Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 37719/97

by S. Z.

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 14 October 1995

by S. Z. against Switzerland and registered on 10 September 1997 under

file No. 37719/97;

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 is a citizen of Yugoslavia of Serb ethnic origin

born in 1964. An electrical engineer by profession, he resides in

Heiden in Switzerland in a home for persons seeking asylum.

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

summarised as follows.

The applicant left Yugoslavia and entered Switzerland on

28 August 1991. On 6 September 1991 he filed a request for asylum in

respect of which he was questioned by the authorities on 10 and

30 September 1991. The applicant submitted in particular that he had

not complied with an order to appear before the military authorities

to undertake military service and that he had fled the country instead.

On 15 December 1992 the Federal Office for Refugees (Bundesamt

für Flüchtlinge) dismissed the applicant's request. The Federal Office

considered that the applicant had not been able to substantiate his

fears in respect of his return to Yugoslavia. In particular it

transpired that the military order submitted by the applicant was

clearly falsified. Moreover, when entering Switzerland he had at first

hesitated to apply for asylum, and had only done so when he was unable

to find employment. The applicant had also submitted to the Swiss

authorities, on one occasion, that he had left Yugoslavia as he had

participated in a certain demonstration, and on another, that he had

worked as an assistant at Nis University until his departure.

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

Commission (Schweizerische Asylrekurskommission) on 28 October 1994.

It considered that even laymen could see that the stamp (Stempel) used

for the military order was falsified, possibly by means of a potato.

The Federal Office informed the applicant on 2 November 1994 that

he had to leave Switzerland before 15 December 1994. By letter of

20 August 1997 he was requested to leave Switzerland before

30 September 1997.

COMPLAINTS

The applicant complains vehemently of the situation at the house

where he is currently living which he calls a concentration camp. He

complains of the staff of the home and of inhuman treatment by the

local police.

The applicant further contests the decision of the Swiss Asylum

Appeals Commission which in his view is incorrect. He complains of the

unfairness of the proceedings.

THE LAW

1. The applicant complains of the manner in which the Swiss

authorities are treating him at the house where he is currently

residing.

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 after all domestic remedies

have been exhausted according to the generally recognised rules of

international law".

In the present case, the applicant failed to raise his complaint

before the Swiss authorities, in particular in last resort by means of

a public law appeal before the Federal Court. He has, therefore, not

exhausted the remedies available to him under Swiss law.

As a result, this part of the application must be rejected under

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

2. The applicant may be understood as complaining of his imminent

expulsion to Yugoslavia.

The Commission has also examined this complaint under Article 3

(Art. 3) of the Convention.

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 28 October 1994, whereas the

present application was introduced on 14 October 1995, that is, more

than six months after the date of this decision. This part of 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 complaints 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. However, it notes that

before the Commission the applicant has not provided any substantiation

of his fears concerning ill-treatment upon his return to Yugoslavia.

The Commission further notes the domestic authorities' conclusion

according to which the military order, which the applicant submitted

in the domestic proceedings as substantiation for his allegations,

clearly constituted a falsification.

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.

This part of the application is, therefore, also manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

3. The applicant may also be understood as complaining of the

alleged unfairness of the proceedings.

The Commission has 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 the applicant's complaints do not disclose any appearance

of a violation of the rights set out in Article 1 para. 1 of Protocol

No. 7 (P7-1-1).

The remainder of the application is therefore 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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S.Z. v. SWITZERLAND

S.Z. v. SWITZERLAND

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