Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 21840/93

by M.Y., F.Y., B.Y.

and S.Y.

against Switzerland

The European Commission of Human Rights sitting in private on

14 May 1993, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

G. SPERDUTI

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

M.A. NOWICKI

I. CABRAL BARRETO

Mr. M. de SALVIA, Deputy 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 7 May 1993 by

M.Y., F.Y., B.Y. and S.Y. against Austria and registered on 13 May 1993

under file No. 21840/93;

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 applicants, may be

summarised as follows:

The first applicant was born in 1952. The second applicant, born

in 1963, is his wife. The third applicant, born in 1982, and the

fourth applicant, born in 1986, are their children. The applicants are

Turkish citizens. Before the Commission they are represented by Mr H.

Vest, a lawyer practising in Aesch in Switzerland.

I.

The applicants make the following factual claims:

In 1988 the applicants were residing at Alcicek in the Elbistan

district in the Kahramanmaras province. Towards the end of 1988 the

first applicant commenced his support of the Kurdish Workers' Party,

the PKK. Thus, he had to provide, or pass on, food, money and

information.

Eventually, a member of the PKK was arrested; under torture he

mentioned the names of various other persons, including the first

applicant. The latter was then arrested and brought to the Nurhak

police station, where he was detained for 24 hours. During this period

he was beaten and ill-treated with cold water. Subsequently, he was

released for lack of evidence.

On 8 March 1989 he was again arrested by the police and brought

to the Elbistan police station, where he was detained for three days.

During this period he was again ill-treated. Subsequently, he was

released for lack of evidence. It appears that thereafter the first

applicant had to stay in bed for three or four days.

In July 1989 another PKK member revealed under torture the first

applicant's name. As a result, the applicants' house was searched by

the authorities. However, only the second applicant was present. The

authorities confiscated material pertaining to the PKK as well as a

photo of the first applicant. The second applicant had to sign a

document and was then brought to the police station where she was

beaten.

Thereafter, the applicants' house was constantly under

surveillance. The first applicant went into hiding in Izmit and later

in Adapazari.

Meanwhile PKK members apparently killed two persons in Alcicek

who had betrayed the organisation. The authorities also installed a

permanent post in the school house of Alcicek. In view thereof the

applicants decided to leave Turkey.

II.

The applicants left Turkey on 7 December 1989. They entered

Switzerland on 11 December 1989 and applied for asylum.

On 12 December 1989, when questioned by the Swiss asylum

authorities, the applicants claimed that they had been persecuted in

Turkey in view of their support of the PKK. The applicants were again

questioned on 12 January 1990 and 20 October 1992.

On 25 November 1992 the Federal Office for Refugees dismissed the

applicants' requests for asylum.

In its decision the Federal Office considered in the light of

various contradictions that the applicants' submissions lacked

credibility. For instance, while the first applicant had originally

claimed that he had been a member of the PKK, he later denied this.

Originally he had stated that he had been arrested together with three

persons; later he stated that eight to ten persons had been arrested.

Moreover, originally he stated that while hiding in Izmit he had

telephoned his wife; later he claimed that this had not been the case.

The Federal Office further noted that no court proceedings had

been instituted against the first applicant in Turkey. The second

applicant had moreover not been able to substantiate her claims.

Insofar as the applicant had submitted letters of various persons

supporting his claims, these statements did not coincide with the

applicants' previous submissions for which reason they had to be

considered as partisan (Gefälligkeitsschreiben).

The applicants filed an appeal against this decision to the Swiss

Asylum Appeals Commission (Schweizerische Asylrekurskommission) in

which they claimed inter alia that, contrary to the conclusions of the

Federal Office, the first applicant had not contradicted himself.

The applicants' appeal was dismissed by the Asylum Appeals

Commission on 23 March 1993.

The Appeals Commission found that the applicants' appeal

submissions could not change the conclusions of the Federal Office.

Had the first applicant worked so closely with the PKK, court

proceedings would most certainly have been introduced against him.

Insofar as the applicants submitted newspaper articles, these failed

to demonstrate an individual danger to the applicants.

The applicants have been ordered to leave Switzerland by 15 July

1993.COMPLAINTS

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

order to leave Switzerland. They claim that the first applicant, upon

his return to Turkey, will immediately be arrested, tortured and

prosecuted for having supported the PKK. The applicants point out that

the first applicant was twice arrested, detained and ill-treated on

account of his activities for the PKK.

The applicants have submitted official documents according to

which one political friend of the first applicant, H.V., was killed in

a clash (bei einem Zusammenstoss) by the security forces in 1991;

another PKK member, A.B., was killed by the military forces in 1992.

