Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 22659/93

by Y.M.

against Switzerland

The European Commission of Human Rights sitting in private on

21 October 1993, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

A. WEITZEL

E. BUSUTTIL

G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

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 17 July 1993 by

Y.M. against Switzerland and registered on 21 September 1993 under file

No. 22659/93;

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 is a Pakistani citizen born in 1960. His current

place of residence is unknown. Before the Commission he is represented

by Mr K. Rüst, a legal adviser of the association "Rechtsberatungsstel-

le für Asylsuchende" in St. Gallen in Switzerland.

I.

The applicant is a member of the Shiah sect. In 1988, while in

Pakistan, he became the religious leader of the Shiite community in his

village Bambanwala. The village has a population of 3000, of which 10%

are Shiites, the remainder Sunni.

On 1 January 1989 Sunni villagers prevented the Shiites from

entering a local mosque. In the ensuing fight the applicant was

injured with a knife. The local hospital subsequently refused to treat

him. He also unsuccessfully attempted to report the incident to the

police. The applicant then announced that he would offer a plot of

land for the construction of a mosque, and money was collected among

the members of the Shiite community.

On 1 May 1990 the building commenced. However, Sunni villagers

attempted to prevent construction of the edifice, and various clashes

took place in the course of which a Shiite shot at two Sunni.

The applicant who was absent heard of these clashes. He also

heard that he was searched for by the police on suspicion of murder as

he had reportedly fired shots; and that the Sunni were threatening to

kill him. The applicant went to a friend where he eventually heard

that on 9 May 1990 his family had been driven away from the village and

his house had been burnt down.

The applicant thereupon decided to leave Pakistan. On 23 May

1990 he left the country by air from Karachi airport. He travelled

with a passport in his own name apparently arranged by a travel agent.

II.

On 28 May 1990 the applicant entered Switzerland. On 29 May 1990

he applied for asylum in Switzerland, claiming inter alia that he was

persecuted in Pakistan on account of his Shiite faith, and that he was

accused of the illegal possession of a fire arm and of participating

in a religious clash.

On 27 April 1993 the Federal Office for Refugees (Bundesamt für

Flüchtlinge) dismissed the request.

The Office found in particular that prosecution for a criminal

act could not prevent the applicant's expulsion. Insofar as the

applicant referred to hostilities between Sunni and Shiites, these

concerned third persons. The Office noted in this respect that to its

knowledge the Pakistani police did in fact prosecute offences committed

as a result of hostilities between the two faiths. The Shiite faith

was acknowledged by the State, and they constituted approximately 20%

of the population.

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

Commission in Matters of Asylum (Schweizerische Asylrekurskommission)

on 14 June 1993.

The Appeals Commission found inter alia that reports of

international human rights organisations did not confirm persecution

of the Shiites in Pakistan in the manner claimed by the applicant.

This was also confirmed by the Swiss Embassy at Islamabad. Insofar as

the applicant claimed that the police had failed to intervene when he

reported the particular incidence to the police, the Appeals Commission

found that this inactivity appeared to be merely local, and that the

applicant could have filed a complaint with the police superiors.

The applicant was ordered to leave Switzerland before 15 August

1993.COMPLAINTS

The applicant complains of his expulsion to Pakistan where he

alleges that he will be subjected to inhuman and degrading treatment

contrary to Article 3 of the Convention. The applicant also complains

of an "indirect" violation of Articles 2, 5, 9 and 11 of the

Convention.

In his letter of 17 July 1993 to the Commission the applicant

alleged in particular that the Sunni have intimidated and weakened the

Shiites in his home village and deprived them of their leader. Upon

return he would again be insulted and threatened, and would be hindered

in fulfilling his religious functions. The police would not intervene.

In support of this allegation the applicant submitted a

confirmation by a member of the local church that he was "a follower

of the Shiah religion".

In his submissions of 2 August 1993 the applicant claimed that

upon his return he would spend many years in prison on account of a

false report to the police. The proceedings would be unfair and

thereafter, although innocent, he would be convicted and sentenced to

death or long imprisonment.

On 7 September 1993 the applicant submitted to the Commission a

document "First Police Report" dated 1 May 1990. According to this

document a village member reported the applicant to the police as

having shot and injured his son on that date. The applicant also

submitted a letter of his lawyer in Pakistan dated 7 February 1993

according to which the police were gathering information "to enable

them to arrest (the applicant)", that "presently two cases are

registered against (the applicant)" and that his return "may result in

death penalty or at least life term imprisonment."

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 17 July 1993.

On 23 July 1993 the President of the Commission decided not to

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

On 2 August 1993 the applicant filed further submissions, and on

7 September 1993 he filed further documents. The application was

registered on 21 September 1993.

THE LAW

The applicant complains of his expulsion to Pakistan where he

alleges that he will be subjected to inhuman and degrading treatment

contrary to Article 3 (Art. 3) of the Convention. The applicant also

relies on Article 2 (Art. 2) 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 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., para. 81 et seq.).

In the present case the applicant has, first, referred to the

position of the Shiites in Pakistan. He claims that the Shiites are

intimidated and threatened by the Sunni. In this respect he also

refers to the fact that, although he was injured by Sunni on 1 January

1989, the hospital did not treat him and the police did not let him

report the incident. Moreover, on 9 May 1990 his family was driven

away from the village and his house burned down.

The Commission recalls 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).

The applicant has moreover not provided confirmation of the

incidents of 1 January 1989 and 9 May 1990. The applicant has for

instance not shown that, with the help of his lawyer, he attempted to

file complaints about these occurrences.

The applicant further refers to the fact that, although innocent,

he is being searched for by the Pakistani police. In this respect the

applicant has submitted a police report to the Commission according to

which he has been reported to the police on account of injuring another

person of his village.

However, the Commission notes that the applicant has not provided

any other official documents, for instance a warrant of arrest,

corroborating the institution of criminal proceedings against him.

In any event, the mere fact that, upon return to his home

country, a person risks the institution of criminal proceedings on

suspicion of having committed a criminal offence, cannot in itself

raise an issue under Article 3 (Art. 3) of the Convention.

The Commission finds therefore that the applicant has failed to

show that, upon his return to Pakistan, he would face a real risk of

being subjected to treatment contrary to Articles 2 and 3 (Art. 2, 3)

of the Convention.

Insofar as the applicant invokes Articles 5, 9 and 11

(Art. 5, 9, 11) of the Convention, the Commission finds no issue under

these provisions.

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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Y.M. v. SWITZERLAND

Y.M. v. SWITZERLAND

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