Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 19184/91

by S.N.

against Switzerland

The European Commission of Human Rights sitting in private on

10 April 1992, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Sir Basil HALL

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

B. MARXER

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 20 November 1991

by S.N. against Switzerland and registered on 10 December 1991 under

file No. 19184/91;

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

Particular circumstances of the case

The facts of the case, as submitted by the parties, may be

summarised as follows.

The applicant, a Pakistani citizen born in 1958 in Sialkot in

Pakistan, is a vendor currently residing at an unspecified place in

Switzerland. Before the Commission he is represented by

Mr. Th. Wenger, a lawyer practising in Berne.

I.

Until 1989 the applicant resided in Pakistan. He eventually left

Pakistan on account of his conversion to the Christian faith.

According to a document issued by the "Young Christian Thinkers

Association" on 12 May 1989, the applicant had been a member of that

Association "since decade ... He is very religious and ... is very

active in all of our festival days and is full of brotherhood."

According to his submissions before the Commission, the applicant

grew up at Sialkot in Pakistan as a Moslem. However, on 13 June 1989,

the applicant married a Christian woman at the "Saint Joseph Church

Catholic" in Sialkot. The applicant has confirmed this by submitting

an excerpt of the "Marriage Register Book" as well as a letter of the

Church concerned. For purposes of the marriage, the applicant

converted to the Christian faith.

According to a warrant of arrest dated 15 June 1989, the Sialkot

Court of Magistrate ordered the applicant's warrant of arrest, stating

the offence of a "change of religion". In a pamphlet dated 18 June

1989, an Imam, a religious leader, in the suburb where the applicant

lived, urged the population to kill the applicant on account of his

conversion. The applicant's father, who disapproved of the marriage,

disinherited the applicant and expelled him from his home.

According to subsequent submissions before the Swiss authorities,

the applicant went to Karachi on 17 June 1989. According to other

submissions he first resided for some days in a Christian suburb of

Sialkot before going to Karachi.

II.

On 23 July 1989 the applicant left Pakistan for Switzerland

where, on 28 July 1989, he applied for asylum.

On 2 August 1989 the Office of the Delegate for Refugees

(Delegierter für das Flüchtlingswesen) questioned him as to his reasons

for leaving Pakistan. The applicant referred to his marriage and the

fact that the Imam had issued a threat of murder against him. The

applicant also stated that he did not know to which Christian church

he had converted, or what ceremony of baptism he had undergone.

On 22 August 1990 the applicant was questioned by the Berne

Police Inspectorate (Polizeiinspektorat). He then stated that on 17

June 1989 he had gone to Karachi. He observed that he had pains in his

ear for which reason he heard badly. Eventually the interview was

terminated on account of the applicant's pains.

The applicant was again questioned on 6 December 1990. He

explained inter alia how he had got to know his wife who lived in a

Christian suburb in Sialkot. When questioned as to his previous

statement that he had resided in Karachi from 17 June to 22 July 1989,

he now stated that he had lived for 3 - 4 days in Sialkot and then

travelled to Karachi. At his earlier interrogation he had been quite

confused.

On 19 February 1991 the Federal Office for Refugees (Bundesamt

für Flüchtlingswesen) dismissed the applicant's request for asylum.

It found that according to established knowledge (gesicherte

Erkenntnisse) of the Office, the persecution by the Imam constituted

a criminal offence which is prosecuted by the authorities. It could

not therefore be said that the Pakistani Government approved of these

acts. Moreover, according to reliable sources, a Pakistani Christian

could avoid any such molestations (Belästigungen) by moving to another

village.

The applicant's appeal against this decision, in which he alleged

persecution by different Moslem groups, was dismissed on 17 May 1991

by the Federal Department of Justice and Police (Eidgenössisches

Justiz- und Polizeidepartement) which reiterated the reasons given by

the previous instance and ordered the applicant to leave Switzerland.

III.

On 11 June 1991 the applicant obtained various documents in order

to substantiate his claims.

He obtained in particular the warrant of arrest of 15 June 1989;

the pamphlet of 18 June 1989 (see above, I.) and a "death slip" of the

Sialkot hospital, confirming the death of his wife on 15 April 1991 due

to "firearm injury". He also obtained undated letters from the "Saint

Joseph Church Catholic", one apparently from 1989 stating that the

applicant was "facing different problems in Pakistan", the other

apparently from 1991 stating that "as soon as he married with a

catholic girl he faced different kinds of problems such like Islamic

Religious"; that his wife was killed "by unfair means"; and that the

"Islamic Party in Pakistan is also seeking him". Finally, the

applicant obtained a document of his father's lawyer in Pakistan dated

8 June 1991 according to which the father had disinherited his son.

The applicant then filed with the Federal Department of Justice

and Police a request to reopen the proceedings. In support of his

request he submitted the documents obtained.

