Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 35438/97

by Elyas CHAMMAS

against Switzerland

The European Commission of Human Rights sitting in private on

30 May 1997, the following members being present:

Mrs. G.H. THUNE, Acting President

Mr. S. TRECHSEL

Mrs. J. LIDDY

MM. 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

M. VILA AMIGÓ

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 18 March 1997 by

Elyas Chammas against Switzerland and registered on 25 March 1997 under

file No. 35438/97;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on 5 May

1997 and the observations in reply submitted by the applicant on

16 May 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Syrian citizen born in 1965. He is currently

residing in Switzerland. Before the Commission he is represented by

Mr Kurt Sintzel, a lawyer practising in Zurich.

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

summarised as follows.

The applicant left Syria on 17 October 1990 and travelled via

Italy to Switzerland where he requested asylum on 22 October 1990.

The applicant was questioned by the Swiss authorities on

23 October 1990 and 16 January 1992. He submitted, inter alia, that

he was an Aramean Christian and a member of the right-wing Baath party

which ruled in Iraq. In view thereof he had been tortured in Syria and

detained for eight months in 1985. Subsequently, he had occasionally

been arrested for a few hours and questioned. When his party friends

had been arrested in 1990, he had fled Syria.

The applicant's request for asylum was dismissed on 9 March 1992

by the Federal Office for Refugees (Bundesamt für Flüchtlinge) which

expressed doubts as to the credibility of the applicant's statements.

Thus, the applicant had been unable sufficiently to describe the

political aims of the Baath party. Moreover, it did not appear

credible that the applicant, as a member of this party, had been

released from detention after only eight months. The Federal Office

further noted that the applicant had been able to leave Syria with a

passport, and indeed in 1990 had spent holidays in Italy and Jordan.

The Office was not convinced by the applicant's statement that he had

obtained a passport by means of bribery.

The applicant filed an appeal on 9 April 1992 which was dismissed

by the Swiss Asylum Appeals Commission (Schweizerische Asylrekurskom-

mission) on 13 November 1996, the decision being served on 26 November.

The Appeals Commission found that the applicant had failed to comment

sufficiently on the points raised by the Federal Office for Refugees.

On 28 November 1996 the Federal Office for Refugees ordered the

applicant to leave Switzerland by 28 February 1997.

On 17 January 1997 the applicant's lawyer filed a request with

the Swiss Asylum Appeals Commission for the reopening of its decision

of 13 November 1996. The lawyer included a letter of the Swiss Section

of Amnesty International, dated 17 September 1996 and addressed to one

Mr R.M. of the Counselling Service for Asylum Seekers (Beratungsstelle

für Asylsuchende). The letter read as follows:

"Dear Mr M.

We would like to state the following as to the situation of

Syrian asylum-seekers who are returning to Syria. (Particular

attention shall be given to the situation of Syrian-Orthodox Syrians.)

Risks upon Return of Asylum-Seekers to Syria

Syrians, who are seeking political asylum, are automatically

regarded as opponents of the régime. The mere fact that they have left

the country with the aim of seeking asylum in another country is

considered a sign of opposition against the Syrian Government. If the

asylum-seeker has been or is associated with a prohibited political

organisation, he risks detention and torture upon his return. It

transpires from recent reports that torture is still systematically

applied in Syria.

In the case of former detainees the fact that they have sought

asylum is considered proof of continuing prohibited activity for the

opposition, leading to a danger of reprisals.

Syrians are prohibited from leaving the country without

permission. The Government refuses to grant authorisations to supposed

opponents of the régime. Those who wish to leave Syria to seek asylum

in another country are often forced to suppress their identity or to

have forged documents prepared.

Asylum-seekers who leave Syria unlawfully, i.e. without

permission or with forged documents, normally risk arrest and

detention. If an asylum-seeker whose request is refused is sent back

to Syria, he risks a prison sentence between one month and two years on

account of forging documents or of false identity (S. 452 of the Syrian

Criminal Code). According to S. 427 of the Criminal Code the

punishment can be raised. Thus, the punishment can amount to seven

years' forced labour on account of falsifying the seal of Syrian

authorities. The falsification of seals of public authorities is

punished with imprisonment of one to three years (S. 428 of the Syrian

Criminal Code).

