADJIEV Mr M. de SALVIA, 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 21 November 1997 by Abuka Mosimi against Switzerland and registered on 27 November 1997 under file No. 38789/97; 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 applicant, a citizen of the Democratic Republic of Congo born in 1959, resides in Zürich. Before the Commission she is represented by Mr M. Kellenberger, a legal adviser practising in Zürich. The facts of the case, as submitted by the applicant, may be summarised as follows. Until 1995 the applicant lived in the former Republic of Zaire. In 1989, she became Committee secretary to the "Mouvement des mamans catholiques" of the St Ciprien parish close to the Tshatsi military camp. At the monthly meetings, where the applicant would take the floor, women from the camp met and often criticised the former Government. It transpires that in 1993, during her absence, unknown persons went to her home looking for her. Her house was searched and ransacked and bullets were found in the walls. Out of fear the applicant fled towards the end of 1993 to her house in Mont-Ngafula where she apparently resided for some time. In August 1994, a woman from the Tshatsi camp advised her to be prudent. Reference was made in particular to her speeches in the parish in which she urged the wives of military staff not to follow orders. On 25 June 1995 the applicant was asked by another woman to hold a speech in a neighbouring parish. When travelling together by car, they were stopped by two persons, and the applicant was asked to get out. She was brought to an unknown place where she was questioned and then beaten. The applicant became unconscious and woke up after a coma of three days in a hospital. It transpires that a hospital doctor advised her to feign a coma as unknown persons had inquired about her. On 10 July 1995, the applicant fled from hospital with the help of her brother-in-law and went into hiding. On 17 August 1995 the applicant left the country. Travelling via Congo-Brazzaville, Russia and Italy, she entered Switzerland on 6 September 1995. On 19 September 1995 the applicant filed a request for asylum, claiming persecution in her home country. She was heard by the Swiss authorities on 8 and 19 December 1995. On 13 August 1997, the Federal Office for Refugees (Bundesamt für Flüchtlinge) dismissed the applicant's request and ordered the applicant to leave Switzerland. In its decision, the Office found the applicant's submissions as to the various events unconvincing. For instance, it did not appear credible that the persons concerned would have searched for her in her absence, yet had not looked for her when she was present, for instance at the parish meetings. The Office also referred to the change of government in Congo after the applicant had left. The applicant's appeal was dismissed by the Swiss Asylum Appeals Commission (Schweizerische Asylrekurskommission) on 23 October 1997 which confirmed the grounds given by the Federal Office. The Appeals Commission noted, inter alia, that, after political parties had been admitted in former Zaire, the Government had been criticised at many mothers' meetings. It was further noted that after the change of Government there was no general situation of violence in Congo, and there were no indications that the applicant would be subjected to a particular danger upon her return. By letter of 30 October 1997 the Federal Office for Refugees requested the applicant to leave Switzerland not later than 31 January 1998. COMPLAINTS The applicant complains that upon her return she will be subjected to inhuman treatment and torture contrary to Article 3 of the Convention. She requests asylum in Switzerland or at least that her stay should be tolerated on humanitarian grounds. The applicant also requests the Commission to grant suspensive measures. Under Article 6 of the Convention the applicant complains of the asylum proceedings in which she was involved. For instance, she was not duly heard, and the decisions were incorrect. THE LAW 1. The applicant complains that upon her return to Congo she will be subjected to inhuman treatment and torture contrary to Article 3 (Art. 3) of the Convention. This provision 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, for example 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, p. 1831, 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 applicant. However, the Commission notes that the applicant has not provided any substantiation of her fears concerning ill-treatment upon her return to the Democratic Republic of Congo. It has furthermore not been contended that the inhuman treatment allegedly suffered by the applicant emanated from the authorities, or that upon her return such treatment also had to be feared from the authorities of the new Government of the Democratic Republic of Congo. The Commission also notes the domestic authorities' conclusion according to which the applicant's submissions as to the various events did not appear credible. As a result, the applicant has failed to show that upon her return to the Democratic Republic of Congo she 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 applicant complains under Article 6 (Art. 6) of the Convention of the asylum proceedings in which she was involved and their outcome. She complains in particular that she was not duly heard. 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 applicant was "lawfully resident" in Switzerland within the meaning of this provision, the Commission finds that her 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). 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. M. de SALVIA J.-C. GEUS Secretary Acting President to the Commission of the Commission