The applicant's request was dismissed by the Federal Department

of Justice and Police on 22 July 1991. The Department recalled that

only new facts warranted reopening the proceedings. It found that the

applicant had not demonstrated that the documents concerned were new

in that they could not have been submitted in the appeal proceedings.

IV.

The applicant filed a new request with the Federal Department of

Justice and Police for the reopening of the proceedings. Therein he

referred to the fact that the Christians in Pakistan, 1.3% of the

population, constituted a minority subjected to disadvantages and

reprisals. Moreover, the applicant stated that he had been unaware of

the various documents until he received them on 11 June 1991 for which

reason he could not have submitted them before. The applicant also

stated that he had heard from friends that his father had been among

the persons involved in his wife's death.

This request was dismissed by the Federal Department of Justice

and Police on 27 September 1991. It found, inter alia, that already

in his original appeal the applicant had referred to his contacts with

friends in Pakistan and to correspondence with his wife, for which

reason it would have been possible for him to obtain the documents at

issue beforehand. The Department further noted that the applicant,

when questioned upon his arrival in Switzerland, had not been able to

state to which Christian church he had converted. With reference to

the warrant of arrest submitted by the applicant, the Department noted

that "change of religion" was not a criminal offence.

On 30 September 1991 the Federal Office for Refugees informed the

applicant that he was permitted to stay in Switzerland until 15 October

1991. On 20 November 1991 the applicant introduced a hierarchical

complaint (Aufsichtsbeschwerde) with the Federal Council (Bundesrat)

against the decisions of the Federal Department of Justice and Police

of 22 July and 27 September 1991. The Federal Council dismissed this

complaint on 9 March 1992.

Relevant domestic law (Pakistan)

Section 295 of the Pakistani Penal Code refers to the offence of

"Injuring or defiling (of a) place of worship, with intent to insult

the religion of any class". According to a Commentary to this

provision, it may include any religious sect, however small in number.

Section 295-A refers to "deliberate and malicious acts intended

to outrage religious feelings of any class by insulting its religion

or religious beliefs". Sections 295-B and 295-C concern the "defiling

of the Holy Qur'an" and the "use of derogatory remarks ... in respect

of the Holy Prophet". Section 296 mentions the offence of "disturbing

religious assembly".

COMPLAINTS

The applicant complains under Article 3 of the Convention of his

impending expulsion to Pakistan. He submits that according to the

pamphlet of 18 June 1989 all Muslims have been asked to kill him on

account of his conversion to the Christian faith. Such a clear

intention also transpires from the death of his wife in April 1991.

The applicant further refers to the warrant of arrest issued by the

Pakistani authorities. It is unclear what sanction would be awaiting

the applicant; one offence would be "insulting the Islam". As the

example of Salmon Rushdie demonstrates, there is even the possibility

of a death sentence. The expected punishment must be regarded as

inhuman and thus contrary to Article 3 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 20 November 1991 and registered

on 10 December 1991.

On 19 February 1992 the Commission decided to communicate the

application to the respondent Government and invite them to submit

written observations on the admissibility and merits of the

application. The Commission also decided to give an indication under

Rule 36 of its Rules of Procedure.

The Government's observations were received by letter dated

20 March 1992. The applicant's reply was dated 8 April 1992.

THE LAW

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

Convention of his impending expulsion to Pakistan. He submits that on

account of his conversion to the Christian faith the local population

has been asked to kill him. A warrant of arrest has been issued

against him. As a result, upon his return to Pakistan he would risk

inhuman punishment contrary to Article 3 (Art. 3).

The applicant states that when questioned on 2 August 1989 he had

just undergone an operation and could not reply properly. The

documents submitted, in particular of the "Young Christian Thinkers

Association" and of the "Saint Joseph Church Catholic" are originals.

On the other hand, the applicant is not in a position to comment on the

authenticity of the warrant of arrest.

The applicant submits that the Koran prescribes the death penalty

for apostasy, that religious courts in Pakistan will apply this

penalty, and that this danger also exists with regard to State courts.

Even in Switzerland a family relative put pressure on him in this

respect. In the applicant's submissions, the Government insufficiently

distinguish between original Christians, who can live safely in

Pakistan, and converted Christians who risk reprisals such as the death

penalty. The Government have failed to show where else in Pakistan the

applicant could live in safety.

