Lexploria

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

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B.P. v. SWITZERLAND

B.P. v. SWITZERLAND

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