Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 37718/97

by P. A.

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 21 August 1997 by

P. A. against Switzerland and registered on 10 September 1997 under

file No. 37718/97;

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 Kosovo in Yugoslavia born in 1947,

resides in Susten in Switzerland.

The facts of the case, as submitted by the applicant, may be

summarised as follows.

The applicant has been residing in Switzerland since 1972, though

on various occasions he has returned to Yugoslavia, in particular

between 1990 and 1994. In 1972 and 1973 he was in Switzerland as a

seasonal worker, from 1974 until 1980 he had a residence permit

(Aufenthaltsbewilligung), as from 1984 to 1990 he was again a seasonal

worker. His wife and one child as well as his parents, brothers and

sisters reside in Yugoslavia, a further child resides in Germany.

The applicant left his home country in 1995 by walking to

Albania, travelling to Italy, and entering Switzerland by evading the

border control.

On 5 October 1995 the applicant filed a request for asylum in

Switzerland. He was heard by the Swiss authorities on the same day,

and again on 22 December 1995. The applicant explained to the Swiss

authorities that the Serb police had come twice a week to his home to

inquire where he was. The applicant saw political reasons herefor, in

particular that he had won compensation proceedings against the

Yugoslav Government. Moreover, the nephew of the President of Kosovo

had married his, the applicant's, daughter, though he and the President

were no longer on amicable terms. The applicant admitted that when

returning to his home country after 1990 he had spent up to four days

at his home. In respect of alleged ill-treatment in Yugoslavia he

stated that "he had been beaten a couple of times and detained up to

three weeks by the Serb police".

On 7 February 1996 the Federal Office for Refugees (Bundesamt für

Flüchtlinge) dismissed the applicant's request for asylum. He filed

an appeal in which he referred, inter alia, to a letter of 11 February

1992 addressed to him by the Yugoslav Consulate General in Zürich. The

letter stated:

"The territorial army authorities of the Municipal Assembly of

Suva Reka have requested us to inform you of your being enrolled

as well of your obligations according to the law on military

service. As you have left without a formal authorisation,

corresponding legal measures may be taken against you. You are

requested immediately upon receipt of this letter to report to

the Consulate General."

The applicant's appeal was dismissed by the Swiss Asylum Appeals

Commission (Schweizerische Asylrekurskommission) on 15 April 1996. The

Appeals Commission noted, inter alia, that the applicant's fears were

contradicted by the fact that since 1990 he had regularly and

voluntarily returned to his home country. Moreover, upon his first

questioning by the Swiss authorities he had not immediately mentioned

that he had been detained and ill-treated. When questioned the second

time, he had not at all mentioned his detention. The applicant had

also not sufficiently substantiated that criminal proceedings would be

instituted against him as he had deserted from the army. The Appeals

Commission noted in particular that the applicant had only submitted

a copy of the letter of 11 February 1992 and that manipulations could

therefore not be excluded.

COMPLAINTS

Insofar as it can be determined from the applicant's submissions,

he complains, without reference to any particular provision of the

Convention, of his expulsion to Yugoslavia where he has been ill-

treated by the police and is wanted on political grounds. He claims

that his family is being persecuted, and that when he was in

Yugoslavia, he occasionally had to flee to his aunt who lives in the

Former Yugoslav Republic of Macedonia. He fears that upon his return

he will be remanded in custody and ill-treated.

THE LAW

The applicant complains of his expulsion to Yugoslavia where he

will allegedly be ill-treated.

The Commission has examined this complaint 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."

However, under Article 26 (Art. 26) of the Convention the

Commission "may only deal with the matter ... within a period of six

months from the date on which the final decision was taken".

In the present case, the Swiss Asylum Appeals Commission

dismissed the applicant's appeal on 15 April 1996, whereas the present

application was introduced on 21 August 1997, that is, more than six

months after the date of this decision. The application has, therefore

been introduced out of time and must be rejected under Article 27

para. 3 (Art. 27-3) of the Convention.

The application 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, 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).

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.

The applicant has submitted in support of his allegations a copy

of a letter of the Yugoslav Consulate General in Zürich according to

which the applicant had apparently left the army without authorisation,

and that certain measures could be taken against him.

The Commission need not examine whether this letter dated

11 February 1992 is still of relevance. It suffices to note that after

the letter was prepared the applicant voluntarily returned to his home

country, and was even able to stay at his home. It is true that the

applicant submits that during his stay in Yugoslavia he was detained

and ill-treated by the police. However, he has not provided any

substantiation herefor either before the Commission or the Swiss

authorities.

As a result, the applicant has failed to show that upon his

return to Yugoslavia he would face a real risk of being subjected to

treatment contrary to Article 3 (Art. 3) of the Convention.

The application would therefore also be 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

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P.A. v. SWITZERLAND

P.A. v. SWITZERLAND

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