39409/98

 AS TO THE ADMISSIBILITY OF Application No. 39409/98 by B. P. against Switzerland The European Commission of Human Rights sitting in private on 23 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 Mrs G.H. THUNE Mr C.L. ROZAKIS Mrs J. LIDDY MM L. LOUCAIDES B. MARXER 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 9 October 1997 by B. P. against Switzerland and registered on 19 January 1998 under file No. 39409/98; 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, formerly a citizen of Yugoslavia and born in 1961, is a student residing in Zürich in Switzerland. The facts of the case, as submitted by the applicant, may be summarised as follows. Particular circumstances of the case Before travelling to Switzerland in 1991, the applicant lived in a part of Yugoslavia which later became Bosnia-Herzegovina. Upon her arrival in Switzerland, she was granted short-term residence permissions (Kurz-Aufenthaltsbewilligungen) in view of the war in Bosnia-Herzegovina. Such permissions were granted collectively by the Swiss Government (Bundesrat) to a number of persons in similar situations. On 3 April 1996 the Swiss Government decided no longer to grant such collective residence permissions. The applicant's situation was then examined by the Aliens' Police (Fremdenpolizei) of the Canton of Zürich which on 6 March 1997 ordered her to leave Switzerland before 30 April 1997. On 12 March 1997 the applicant filed a request for a residence permission which was rejected on 20 March 1997 by the Aliens' Police of the Canton of Zürich. The applicant filed an appeal against this decision, whereupon she was informed on 25 April 1997 that the Aliens' Police would reconsider its previous decision. On 30 April 1997 the Aliens' Police of the Canton of Zürich ordered the applicant to leave Switzerland before 31 May 1997, as she did not meet the requirements for a residence permit. The decision stated that an appeal could be filed within 20 days with the Government (Regierungsrat) of the Canton of Zürich. On 23 May 1997 the Federal Office for Refugees (Bundesamt für Flüchtlinge) informed the applicant that she had to organise her departure. Reference was made in the letter to a voluminous programme of assistance prepared by the Swiss authorities for persons in the applicant's situation, and to an address where she could obtain further information in this respect. It appears that on 26 May 1997 the applicant filed an appeal with the Police Directorate (Polizeidirektion) of the Government of the Canton of Zürich against the decision of 30 April 1997, and that no decision has so far been given. Relevant domestic law and practice According to S. 84 of the Federal Judiciary Act (Organisations- gesetz), a public law appeal (staatsrechtliche Beschwerde) may be filed with the Federal Court (Bundesgericht) against all cantonal acts and decisions. This remedy serves to complain about breaches of constitutional and Convention rights. Based on S. 4 of the Swiss Federal Constitution (Bundesverfas- sung), it is possible to complain about procedural inactivity, or delays, by a particular judicial or administrative body before the higher authority, and in last resort before the Federal Court (Rechtsverweigerungs- bzw. Rechtsverzögerungsbeschwerde). COMPLAINTS 1. The applicant complains under Article 3 of the Convention of her prospective return to Bosnia-Herzegovina. She submits that she is catholic, and that she was forcefully driven out of her home town which is now controlled by Serb forces. Indeed, a Serb family is now living in her former flat. Her parents and relatives were severely ill- treated. On the whole, there is no legal protection in Bosnia- Herzegovina. Under Article 1 of Protocol No. 7 the applicant further complains that her case was not examined upon appeal. 2. The applicant also complains under Article 3 of the Convention of ill-treatment on the part of the Swiss authorities, and of the degrading life as a refugee in Switzerland. THE LAW 1. The applicant complains under Article 3 (Art. 3) of the Convention of her prospective return to Bosnia-Herzegovina where there is no legal protection for her. Under Article 1 of Protocol No. 7 (P7-1) the applicant complains that her case was not examined upon appeal. Article 3 (Art. 3) of the Convention states: "No one shall be subjected to torture or to inhuman or degrading treatment or punishment." Article 1, para. 1 of Protocol No. 7 (P7-1-1) to the Convention states: "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, under Article 26 (Art. 26) of the Convention, "the Commission may only deal with the matter after all domestic remedies have been exhausted according to the generally recognised rules of international law". In the present case, the applicant has not shown that, after the Aliens' Police of the Canton of Zürich gave its decision on 30 April 1997, she obtained upon appeal a decision of the Government of the Canton of Zürich and, in last resort, of the Federal Court on the complaints she is now raising before the Commission. It is true that the applicant further complains that, although she filed an appeal, it was not examined. However, under Swiss law it is possible in such situations to file a complaint, based on S. 4 of the Swiss Federal Constitution, about procedural inactivity by a judicial or administrative body before the higher authority, and in last resort before the Federal Court. The applicant has not shown that she filed such a complaint. The applicant has not, therefore, complied with the requirements as to the exhaustion of domestic remedies, and this part of the application must be rejected under Article 27 para. 3 (Art. 27-3) of the Convention. The complaints under Article 3 (Art. 3) of the Convention would in any event also be inadmissible for the following reasons. 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). However, 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, it notes that before the Commission, apart from referring to the fact that her former flat is now occupied by other persons, the applicant has not provided any substantiation of her fears concerning ill-treatment upon her return to Bosnia-Herzegovina. The Commission further notes that on 23 May 1997 the Federal Office for Refugees drew the applicant's attention to a voluminous programme of assistance prepared by the Swiss authorities for persons in the applicant's situation. As a result, the applicant has failed to show that upon her return to Bosnia-Herzegovina 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 would, therefore, also be manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. 2. The applicant also complains under Article 3 (Art. 3) of the Convention of ill-treatment on the part of the Swiss authorities, and of her situation as a refugee in Switzerland. However, the applicant has not shown that she raised this complaint before the Swiss authorities, and in last resort before the Federal Court. As a result, she has not complied with the requirements under Article 26 (Art. 26) of the Convention as to the exhaustion of domestic remedies. The remainder of the application must, therefore, also be rejected under Article 27 para. 3 (Art. 27-3) 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