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AS TO THE ADMISSIBILITY OF

Application No. 27406/95

by S. V.

against Switzerland

The European Commission of Human Rights (Second Chamber) sitting

in private on 6 September 1995, the following members being present:

MM. H. DANELIUS, President

S. TRECHSEL

Mrs. G.H. THUNE

MM. G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

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 22 March 1995 by

S. V. against Switzerland and registered on 24 May 1995 under file

No. 27406/95;

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

summarised as follows.

The applicant, a citizen of former Yugoslavia born in 1975, is

a student residing at Gettnau in Switzerland. Before the Commission

he is represented by his father.

Before travelling to Switzerland the applicant lived in the

Kosovo province of former Yugoslavia. According to his subsequent

submissions before the Swiss authorities, he participated in political

activities against Serbian rule, for instance in a demonstration in

1991. In 1994 the Serbian police had searched for him in view of his

military service, but also on account of the activities of his father

as a police officer.

In May 1994 he travelled via Albania to Switzerland where he

requested asylum.

On 22 July 1994 the Federal Office for Refugees (Bundesamt für

Flüchtlinge) dismissed the applicant's request as his submissions were

contradictory and improbable. The Office noted for instance that

although the applicant claimed to be wanted by the authorities in his

home town, he had frequently returned home, and he had even postponed

his departure to Switzerland for some months in order to await the

conclusion of his cousin's studies. The Office found it improbable

that the police had looked for his father in 1994 for activities which

had taken place in 1991.

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

Commission (Schweizerische Asylrekurskommission) on 15 November 1994.

After dealing with various procedural complaints - for instance, that

the applicant's father had not been present when the Swiss authorities

had spoken with the applicant - the Appeals Commission considered that

the applicant had not sufficiently made out a concrete risk of inhuman

treatment upon his return to former Yugoslavia, and that his Albanian

origin could not in itself suffice to prevent his return. The Appeals

Commission also saw no reason to depart from the considerations of the

Federal Office for Refugees. It noted for instance the contradiction

that in the domestic proceedings he had first stated that he had only

participated in a demonstration against the Serbs in 1991; only later

had he claimed that he belonged to the political forces aiming at the

independence of Kosovo.

The applicant was ordered to leave Switzerland by 31 May 1995.

COMPLAINTS

The applicant complains under Article 3 of the Convention that

upon his return to former Yugoslavia he will be submitted to torture

and imprisonment without a fair trial. In this respect he submits that

he belongs to a population group which is being persecuted by the

Serbs.

The applicant submits that at home his father was a police

captain. Eventually, 250 police officers were suspended from service,

and many fled abroad. Hundreds of officers have meanwhile been

imprisoned. According to recent news, even relatives of police

officers are subject to torture. In support of his submissions the

applicant presents copies of newspaper articles and refers to the

statements of other police officers who have fled to Switzerland.

Under Articles 6 and 8 of the Convention the applicant complains

of the unfairness of the asylum proceedings, in particular that the

applicant's father had not been present when the applicant was

questioned by the Swiss authorities.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 22 March 1995 and registered

on 24 May 1995.

On 24 May 1995 the Commission (Second Chamber) decided not to

apply Rule 36 of the Commission's Rules of Procedure.

THE LAW

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

Convention that upon his return to former Yugoslavia he will be

submitted to torture and imprisonment without a fair trial. In this

respect he submits that he belongs to a population group which is being

persecuted by the Serbs. He also submits that the authorities are

searching for his father who was a police officer, and that many other

police officers have been imprisoned.

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

the person is to be expelled (see No. 10564/83, Dec. 10.12.84, D.R. 40

p. 262, and mutatis mutandis Eur. Court H.R., Soering judgment of 7

July 1989, Series A no. 161, p. 32 et seq., paras. 81 et seq.).

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 H.R., Vilvarajah and others 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. It notes that in the

proceedings before the Commission the applicant refers mainly to the

persecution of police officers in former Yugoslavia, among them his

father. However, the applicant has not provided any evidence which

would confirm these allegations.

The Commission has further had regard to the decisions of the

Federal Office for Refugees of 22 July 1994 and of the Swiss Asylum

Appeals Commission of 15 November 1994. The Commission notes that the

authorities carefully examined the applicant's allegations, though they

concluded that the applicant's submissions were contradictory and

improbable, and that he had not credibly established a danger of

persecution upon his return to former Yugoslavia.

Thus, the applicant has failed to show that upon his return to

former 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 manifestly ill-founded

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

Insofar as the applicant complains under Article 6 (Art. 6) of

the Convention about unfairness of the asylum proceedings, the

Commission recalls that the decision whether an alien should be allowed

to stay in a country or be expelled does not involve the determination

either of the alien's civil rights or obligations, or of a criminal

charge, within the meaning of Article 6 para. 1 (Art. 6-1) of the

Convention (see No. 8118/77, Dec. 19.3.81, D.R. 25 p. 105). This part

of the application is therefore incompatible ratione materiae with the

provisions of the Convention, pursuant to Article 27 para. 2

(Art. 27-2) of the Convention.

Insofar as the applicant complains under Article 8 (Art. 8) of

the Convention that his father was not present when the applicant was

questioned by the Swiss authorities, the Commission finds no separate

issue under this provision. 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.

Secretary to the Second Chamber President of the Second Chamber

(M.-T. SCHOEPFER) (H. DANELIUS)

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S.V. v. SWITZERLAND

S.V. v. SWITZERLAND

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