If the returning asylum-seeker is accompanied by security

officers of the expelling State, his request for asylum will hardly

remain unnoticed by the Syrian authorities. Asylum-seekers who have

spent some time abroad must upon return to Syria expect with certainty

that they shall be questioned extensively by the Syrian security

authorities. We would add that the Syrian Secret Service has as its

duty the surveillance of Syrian communities abroad. The Syrian

authorities could therefore already have been made aware of the request

for asylum of returning persons.

The situation of Syrian-Orthodox Christians

Amnesty International is not aware of any documented cases in

which Syrian nationals of Christian faith have been subjected to

political persecution merely on account of their beliefs.

Christians were persecuted mostly because they were also active

in the political opposition.

According to unconfirmed reports, Christians in Syria suffer

disadvantages and are discriminated against, but these measures do not

attain the level of severity of human rights violations.

As regards the return of Syrian-Orthodox Christians whose

requests have been refused, we would refer to the above.

Cases of returning asylum-seekers

We have only little information as to the destiny of asylum-

seekers who have returned to Syria. However, in the past years we have

registered numerous cases of unsuccessful asylum-seekers who, upon

their return to Syria, were arrested and detained. According to our

experience, members of prohibited movements will often have to expect

persecution. We would mention some cases among many:

On 20 October 1995 an asylum-seeker was expelled from Switzerland

to Syria. Witnesses report that he was arrested immediately upon his

arrival at Damascus airport. His family has since (December 1995) not

received any signs of life from him. Amnesty fears that he is in

danger of torture and of disappearing.

In 1995 three Syrian-Kurdish asylum-seekers were expelled from

Austria to Syria. According to certain reports, they were arrested

immediately after their arrival in Syria. In December 1995 there was

no information as to their whereabouts.

On 5 March 1996 H.K. was expelled by the Romanian authorities to

Syria. He was arrested upon his arrival in Syria. According to

certain reports, he has repeatedly been tortured.

Sincerely,

Amnesty International

Swiss Section

R.M.

Refugee Team"

In his request for reopening of the proceedings the applicant's

lawyer pointed out that "only in December of last year had (the

applicant) obtained the Report of Amnesty International". He submitted

that the applicant would be treated as mentioned in the report.

On 24 February 1997 the Swiss Asylum Appeals Commission rejected

the applicant's request for reopening of the proceedings. The decision

stated, inter alia:

"In the present case the applicant has completely failed

substantially to explain why it was not possible for him to

obtain knowledge of the report of Amnesty International during

the regular proceedings. It is true that according to his

submissions the facts at issue are derived from a report of

Amnesty International of 17 September 1996 (i.e. before the

decision of the Asylum Appeals Commission was pronounced on

13 November 1996). However, he does not explain at all why it

was impossible, or could not be expected from him, to obtain the

report earlier on. The mere fact that he has received the report

only after the decision of the Asylum Appeals Commission cannot

in itself suffice in view of the facts explained above."

As to the substance of the applicant's request the decision

stated:

"It can nevertheless be stated that the applicant's submissions

would lead to the conclusion that in principle no more expulsions

would be possible to Syria. In this respect it must be said that

the Asylum Appeals Commission relies for its determination of the

situation on various documentations, including as a rule

publications of Amnesty International. Finally it should be

added that the Swiss Federal Council has so far not contemplated

provisionally accepting groups of Syrian nationals in

Switzerland. The Asylum Appeals Commission has equally not

reached an analogous conclusion in its constant consideration of

the situation concerning individual expulsions to Syria."

According to a News Release of Amnesty International of 25 March

1997, there has been a growing trend of improvements in human rights

in Syria over the last few years. Thus, approximately 2,000 political

prisoners have been released since 1995, including prisoners of

conscience. There has also been a significant decrease in arbitrary

political arrests, detention and torture.

COMPLAINTS

1. The applicant complains under Article 3 of the Convention of his

expulsion to Syria. He cannot reside in any other European country.

Upon his return to Syria he would risk detention and torture or inhuman

treatment. The applicant refers expressly to the report of Amnesty

International of 17 September 1996.

2. The applicant also complains under Article 6 of the Convention

of the formalistic manner in which the Asylum Appeals Commission dealt

with his request for reopening of the proceedings. After his appeal

in 1992, the proceedings lasted four years until the Asylum Appeals

Commission gave its decision. During this time he could not be

expected to undertake research with regard to a possible negative

decision. The applicant also complains that he could not properly

explain himself before the Asylum Appeals Commission.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 18 March 1997 and registered

on 25 March 1997.

