Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 22794/93

by K.Y.

against Switzerland

The European Commission of Human Rights sitting in private on

22 October 1993, the following members being present:

MM. C.A. NØRGAARD, President

A. WEITZEL

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

C.L. ROZAKIS

Mrs. J. LIDDY

MM. J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

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 13 October 1993

by K.Y. against Switzerland and registered on 20 October 1993 under

file No. 22794/93;

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 Turkish citizen born in 1960, currently resides

at Lutzenberg in Switzerland. Before the Commission he is represented

by Mr. C. Bernhart, a lawyer practising at St. Gallen in Switzerland.

I.

According to the applicant's submissions to the Swiss

authorities, he was an Alevit. He claimed that Alevits in Turkey were

open to discrimination and persecution by the authorities, leading to

deprivation of liberty and assaults on their bodily integrity. Thus,

in 1980 his father was killed. In 1987 his brother disappeared and it

must be feared that he is also dead.

Since 1980 the applicant sympathised with the TKEP (Türkiye

Komünist Emekciler Partisi). For the TKEP he kept and distributed

journals, for which reason he was occasionally arrested. In 1986 he

was again arrested and detained for 59 days in Gaziantep without being

brought before a judge. While questioned by the police he was

regularly tortured. He was released as he did not make any

incriminating statements.

On 1 December 1989 the police searched his house during his

absence and found incriminating journals. He then decided to leave the

country in view of renewed detention and torture.

II.

The applicant left Turkey on 3 January 1990 and arrived in

Switzerland on 8 January 1990. On 17 January 1990 he applied for

asylum. On the same day he was questioned by the Office of the

Delegate for Refugees (Delegierter für das Flüchtlingswesen). He was

again questioned by the cantonal authorities on 19 February 1990, and

by the Federal Office for Refugees (Bundesamt für Flüchtlinge) on 17

December 1992.

On 29 March 1993 the Federal Office for Refugees dismissed the

applicant's request. It found, inter alia, that the applicant had not

sufficiently demonstrated that he had worked for the TKEP. The Federal

Office also noted various contradictions in the applicant's statements

which called in question the dangers he alleged. Thus, on one occasion

the applicant had explained that he had been arrested and detained

seven to eight times between 1980 and 1989; on another occasion he had

stated that he had been arrested for the first time in 1986, and

thereafter arrested between thirty and forty times.

The applicant's appeal was dismissed by the Swiss Appeals

Commission in Matters of Asylum (Schweizerische Asylrekurskommission)

on 13 August 1993. The Appeals Commission found that, in view of the

many contradictions in the applicant's statements, he had not credibly

established that he had worked for the TKEP, or that he had been

arrested and detained by the authorities. He had also contradicted

himself in respect of the date of his father's death: once he had

claimed that his father had died in 1980; another time he claimed he

had worked for his father in 1986, and had been with him in 1989.

There were also contradictions as to the events on 1 December 1989 when

the applicant's house was searched.

III.

Before the Commission the applicant has submitted the photocopy

of a document in Turkish, which includes the copy of a rubber stamp

mark of the District Commander of Yavuzeli. The applicant has

submitted a German translation thereof prepared by a St. Gallen

bookshop and dated 8 October 1993. The translation reads as follows:

"From: The District Commander in Yavuzeli, to: The head of the

village Kuzu Yatagi.

The below mentioned persons participated between 1980 and 1990

on various dates in illegal activities. You are hereby ordered

that of these persons:

- M.G. (there follow particulars as to the parents and the

birthday)

- (the applicant) ...

- S.G. ...

- H.D. ...

- S.G. ...

information should at once be given to our police office.

Otherwise, proceedings will be instituted against you for

disregarding your office. For your information."

COMPLAINTS

The applicant complains under Article 3 of the Convention that

nobody shall be submitted to torture or inhuman or degrading treatment.

The application continues: "The applicant must leave Switzerland before

15 November 1993. He risks expulsion to Turkey, arrest and torture.

A warrant of arrest has been issued against the applicant. Upon his

last stay in prison there is evidence that he was tortured."

THE LAW

1. The applicant complains of his imminent expulsion to Turkey where

allegedly he will be subjected to treatment contrary to Article 3

(Art. 3) of the Convention.

The Commission has constantly held that the right of an alien to

reside in a particular country is not as such guaranteed by the

Convention. However, 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 Articles 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;

mutatis mutandis Eur. Court H.R., Soering judgment of 7 July 1989,

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

2. The Commission notes that after the Appeals Commission in Matters

of Asylum dismissed the applicant's appeal on 13 August 1993, the

applicant obtained, on 8 October 1993, the translation of an undated

warrant of arrest. The applicant apparently regards this document as

relevant. However, it appears that the applicant did not submit it to

the Swiss authorities during the asylum proceedings.

The Commission recalls its case-law according to which requests

in Switzerland for the reconsideration of decisions which have already

entered into force constitute an effective remedy within the meaning

of Article 26 (Art. 26) of the Convention if circumstances are invoked

which were unknown at the time of the final decision (see No. 18079/91,

X. v. Switzerland, Dec. 4.12.91, to be published in D.R.; No. 22406/93,

Dec. 10.9.93, unpublished).

In the present case the Commission considers in the light of the

above case-law that the applicant could have been expected to submit

the copy of the warrant of arrest to the Federal Office for Refugees

and request reconsideration of the decision to expel him. However, he

failed to do so.

In this respect, therefore, the applicant has not complied with

the condition as to the exhaustion of domestic remedies. This part of

the application must be rejected under Article 27 para. 3 (Art. 27-3)

of the Convention.

3. In any event, the application would also have to be declared

inadmissible as a whole as being manifestly ill-founded for the

following reasons:

The Commission considers at the outset that 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).

In the present case, the only evidence submitted by the applicant

to the Commission is the copy of a warrant of arrest. However, this

document is not dated; no reference is made to any offences allegedly

committed by the applicant and there is no order to arrest and detain

the applicant; the only threat was directed at the head of the village.

This document cannot, in the Commission's view, serve to confirm the

applicant's fears.

Furthermore, the applicant has not referred to any other evidence

which he submitted to the domestic authorities in order to corroborate

his claims.

The Commission has therefore had regard to the decisions of the

Swiss authorities, in particular of the Federal Office for Refugees of

29 March 1993, and of the Swiss Appeals Commission in Matters of Asylum

of 13 August 1993. The Commission notes that the authorities carefully

examined the applicant's allegations. The Commission does not find it

unreasonable for the authorities, in view of various contradictions in

the applicant's statements, to consider that he had not credibly

established that he had worked for the political party concerned or

that he had been arrested and detained by the Turkish authorities.

The applicant has failed to show that upon his return to Turkey

he would face a real risk of being subjected to treatment contrary to

Article 3 (Art. 3) of the Convention. The application is therefore

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 Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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K.Y. v. SWITZERLAND

K.Y. v. SWITZERLAND

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