Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 21958/93

by N.K.

against Switzerland

The European Commission of Human Rights (First Chamber) sitting

in private on 30 June 1993, the following members being present:

MM. F. ERMACORA, Acting President of the First Chamber

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Sir Basil HALL

Mr. C.L. ROZAKIS

Mrs. J. LIDDY

MM. M. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

Mrs. M.F. BUQUICCHIO, Secretary to the First 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 24 May 1993 by

N.K. against Switzerland and registered on 2 June 1993 under file No.

21958/93;

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 of Albanian origin and a national of former

Yugoslavia. He was born in 1965. An accountant by profession, he

lived in Kosovo before travelling to Switzerland. He has not specified

his current place of residence in Switzerland. Before the Commission

he is represented by Ms. Isabelle Merk, a lawyer practising in Lucerne.

I.

According to the applicant's submissions, he has long been

involved in movements whose aim is the independence of Kosovo. Thus,

in 1981, at the age of 16 he participated in demonstrations for this

cause.

In 1985 the applicant took over his deceased father's position

as an accountant.

On 3 November 1989 the applicant participated in a demonstration

in the course of which he was arrested and brought to the Pristina

police station. Without being brought before a judge or having contact

with a lawyer, he was remanded in custody for 48 hours. During this

time he was interrogated and beaten. Two days later, on 5 November

1989, the trial took place before the Pristina District Court. As a

result the applicant was convicted and sentenced to 60 days'

imprisonment. In these proceedings he was not represented by a lawyer.

His appeal was dismissed without grounds on 8 November 1989.

The applicant served 57 days in a prison in Dubrava. During the

first week he was asked under physical and psychological pressure to

participate in the Serbian secret service. During the remaining period

he was regularly beaten.

Upon the applicant's release he intensified his political

activities. He joined the newly-founded LDK, a political party of

Kosovo Albanians. The applicant organised demonstrations and

participated in meetings, always with a view to the independence of

Kosovo. During this period of time he was twice questioned by State

security officials; each time he was asked to participate in the

security service.

In view of the applicant's political activities he lost his

employment in 1991.

In 1992 the LDK appointed the applicant vice-president of the

electoral committee of the Pristina District. It was his duty to

examine the correct conduct of the parliamentary elections of 1992.

As a result, the Serbian authorities declared him an unwanted person.

In June 1992, the police unsuccessfully searched for him at his

home. On 1 July 1992 the police, who had a warrant of arrest against

him, searched his house in his absence. The applicant then decided to

go into hiding.

In August 1992 the applicant decided to flee to Switzerland.

II.

On 11 August 1992 the applicant applied for asylum in

Switzerland. In support of his application he submitted, inter alia,

a warrant of arrest.

His request was dismissed by the Federal Office for Refugees

(Bundesamt für Flüchtlinge) on 18 December 1992.

In its decision the Federal Office regarded it as credibly

established that the applicant had undergone the prison sentence.

However, it considered that the prison sentence could no longer be

regarded as relevant as it had taken place a long time before. The

same consideration applied to his questioning by State security

officials.

The Federal Office also identified the warrant of arrest

submitted by the applicant as clearly being falsified. It further

found that there was no civil war in Kosovo, and that the applicant

could be expected to return to his home country.

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

Commission (Schweizerische Asylrekurskommission) on 20 April 1993,

which confirmed the conclusions of the Federal Office. The Commission

found that the applicant would not suffer persecution either in Kosovo

or in Macedonia.

The applicant was then ordered to leave Switzerland by 25 May

1993. On 19 May 1993 the applicant applied for reconsideration of his

situation (Wiedererwägungsgesuch). He also requested that his

application be granted suspensive effect.

COMPLAINTS

The applicant complains under Articles 2 and 3 of the Convention

of the order to leave Switzerland. He claims that upon his return to

Kosovo he will have to undergo court proceedings on account of his

political activities; the applicant refers here to his prominent

position in the LDK and to his previous conviction. Allegedly the

proceedings are notoriously unfair, and torture and inhuman treatment

will be systematically applied. The applicant submits that Albanians

are generally persecuted in Kosovo.

The applicant explains that he submitted a false warrant of

arrest to the Swiss authorities as he was under pressure to find

protection from persecution.

In support of his application before the Commission the applicant

submits, inter alia, the judgment of the Pristina District Court, as

well as a confirmation of his LDK membership dated 13 January 1993.

The applicant also submits a report of Caritas Switzerland on the

general situation in Kosovo.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 24 May 1993 and registered on

2 June 1993.

On 27 May 1993 the President decided not to apply Rule 36 of the

Commission's Rules of Procedure.

THE LAW

The applicant complains that he has been ordered to leave

Switzerland. He alleges that upon his return to Kosovo he will suffer

treatment contrary to Articles 2 and 3 (Art. 2, 3) of the Convention,

which respectively protect the right to life and prohibit inhuman and

degrading treatment.

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 Commission notes that the evidence

submitted by the applicant in support of his allegations of ill-

treatment in Kosovo is documents relating to his detention in 1989.

The Commission observes that in the light of these documents the

Federal Office for Refugees in its decision of 18 December 1992

regarded it as established that the applicant had served a prison

sentence.

Nevertheless, in the Commission's opinion, these documents,

concerning events in 1989, cannot serve to substantiate alleged

persecution forcing the applicant to flee Kosovo three years later in

1992. Moreover, the applicant does not claim that criminal proceedings

were pending against him when he left Kosovo, or that any warrant of

arrest or search warrant had been issued against him which prompted his

departure in 1992, or that such documents were issued after he arrived

in Switzerland.

In the Commission's opinion the applicant has not sufficiently

demonstrated that, in view of his support of the LDK, he was tortured

or ill-treated by the authorities before he left Kosovo, or that upon

his return to Kosovo he will risk such treatment.

Insofar as the applicant refers to the situation in Kosovo in

general and submits a report of Caritas Switzerland in support of these

allegations, 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 Commission finds therefore that the applicant has failed

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

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

of the Convention.

It follows that the application is 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 First Chamber Acting President of the

First Chamber

M.F. BUQUICCHIO F. ERMACORA

Menu

N.K. v. SWITZERLAND

N.K. v. SWITZERLAND

LEXI