The applicants have further submitted letters of various persons

from Alcicek and surroundings who can confirm that the first applicant

worked for the PKK. They have also submitted newspaper articles

according to which the authorities have vacated Alcicek and deported

all persons supporting the PKK.

2. The applicants complain under Article 6 of the Convention of the

manner in which the authorities dealt with their case in the asylum

proceedings.

3. Under Article 8 of the Convention the applicants claim that if

the first applicant cannot be expected to return to Turkey, this must

also apply to the second, third and fourth applicants who are family

members.

4. Under Article 13 of the Convention the applicants complain that

in view of the manner in which their case was dealt with by the

authorities they did not have an effective remedy at their disposal.

5. Finally, the applicants submit that their asylum requests were

apparently dismissed as they are unwanted foreigners and members of a

suppressed ethnic minority (wenn das Asylgesuch eines Ausländers

letzlich deshalb abgewiesen wird, weil er unerwünschter Ausländer und

Angehöriger einer unterdrückten ethnischen Minderheit ist). This

situation contravenes Article 14 of the Convention.

THE LAW

1. The applicants complain that they have been ordered to leave

Switzerland. They allege that upon their return to Turkey they will

be subjected to ill-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 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 Federal Office

for Refugees in its decision of 25 November 1992 dismissed the

applicants' requests for asylum, inter alia, in view of their

contradictory statements made when questioned by the Swiss authorities.

In their subsequent appeal the applicants pointed out that in fact the

first applicant had not contradicted himself. However, the Commission

need not resolve this issue since this part of the application is

inadmissible for the following reasons:

The Commission observes that the second applicant has not

provided any substantiation for her allegation that upon her return to

Turkey she would be treated in a manner contrary to Article 3 (Art. 3)

of the Convention.

The first applicant, on the other hand, has provided statements

of various persons of Alcicek and surroundings who knew him, as well

as documents demonstrating that certain persons died in clashes with

the authorities. However, the first applicant does not claim that any

criminal proceedings against him are pending or that any warrant for

his arrest has been issued.

In the Commission's opinion the first applicant has not

sufficiently demonstrated that, in view of his support of the PKK, he

was tortured or ill-treated by the authorities; or that upon his return

to Turkey he will risk such treatment.

Insofar as the applicants refer to clashes with the authorities

in the area where they lived, and to various newspaper articles

concerning the situation in Alcicek, 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).

In the present case the applicants have not shown that upon their

return to Turkey they could not take up residence in other parts of the

country.

The Commission finds therefore that the applicants have failed

to show that, upon their return to Turkey, they would face a real risk

of being subjected to treatment contrary to Article 3 (Art. 3) of the

Convention.

It follows that this part of the application is manifestly ill-

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

the Convention.

2. The applicants complain under Article 6 (Art. 6) of the

Convention of the manner in which the authorities dealt with their case

in the asylum proceedings.

However, the Commission recalls its case-law according to which

a decision as to whether an alien should be allowed to stay in a

country or be expelled does not involve either the determination 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).

It follows that this part of the application is incompatible

ratione materiae with the provisions of the Convention within the

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

3. The applicants complain that, if the first applicant cannot be

expected to return to Turkey, this must also apply to the second, third

and fourth applicants who are family members. The applicants rely on

Article 8 (Art. 8) of the Convention which guarantees to everyone,

inter alia, "the right to respect for his ... family life".

However, the Commission has just found that the applicants have

failed to show that, if they returned to Turkey, they would face a real

risk of being subjected to treatment contrary to Article 3 (Art. 3) of

the Convention. Hence, no issue of a separation of family members

arises. It follows that this part of the application is manifestly

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

Convention.

4. Insofar as the applicants complain under Article 13 (Art. 13) of

the Convention that they did not have an effective remedy at their

disposal, the Commission notes that the applicants' request for asylum

was dealt with by the Federal Office for Refugees and, upon appeal, by

the Swiss Asylum Appeals Commission. Hence, the applicants had an

effective remedy at their disposal within the meaning of Article 13

(Art. 13) of the Convention. This part of the application is therefore

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

(Art. 27-2) of the Convention.

5. Finally, the applicants complain under Article 14 (Art. 14) of

the Convention that their requests for asylum were dismissed as they

are unwanted foreigners and members of a suppressed ethnic minority.

However, the Commission finds no evidence in the case-file which could

substantiate such an allegation under this provision. It follows that

the remainder of 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.

Deputy Secretary to the Commission President of the Commission

(M. de Salvia) (C.A. Nørgaard)

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M.Y., F.Y., B.Y. AND S.Y. v. SWITZERLAND

M.Y., F.Y., B.Y. AND S.Y. v. SWITZERLAND