Rule 36 of the Commission's Rules of Procedure was applied on

24 March 1997 by the Acting President, and on 17 April 1997 by the

Commission.

On 17 April 1997 the Commission also decided to communicate the

application to the respondent Government.

The Government's written observations were submitted on 5 May

1997. The applicant replied on 16 May 1997.

THE LAW

1. The applicant complains under Article 3 (Art. 3) of the

Convention of his expulsion to Syria. He cannot reside in any other

European country. Upon his return to Syria he would risk detention and

torture or inhuman treatment. The applicant refers expressly to the

report of Amnesty International of 17 September 1996.

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

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

treatment or punishment."

a) The Government contend that the applicant has not complied with

the requirement under Article 26 (Art. 26) of the Convention as to the

exhaustion of domestic remedies. It transpires from the decision of

the Asylum Appeals Commission of 24 February 1997 that the applicant

had not explained why he could not have obtained knowledge of the

Report of Amnesty International during the regular proceedings. Thus,

the facts which he invoked could no longer be qualified as being new,

and a request for reopening of the proceedings was therefore

inadmissible. The Government point out that insofar as the Asylum

Appeals Commission nevertheless dealt with the letter of Amnesty

International, it did not do so in a sufficiently concrete manner in

respect of his personal situation.

The applicant submits that the Asylum Appeals Commission was too

formalistic when it rejected his request for reopening of the

proceedings. In fact, it transpires from the decision of 24 February

1997 that the Asylum Appeals Commission did not share his views as to

his expulsion to Syria. Thus, the considerations of the Asylum Appeals

Commission constitute an obiter dictum amounting to a decision on the

merits.

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 Swiss Asylum Appeals Commission

dismissed the applicant's appeal on 13 November 1996. Subsequently,

the applicant requested, with reference to the letter of Amnesty

International, the reopening of the proceedings.

According to the Commission's case-law, if in such proceedings

in Switzerland new facts are obtained after the final decision of the

Asylum Appeals Commission, a request for reopening of the proceedings

may be considered an effective remedy (see No. 18079/91, Dec. 4.12.91,

D.R. 72, p. 263). Nevertheless, there is no exhaustion of domestic

remedies where a remedy is not admitted because of a procedural mistake

(see No. 6878/75, Dec. 6.10.76, D.R. 6, p. 79).

It is true that in the present case the applicant's request for

reopening of the proceedings was declared inadmissible by the Asylum

Appeals Commission on 24 February 1997. Thus, the applicant had failed

to explain why he had not been able to submit the letter of Amnesty

International already during the regular proceedings.

However, the Commission notes the applicant's explanations before

the Asylum Appeals Commission according to which he had only obtained

the letter of Amnesty International after the final decision of

13 November 1996. There is furthermore no indication that the

applicant had in fact been in possession of the letter before

13 November 1996 and that he had purposely withheld it during the

regular proceedings before the Asylum Appeals Commission.

In any event, in its decision of 24 February 1997 the Asylum

Appeals Commission, after explaining why the request was inadmissible,

in fact proceeded to discuss, albeit briefly, the merits of the

applicant's request.

The applicant's complaints cannot therefore be rejected under

Article 26 (Art. 26) of the Convention for non-exhaustion of domestic

remedies.

b) The Government further contend that the application is manifestly

ill-founded. Doubts arise as to the credibility of the applicant's

submissions. It is recalled that according to the decision of the

Asylum Appeals Commission of 13 November 1996, the applicant had only

insufficiently demonstrated his affiliation in Syria to the Baath

party. Furthermore, had he really been punished for his support of

that party, he would have been subjected to a more severe sanction than

eight months' imprisonment. It also did not appear credible if he

stated that despite his persecution he suffered no disadvantages from

1985 to 1990 when he lived in Syria, or that he was able to leave Syria

via Damascus airport with all the necessary documents, particularly as

the security services are very strict at that airport.

The Government also point out that in the same year when the

applicant left Syria for Switzerland he was able twice to travel

abroad, once to Jordan and once to Italy. This would hardly have been

possible for a person allegedly persecuted by the authorities.

Moreover, it is recalled that the letter of Amnesty International only

envisaged difficulties upon the return of asylum-seekers who left Syria

unlawfully. Thus, the dangers mentioned therein, if any, would not

apply to the applicant who was able to leave the country lawfully.

Finally, the Government refer to the situation in Sweden, Germany

and the Netherlands. These countries regularly send Syrian asylum-

seekers back to Syria without any difficulties having become apparent.

