Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 37723/97

by P. M. and G. M.

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 25 July 1997 by

P. M. and G. M. against Switzerland and registered on 10 September 1997

under file No. 37723/97;

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 applicants, mother and son, are citizens of the Democratic

Republic of Congo (formerly Zaire) born in 1970 and 1997, respectively.

They reside in Murgenthal in Switzerland. Before the Commission they

are represented by Mr Kellenberger, a legal adviser practising in

Zürich.

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

summarised as follows.

The first applicant left Zaire on 20 October 1996 and entered

Switzerland on 25 October 1996 where on the same day she requested

asylum. She was questioned by the Swiss authorities on 13 November and

9 December 1996. The first applicant submitted that, while in Zaire,

her life companion had made propaganda for the "Parti Lumumbiste

Unifié" (PALU) of which he was a member. On 29 July 1995 he was taken

away from his home by armed persons and never seen again. In May 1996,

men again turned up and asked the first applicant as to the whereabouts

of her life companion. On 20 July 1996 certain persons appeared and

asked her about her life companion. She was then raped, beaten and her

knees were injured, and her television and radio were stolen. She then

fled the country.

On 27 March 1997 the Federal Office for Refugees (Bundesamt für

Flüchtlinge) dismissed the applicant's request. It noted that on

29 July 1995 a demonstration of PALU had taken place in Kinshasa in

Zaire, though the name of the applicant's life companion did not appear

on the lists of the victims of the demonstration later published by

PALU and a Zairean human rights organisation. As a result, the

disadvantages suffered by the first applicant did not appear credible.

On 26 April 1997 the first applicant's lawyer filed an appeal in

which she stated that she was pregnant, and that the pregnancy resulted

from her having been raped. She also stated that it had not crossed

her mind to report her life companion's abduction to PALU.

On 9 June 1997 the second applicant was born.

On 7 July 1997 the Swiss Asylum Appeals Commission

(Schweizerische Asylrekurskommission) dismissed the applicant's

request. Insofar as the first applicant maintained in her appeal

statement that she was pregnant, the Appeals Commission noted that she

had failed to refer hereto when questioned by the authorities on

13 November and 9 December 1996 and that therefore it did not appear

likely that there was a relationship between her pregnancy and her

having been raped.

The applicants were requested to leave Switzerland by 15 August

1997.COMPLAINTS

1. The applicants complain under Articles 2 and 3 of the Convention

of their expulsion to the Democratic Republic of Congo. The first

applicant points out that she was beaten, tortured and eventually raped

and, as a result, became pregnant. The situation in the Democratic

Republic of Congo is not at all stable, and the first applicant has

been weakened by the birth of her child.

2. The applicants complain under Article 6 of the Convention that

they were not duly heard in the domestic proceedings.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 25 July 1997.

On 4 August 1997 the Acting President of the Commission decided

not to apply Rule 36 of the Commission's Rules of Procedure.

The application was registered on 10 September 1997.

THE LAW

1. The applicants complain under Articles 2 and 3 (Art. 2, 3) of the

Convention of their expulsion to the Democratic Republic of Congo. The

first applicant submits that she was beaten and raped, and that she

became pregnant as a result of her having been raped.

The Commission has examined these complaints 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."

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).

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 applicants.

However, the Commission notes that the applicants have not

provided any substantiation of their fears concerning ill-treatment

upon their return to the Democratic Republic of Congo. It has not been

contended that the inhuman treatment allegedly suffered by the first

applicant emanated from the authorities, or that upon the applicants'

return such treatment also had to be feared from the authorities of the

new Government of the Democratic Republic of Congo.

The Commission further notes the domestic authorities' conclusion

according to which the first applicant's submissions concerning her

life companion did not appear credible. Moreover, she had failed to

refer to her pregnancy when questioned by the Swiss authorities on

13 November and 9 December 1996 and that therefore it was not found

that there was a relationship between her pregnancy and her having been

raped.

As a result, the applicants have failed to show that upon their

return to the Democratic Republic of Congo they 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 applicants complain under Article 6 (Art. 6) of the

Convention that they were not duly heard in the domestic proceedings.

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 applicants were "lawfully

resident" in Switzerland within the meaning of this provision, the

Commission finds that the applicants' 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 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.

H.C. KRÜGER G.H. THUNE

Secretary Acting President

to the Commission of the Commission

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P.M. AND G.M. v. SWITZERLAND

P.M. AND G.M. v. SWITZERLAND

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