Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 36774/97

by M. K. and L. K.-K.

against Switzerland

The European Commission of Human Rights (Second Chamber) sitting

in private on 10 September 1997, the following members being present:

Mrs. G.H. THUNE, President

MM. S. TRECHSEL

J.-C. GEUS

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

A. ARABADJIEV

Ms. M.-T. SCHOEPFER, Secretary to the Chamber

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 June 1997 by

M. K. and L. K.-K. against Switzerland and registered on 3 July 1997

under file No. 36774/97;

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 first applicant is an Angolan citizen born in 1957, the

second applicant, his wife, is a citizen of the Democratic Republic of

Congo (Zaire) born in 1964. Both applicants live in Uetikon a.S. in

Switzerland. Before the Commission they are represented by Mr M.

Kellenberger, an adviser in matters of European law practising in

Zürich.

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

summarised as follows.

The first applicant left Angola and arrived in Switzerland on

21 June 1988 where he filed a request for asylum, claiming that he had

been a member of UNITA in Angola. As such, he had provided information

for the organisation. As a result, he had been arrested by the Angolan

authorities. He was subsequently released on condition that he report

weekly to the police. However, he fled the country.

The second applicant left Zaire (presently the Democratic

Republic of Congo) and arrived in Switzerland on 7 May 1990 where she

filed a request for asylum. She claimed that she had participated in

a movement criticising the then President Mobutu. After one particular

demonstration she had been informed that her house was surrounded by

soldiers. As a result, she fled the country.

After hearing the applicants, the Federal Office for Refugees

(Bundesamt für Flüchtlinge) refused the first applicant's request for

asylum on 9 February 1990, and the second applicant's request on

30 April 1990.

In 1991 the applicants married. They have two daughters born in

1992 and 1996.

The applicants filed appeals against the decisions of the Federal

Office for Refugees with the Swiss Asylum Appeals Commission

(Schweizerische Asylrekurskommission) in which they complained of the

allegedly incorrect decisions of the Federal Office for Refugees. The

Asylum Appeals Commission dismissed the appeals in two separate

decisions on 2 June 1997.

In the decision concerning the first applicant, the Asylum

Appeals Commission noted various discrepancies in the applicant's

submissions, inter alia, that the document provided by the applicant

which served to justify his release from detention had been falsified.

The Asylum Appeals Commission saw no risk, upon the first applicant's

return to Angola, of inhuman treatment contrary to Article 3 of the

Convention.

In the decision concerning the second applicant the Asylum

Appeals Commission also saw no risk, upon the second applicant's return

to the Democratic Republic of Congo, of inhuman treatment contrary to

Article 3 of the Convention. The Commission further noted that there

was no longer a situation of civil war in Angola and that the second

applicant could be expected to follow the first applicant to his home

country.

The applicants have been ordered to leave Switzerland by

15 September 1997.

COMPLAINTS

1. The applicants complain under Article 3 of the Convention of

their expulsion from Switzerland. They submit that they have

integrated into the community of Uetikon a.S., where they married in

1991 and where their children were born in 1992 and 1996. The older

daughter speaks Swiss German, visits the local kindergarten and can be

considered to be a Swiss child.

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

length of the asylum proceedings, lasting nearly nine years in the case

of the first applicant, and over seven years in the case of the second

applicant.

THE LAW

1. The applicants complain under Article 3 (Art. 3) of the

Convention of their expulsion from Switzerland. They submit in

particular that they have integrated well into the community where they

reside.

The Commission has examined these complaints under Articles 3

and 8 (Art. 3, 8) of the Convention.

Article 3 (Art. 3) of the Convention states:

"No one shall be subjected to torture or to inhuman or degrading

treatment or punishment."

Article 8 (Art. 8) of the Convention states, insofar as relevant:

"1. Everyone has the right to respect for his private and

family life ...

2. There shall be no interference by a public authority with

the exercise of this right except such as is in accordance with

the law and is necessary in a democratic society in the interests

of national security, public safety or the economic well-being

of the country, for the prevention of disorder or crime, for the

protection of health or morals, or for the protection of the

rights and freedoms of others."

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, paras. 72 ff,).

In this respect, 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).

Moreover, the expulsion of a person from a country where close

members of his family are living may amount to an infringement of the

right to respect for his private and family life guaranteed in

Article 8 para. 1 (Art. 8-1) of the Convention (see Eur. Court HR,

Moustaquim v. Belgium judgment of 18 February 1991, Series A no. 193,

p. 18, para. 36; No. 9203/80, Dec. 5.5.81, D.R. 24, p. 239).

The Commission has first examined the applicants' case under

Article 3 (Art. 3) of the Convention. However, the applicants have

not complained that upon their return to the Democratic Republic of

Congo or Angola, respectively, they would be subjected to treatment

contrary to Article 3 (Art. 3) of the Convention. In any event, no

concrete risk of such treatment transpires from the case-file.

The Commission has next examined the applicants' case under

Article 8 (Art. 8) of the Convention. However, it notes that the

applicants will not be separated from each other, or from their

children, as a result of the expulsion. Moreover, the applicants have

not contended that after their expulsion they would be separated from

each other in that they would have to reside in different countries.

In any event, the Commission notes the decision of the Asylum Appeals

Commission of 2 June 1997 concerning the second applicant according to

which there was no risk of a civil war in Angola and the second

applicant could, therefore, be expected to follow the first applicant

to his home country.

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 of the length of the asylum proceedings.

The Commission recalls that Article 6 (Art. 6) of the Convention

does not apply to asylum proceedings (see No. 12364/86, Dec. 17.10.86,

D.R. 50 p. 280). It has, therefore, 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' complaint does not disclose any

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

of Protocol No. 7 (P7-1-1). In this respect 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.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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M.K. AND L. K.-K. v. SWITZERLAND

M.K. AND L. K.-K. v. SWITZERLAND

LEXI