Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 33721/96

by M. C. C. and others

against Switzerland

The European Commission of Human Rights sitting in private on

5 December 1996, 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

L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

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

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 1 November 1996

by M. C. C. and others against Switzerland and registered on 8 November

1996 under file No. 33721/96;

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 application has been introduced by 11 Somali citizens

currently residing in Zürich. The first and second applicants are a

married couple, the other applicants are their children. Before the

Commission they are represented by S. Aloui, a legal adviser residing

in Rüti in Switzerland.

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

summarised as follows.

The applicants left Somalia on 15 August 1994 and arrived in

Switzerland on 11 September 1994 where they requested asylum.

The applicants were questioned by the Swiss authorities on

23 September and 25 October 1994. They stated that they belonged to

the Midgaan Clan and had been living in Mogadiscio. In 1988 their

house had been bombed and a family member had been killed. In view of

the changing power structures in Mogadiscio, they had moved in 1992 to

Kismaayo where they remained until 1994. The applicants claimed that

as members of the Midgaan clan they had no home territory to return to,

and in Mogadiscio the adherents of Ali Mahdi had meanwhile taken over.

While not involved in politics, they experienced discrimination on

account of their particular clan.

On 4 January 1995 the Federal Office for Refugees (Bundesamt für

Flüchtlinge) dismissed the applicants' request for asylum. The Office

found, inter alia, that the applicants had not demonstrated a concrete

persecution other than being the object of verbal injuries

(Beschimpfungen). The Office concluded that the applicants had not

demonstrated that upon their return to Somalia they would be subjected

to inhuman treatment contrary to Article 3 of the Convention. However,

as an expulsion to Somalia was not possible for the time being, the

applicants were permitted provisionally to stay in Switzerland for

twelve months.

The applicants' appeal was dismissed by the Swiss Asylum Appeals

Commission (Schweizerische Asylrekurskommission) on 29 March 1995. The

Appeals Commission found that the applicants had not demonstrated that

in view of their membership of a particular clan they had been subject

to persecution or had otherwise been endangered in a concrete manner.

The applicants filed on 18 July 1996 a request for reopening the

proceedings, claiming that the Appeals Commission had made an incorrect

factual statement about the Midgaan clan. The request was declared

inadmissible by the Appeals Commission on 26 July 1996 as having been

filed out of time.

COMPLAINTS

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

their request for asylum has been refused and that, if they return to

Somalia, they risk a danger to life and limb. They submit that the

Midgaan clan to which they belong is a persecuted minority in Somalia.

The applicants come from the north of Somalia where the Isshak clan is

now in power. The applicants have also experienced persecution in the

south in Kismaayo until 1994. The situation is worst in Mogadiscio

where the Midgaan clan is being persecuted on account of its

cooperation with the previous Siad Barres régime.

The applicants submit that the danger of expulsion is imminent

as their request for asylum has been dismissed and they only have a

provisional right to stay in Switzerland.

2. The applicants further complain that they were not properly heard

in the proceedings before the Swiss authorities; that certain evidence

was disregarded; and that the various decisions were incorrect.

3. The applicants also raise complaints under Articles 5, 13 and 14

of the Convention.

THE LAW

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

Convention of their imminent expulsion to Somalia. They also complain

about the unfairness of the proceedings. Further complaints are raised

under Articles 5, 13 and 14 (Art. 5, 13 , 14) of the Convention.

The Commission notes that the Swiss Asylum Appeals Commission

gave its final decision on 29 March 1995, and that on 26 July 1996 it

declared inadmissible the applicants' request for the reopening of the

proceedings. An issue arises therefore as to whether the applicants

have complied with the six months time-limit under Article 26 (Art. 26)

of the Convention. The Commission need not resolve this issue since

the application is in any event inadmissible for the following reasons.

2. The applicants complain of their imminent expulsion to Somalia,

claiming that they risk being persecuted on account of their membership

of a particular clan. They rely on 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, for example where

there is a serious and well-founded fear of treatment contrary to

Article 2 or Article 3 (Art. 2, 3) of the Convention in the country to

which the person is to be expelled (see Eur. Court HR, Chahal v. the

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 applicants. It notes that before

the Commission the applicants have not provided any concrete

substantiation that they would suffer persecution if they returned to

Somalia.

The Commission has further had regard to the decisions of the

Federal Office for Refugees of 4 January 1995 and the Swiss Asylum

Appeals Commission of 29 March 1995. The Commission notes that the

authorities carefully examined the applicants' allegations though they

concluded that they had not established a danger of persecution upon

their return to Somalia.

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

return to Somalia 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.

3. The applicants further complain that they were not properly heard

in the proceedings before the Swiss authorities; that certain evidence

was disregarded; and that the various decisions were incorrect.

The Commission has examined this complaint under Article 1 of

Protocol No. 7 (P7-1) to the Convention which states in para. 1:

"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). In this respect the application is

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

3. Insofar as the applicants raise complaints under Articles 5, 13

and 14 (Art. 5, 13, 14) of the Convention, the Commission finds no

separate issue under these provisions. It follows that the remainder

of the application is 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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M.C.C. AND OTHERS v. SWITZERLAND

M.C.C. AND OTHERS v. SWITZERLAND

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