Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 19088/91

by B.S.

against Switzerland

The European Commission of Human Rights sitting in private on

13 December 1991, the following members being present:

MM.C.A. NØRGAARD, President

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

SirBasil HALL

Mr.F. MARTINEZ

Mrs.J. LIDDY

J.-C. GEUS

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

B. MARXER

Mr.J. RAYMOND, 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 5 November 1991

by B.S. against Switzerland and registered on 18 November 1991 under

file No. 19088/91;

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

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

summarised as follows.

The applicant, an Indian citizen and Sikh born in 1969,

resides at Bern in Switzerland. Before the Commission he is

represented by Mr. W. Ilg, a lawyer practising in Bern.

On 26 November 1990 the applicant left India and, on 30

November 1990, entered Switzerland. On the same day he applied for

asylum. The applicant was questioned by the Swiss authorities as to

his request for asylum on 7 December 1990 and 13 June 1991. He

claimed that in Punjab in India he had been ill-treated as he was a

Sikh. Thus he had frequently been remanded in custody by the Indian

police who had attempted to find out the whereabouts of his brother

who had supported the "All India Sikh Students Federation". At his

last arrest he had been threatened with death if upon the next

search he was again found at his home.

On 19 July 1991 the Federal Office for Refugees (Bundesamt für

Flüchtlinge) dismissed the applicant's request. It considered inter

alia that according to information provided by human rights

organisations as well as upon inquiries on the spot (Abklärungen vor

Ort) basic human rights were protected in India which the Swiss

authorities therefore regarded as a "safe country". Moreover,

assuming that there was a danger this would be local or regional; in

view of the constitutional right in India to residence it would then

be possible to live elsewhere in the country, and there were no

indications in the concrete case which would rule out a possibility

to do so.

The applicant appealed against this decision to the Federal

Department of Justice and Police (Eidgenössisches Justiz- und

Polizeidepartement), submitting in particular the letter of an

Indian lawyer of 30 July 1991. The letter stated that members of

the party "Khalistan Commando Force" to which the applicant belonged

were being persecuted according to a decision of Parliament. The

applicant had been accused of various offences, and several warrants

of arrest had been issued against him, as he was regarded as a

terrorist. The letter warned the applicant that upon his return to

India his life would be endangered.

On 14 October 1991 the Federal Department dismissed the

appeal. In its decision it recalled that India was considered a

"safe country". Moreover, when questioned by the authorities, the

applicant had not appeared credible; thus, he had only after

repeated questioning (immer erst auf Nachfragen) mentioned instances

of ill-treatment such as torture in detention. The Federal

Department further found that the documents submitted by the

applicant in support of his allegations contradicted the statements

he made to the Swiss authorities.

On 29 October 1991 the Police Directorate (Polizeidirektion)

of the Canton of Bern ordered the applicant to leave Switzerland by

31 December 1991.

COMPLAINTS

The applicant complains under Article 3 of the Convention of

his impending expulsion to India. He submits that before his

departure from India he suffered psychological terror there; upon

his return he would risk danger and inhuman treatment.

Under Article 6 of the Convention the applicant complains that

he was not heard by an independent and impartial tribunal

established by law.

Under Article 13 of the Convention the applicant complains

that he had no effective remedy in Switzerland. He submits in

particular that the Federal Department of Justice and Police is not

a sufficiently independent body.

THE LAW

1.The applicant complains that if expelled to India he will be

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

Convention, which states:

"No one shall be subjected to torture or to inhuman or

degrading treatment or punishment."

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).

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, Series A no. 215, para. 108).

In the present case the Commission notes that the only

evidence submitted by the applicant concerning his own situation is

the translation of a letter of 30 July 1991 sent to him by an Indian

lawyer. However, the letter does not contain sufficient reasons why

criminal proceedings are pending against him or why warrants of

arrest have been issued against him as an alleged terrorist. Above

all, the letter is not accompanied by any supporting documents.

Moreover, to the extent that the applicant may be understood

to be complaining that as a Sikh he will be subject to particular

dangers upon his return to Punjab, he has not sufficiently explained

why he cannot reside elsewhere in India, particularly, as the Swiss

authorities pointed out, since he can benefit from the right under

the Indian Constitution to reside anywhere in the country.

Thus, the applicant has failed to show by means of concrete

submissions concerning his situation that the treatment in India

would render his expulsion contrary to Article 3 (Art. 3) of the

Convention.

This part of 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.

2.The applicant further complains under Article 6 para. 1

(Art. 6-1) of the Convention that he did not have access to a

tribunal within the meaning of this provision to decide on his case.

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.Insofar as the applicant complains under Article 13 (Art. 13)

of the Convention that he did not have an effective remedy, the

Commission recalls its case-law according to which the domestic

appeal introduced by the applicant satisfies the requirements of

Article 13 (Art. 13) in that it warrants sufficiently independent

proceedings before the Federal Department of Justice and Police (see

No. 12573/86, Dec. 6.3.87, D.R. 51 p. 283). It follows that this

complaint 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

(J. RAYMOND) (C.A. NØRGAARD)

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S. v. SWITZERLAND

S. v. SWITZERLAND

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