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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

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MOSIMI v. SWITZERLAND

MOSIMI v. SWITZERLAND

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