Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 15693/89

by D.

against Switzerland

The European Commission of Human Rights sitting in private

on 2 September 1991, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

Sir Basil HALL

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

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 October 1989

by D. against Switzerland and registered on 25 October

1979 under file No. 15693/89;

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 applicant is a Turkish citizen born in 1945, who is

currently in Switzerland with no permanent residence. Before the

Commission he is represented by Mr. W. Spirig, a lawyer practising at

Berne in Switzerland.

The facts submitted may be summarised as follows.

I.

While residing in Turkey the applicant owned a shoemaker shop

at Cavdir. He was a member of the opposition party "Sosial Halkci

Partisi (SHP)". Together with other persons he participated in a

demonstration early in 1986 to protest about the ill-treatment of a

person by the police commander of a police station. As a result, he

was arrested together with 40-50 other persons. The applicant was

then detained for ten days. During two days he was beaten and

tortured by this police officer. Upon release, a doctor confirmed in

a certificate dated 15 February 1986 injuries on his back, arm, thumb

and head, and prescribed three days' sick leave.

The applicant introduced a disciplinary complaint against the

responsible police officer whereupon criminal proceedings were

instituted against the officer. On 22 March 1988 the officer was

sentenced to 18 months' imprisonment as well as 18 months' prohibition

of service.

According to the applicant's original submissions before the

Swiss authorities he left Turkey on 16 November 1988 (see below II).

According to his later submissions before the Swiss Federal Council

(Bundesrat) he left Turkey on 28 June 1986 and then resided illegally

in Austria (see below IV).

II.

On 20 November 1988 the applicant illegally entered

Switzerland. On 21 November 1988 he requested asylum at Chiasso in

Switzerland whereupon on 22 November 1988 he was questioned by the

authorities. Apparently during this time he no longer had a passport

in his possession.

On 6 January 1989 the applicant was questioned by the Delegate

for Refugees (Delegierter für das Flüchtlingswesen). The applicant

stated that after the incident in 1986 he lived in fear of the

governing party, particularly as he was ordered from time to time to

appear at the local police station where he was questioned. The

applicant further explained that he delayed his departure from Turkey

until 1988 as he had to sell his business and prepare his trip.

On 16 January 1989 the Delegate for Refugees dismissed the

applicant's request for asylum. In the Delegate's opinion, the period

of two and a half years between the incident in 1986 and the

applicant's departure from Turkey demonstrated that the applicant had

not left Turkey in 1988 on account of a threat of serious

disadvantages. There were also considerable doubts as to the

applicant's status in the SHP. The decision noted inter alia that the

applicant had made incorrect statements in particular as to the

membership card.

III.

The applicant appealed against this decision to the Federal

Department of Justice and Police (Eidgenössisches Justiz- und

Polizeidepartement). During the appeal proceedings he submitted a

copy of the judgment of the Turkish court which convicted and

sentenced the police officer concerned.

Meanwhile the applicant was told that his bag had been found

which, after entering Switzerland, he had lost at Zurich station with

his passport inside. According to a subsequent statement of the Lost

Property Central Office of the Swiss Federal Railway of 24 October

1989, the applicant fetched his bag on 20 February 1989 at the Lost

Property Central Office in Zurich.

The applicant filed further submissions with the Federal

Department of Justice and Police on 21 February and 7 April 1989.

On 21 April 1989 the Department dismissed the applicant's

appeal. The Department considered that the incidents of which the

applicant complained could not be attributed to the State since the

police officer had meanwhile been convicted. The Department also

cited the applicant's express statements when questioned by the

Delegate for Refugees: "after 1986? We were not beaten and tortured

... Since 1986 there has been no incident any more" ("nach 1986?

Wir wurden nicht geschlagen und nicht gefoltert ... Seit 1986 ist

kein Ereignis mehr geschehen"). The Department further found that the

occurrence after 1986, namely the applicant's questioning at the

police station, did not suffice to grant him refugee status.

IV.

Against this decision the applicant filed on 27 October 1989 a

hierarchical appeal (Aufsichtsbeschwerde) with the Federal Council.

In these proceedings he submitted photocopies of his passport which he

had meanwhile found according to which he had left Turkey on 28 June

1986; he claimed that he had travelled via Bulgaria, Romania, Hungary

and Yugoslavia to Austria where he had resided illegally until

November 1988 when he entered Switzerland.

On 22 August 1990 the Federal Council dismissed the

complaint. It noted that the applicant had failed to inform the

previous instances of his new submissions about his illegal stay in

Austria. In any event the fact that he did not apply for asylum in

Austria demonstrated that he did not fear persecution in Turkey.

Moreover, he had twice applied to the Turkish Consulate in Vienna for

a prolongation of his passport. The Federal Council concluded that

this conduct did not give rise to the assumption that he had feared

ill-treatment upon his return to Turkey.

COMPLAINTS

The applicant complains under Articles 3 and 8 of the

Convention of his threatened expulsion to Turkey, where he fears

ill-treatment. He refers to the general situation in Turkey as well

as to the uncontested fact that he had been tortured in 1986. He

fears that the police officer concerned will again commit similar acts

or that similar acts will happen elsewhere to him in Turkey.

The applicant submits that originally he did not tell the

Swiss authorities that he did not directly flee to Switzerland. He

points out that upon his unlawful entry into Switzerland he lost his

bag with his passport at Zurich station. He only recovered the bag

and the passport on 20 February 1989. He submits that the Federal

Council's decision did not sufficiently consider that he feared a

repetition of ill-treatment on account of his previous persecution.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 20 October 1989 and

registered on 25 October 1989.

On 25 October 1989 the President decided not to apply Rule 36

of the Commission's Rules of Procedure.

Upon the request of the applicant's lawyer in the application,

the proceedings before the Commission were adjourned pending the

outcome of a hierarchical complaint filed with the Swiss authorities.

On 19 November 1990 the applicant requested a further

adjournment in order to file additional submissions. The applicant

filed his further submissions on 20 February 1991.

THE LAW

The applicant complains that if he is expelled to Turkey 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 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 risk 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.).

In the present case the Commission considers that apart from

references to the general situation in Turkey the applicant's

submissions concern mainly an incident early in 1986 when he was

allegedly ill-treated by a police officer.

However, the Commission notes that the police officer in

question has meanwhile been sentenced to imprisonment on account of

his conduct. The applicant has not provided sufficient further

substantiation for his allegation that upon his return to Turkey after

many years he will again risk the same treatment by the police officer

at his home town. He has in particular not substantiated his

allegation that he would risk such treatment elsewhere in Turkey.

The Commission furthermore notes various unexplained

inconsistencies in the applicant's submissions before the Swiss

authorities, in particular as to the period of time between the

incident in 1986 and November 1988 when he entered Switzerland.

As a result, the Commission considers that the applicant's submissions

raise doubts as to their accuracy.

The Commission furthermore considers that the applicant has

not sufficiently explained before the Commission the reason why,

although he feared persecution upon his return to Turkey, he did not

apply for asylum during his stay in Austria.

In view of the above the Commission cannot find the

circumstances to be such as to warrant the conclusion that the

applicant's expulsion would be contrary to Article 3 (Art. 3) of the

Convention on account of a risk of ill-treatment in Turkey.

In any event after his return to Turkey the applicant can

bring an application before the Commission under Article 25 (Art. 25)

of the Convention in respect of any violation of his Convention

rights by the Turkish authorities.

Insofar as the applicant also complains under Article 8

(Art. 8) of the Convention of his impending expulsion to Turkey, the

Commission finds no issue under this provision.

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 unanimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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D. v. SWITZERLAND

D. v. SWITZERLAND

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