The respondent Government recall that the applicant is unable to

state precisely where he resided in Pakistan in the period after he

married and before he left Pakistan. The applicant is also unable to

describe the ceremony of baptism or even to which Christian church he

converted. Moreover, according to one document submitted by the

applicant he has been an active member of a Christian association for

years, whereas he later stated that he had recently converted to the

Christian religion. The Government further doubt the authenticity of

the warrant of arrest of 15 June 1989 and of the letters of the St.

Joseph Church Catholic. They also state that in Pakistan neither the

original nor a copy of a warrant of arrest is not handed out to the

person concerned.

The Government submit that even the new Shariat Bill, as modified

by the Pakistani Parliament in 1991, does not consider apostasy a

crime. There is no mention in the Pakistani Penal Code of an offence

of changing one's religion or of insulting the islam. While not

contesting that there may be religious fanatics who create disorder on

a local basis, the Government regard it as impossible that one Imam's

threat can have an effect all over Pakistan. Thus, the applicant

indubitably had the possibility to reside elsewhere in Pakistan.

The Government further refer to a report of the US Department of

State and of the German Embassy in Pakistan. Both documents comment

on the human rights situation in Pakistan in 1991. Neither document

refers to any persecution by the Pakistani authorities on account of

apostasy. According to the document of the US Department of State,

conversions are permitted.

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 Article 3 (Art. 3) of the

Convention in the receiving State (see No. 12102/86, Dec. 9.5.86, D.R.

47 p. 286; mutatis mutandis Eur. Court H.R., Soering judgment of 7

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

The Commission further recalls that in its examination of a

complaint under Article 3 (Art. 3) of the Convention it cannot solely

consider the general situation in a country. Rather, it is for the

applicant to substantiate such a danger with regard to his own

situation in that country (see Eur. Court H.R., Vilvarajah and Others

judgment of 30 October 1991, to be published in Series A no. 215, para.

108).

In the present case, the applicant claims, with reference to a

warrant of arrest, that upon his return to Pakistan he will be punished

on account of his change of religion.

However, the Government call in question the authenticity of the

warrant of arrest. The applicant is not in a position to comment on

its authenticity.

The Commission has therefore examined the relevant domestic law

in Pakistan. It observes that the Pakistani Penal Code does not refer

to the offence of, or the punishment for, a change of religion. The

applicant has not indicated any other Pakistani statute referring to

this offence.

In so far as the applicant refers to the punishment provided for

in the Koran, he has not furnished any information indicating that the

Pakistani courts will impose it. On the other hand, the Commission

notes the reports, submitted by the Swiss Government, of the US

Department of State and of the German Embassy in Pakistan on the human

rights situation in that country in 1991. Neither document refers to

persecution on account of apostasy. Indeed, according to the former

document conversions are permitted.

It is true that the applicant has also referred to a pamphlet of

an Imam, urging the population to kill the applicant on account of his

change of religion. The Commission has therefore examined the

circumstances concerning the applicant's residence in Pakistan.

The Commission observes in this context, first, that 1.3% of the

population in Pakistan are Christians.

Next, the Commission notes that according to a document of the

Young Christian Thinkers Association of 12 May 1989 the applicant had

been an active member of that Association for ten years.

In the Commission's opinion, in the Sialkot suburb where the

applicant lived, it must thus have been well known long before the

applicant's marriage that he was an active participant in the Christian

community, and that he was very close to the Christian faith. However,

the applicant has not claimed that before his marriage he was subject

to persecution on account of his religious beliefs.

Moreover, according to the applicant's submissions before the

Swiss authorities, rather than going to Karachi on 17 June 1989, he

still spent some days in Sialkot after the Imam had issued the

pamphlet.

Furthermore, the applicant has not provided any information

indicating that the threat issued by the Imam in Sialkot will be execu-

ted elsewhere, thus excluding a return to any other area of Pakistan.

Finally, the Commission notes the reasons given by the Swiss

authorities according to which such a persecution threatened by the

Imam would itself constitute a criminal offence subject to prosecution

by the Pakistani authorities.

In the Commission's opinion, the applicant has therefore failed

to show by means of concrete submissions concerning his situation that

the treatment he must expect in Pakistan would render his expulsion

contrary to Article 3 (Art. 3) of the Convention.

The application must therefore be rejected as being manifestly

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

Convention.

For these reasons, the Commission by a majority

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. Krüger) (C.A. Nørgaard)

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