The applicant contends that his expulsion to Syria would breach

Article 3 (Art. 3) of the Convention. In his case, the Swiss

authorities insufficiently examined the particular circumstances in

Syria. Thus, the applicant knew about the Baath party as much as one

generally knows about a party programme. Personal reasons led him to

join a wing of the Baath party. The fact that he was released after

eight months of imprisonment is not extraordinary. In the following

years the applicant was placed under surveillance, but he was not

persecuted, as the situation had calmed down in the country, and there

was a more relaxed atmosphere. For this reason, he could travel twice

abroad. In 1990, when the situation in Syria deteriorated and his

friend was arrested, he could leave the country as he obtained a

passport with the help of his father and by means of bribery.

The applicant submits that while in Syria he was detained for

eight months, and tortured. In view of the situation there today, he

must expect, upon his return, renewed persecution contrary to Article 3

(Art. 3) of the Convention. Complete proof is not possible. In his

case, there is a concrete, serious and substantial danger of

persecution.

The applicant recalls that the letter of Amnesty International

points out the risks for returning Syrian asylum-seekers, such as the

applicant. These persons are automatically regarded as opponents of

the régime and, therefore, risk torture. The mere fact that they left

the country is regarded as a form of resistance. It may be true that

the sanctions mentioned in the Report of Amnesty International in case

of unlawful departures from Syria do not apply to the applicant who

left Syria with a passport. However, if he has to return to Syria, he

will have to obtain the necessary documents for his return. The Syrian

authorities will thus certainly become aware of him, and he can

therefore no longer enter his home country as a normal citizen.

The applicant contests the Government's submissions according to

which various countries have sent Syrian asylum-seekers back to Syria

without any problems. These submissions contradict the letter of

Amnesty International where reference is made to persons who in the

past years were arrested at Damascus airport upon their return to

Syria. Some of them have completely disappeared. These are serious

circumstances which can also affect the applicant.

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, 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 Commission notes at the outset that the applicant has not

provided any substantiation whatsoever for his claims that in view of

his support of the Baath party he had been tortured and detained on

remand for eight months, and that for this reason he would again risk

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

return to Syria. In this context, the Commission further notes that

in their decisions the Swiss authorities expressed doubts as to the

credibility of the applicant's statements.

The Commission has next examined the letter of Amnesty

International of 17 September 1996 which describes the situation of

Syrian asylum-seekers who are returning to Syria. It is stated therein

that the mere fact that these persons have left the country with the

aim of seeking asylum in another country is considered a sign of

opposition against the Syrian Government.

However, this letter then points out that a concrete risk of

arrest and detention arises for asylum-seekers who have left Syria

unlawfully. In the present case, the Commission need not decide

whether the applicant, who allegedly obtained a forged passport to

travel to Switzerland, left Syria unlawfully in 1990. It suffices to

point out that in the same year the applicant was able twice to travel

as a regular tourist to other countries, namely Jordan and Italy.

Insofar as the applicant refers to the concrete cases of ill-

treatment mentioned in the letter of Amnesty International, it is not

stated therein whether these cases concerned persons who had left Syria

unlawfully. The Commission further notes the Government's submissions

according to which Syrian asylum-seekers have been returned from

Sweden, the Netherlands and Germany to Syria without any difficulties.

In this respect the Commission also recalls its decision in the case

of H. v. Sweden where it considered that no real risk of treatment

contrary to Article 3 (Art. 3) of the Convention had been established

in the case of the expulsion of a Syrian asylum-seeker from Sweden to

Syria (see No. 22408/93, Dec. 5.9.94, D.R. 79-A, p. 85).

Finally, the Commission notes the News Release of Amnesty

International of 25 March 1997 according to which there has been a

growing trend of improvements in human rights in Syria over the last

few years.

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

return to Syria 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, manifestly ill-

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

Convention.

2. The applicant also complains of the formalistic manner in which

the Asylum Appeals Commission dealt with his request for reopening of

the proceedings. After his appeal in 1992, the proceedings lasted four

years until the Asylum Appeals Commission gave its decision. The

applicant also complains that he could not properly explain himself

before the Asylum Appeals Commission.

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 (P1-1-1). 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.

H.C. KRÜGER G.H. THUNE

Secretary Acting President

to the Commission of the Commission

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CHAMMAS v. SWITZERLAND

CHAMMAS v. SWITZERLAND

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