Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 14912/89

by F.

against Switzerland

The European Commission of Human Rights sitting in private

on 1 October 1990, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

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 RUIZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

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 13 April 1989

by F. against Switzerland and registered on 19 April 1989 under

file No. 14912/89;

Having regard to

- the report provided for in Rule 47 of the Rules of Procedure

of the Commission;

- the observations submitted by the respondent Government

on 25 July 1989 and the observations in reply by the applicant

on 27 September 1989;

Having deliberated;

Decides as follows:

THE FACTS

The facts submitted by the parties may be summarised as

follows.

The applicant, a Lebanese citizen born in 1954, is a teacher

and apparently of moslem faith. In 1988 he arrived in Switzerland

where he is currently hiding at an unknown place. Before the

Commission he is represented by Mr. U. Kern of the "Zürcher

Freiplatzaktion für Asylsuchende" and Mr. A. Achermann, a lawyer

practising at Berne in Switzerland.

I.

The applicant stated before the Swiss authorities that he

had worked from 1971 until 1975 in secret in Lebanon for the Arab

socialist workers' party. From 1976 until 1982 he undertook these

activities in public. From 1983 to 1985 he was involved with the

revolutionary workers' party, a Trotzkyite movement. As from 1985

onwards he ceased his political activities, while maintaining contacts

with the Lebanese communist party.

Between January and March 1988 the applicant received various

death threats, such as bullet shots, grenades, broken windows and

anonymous letters.

In 1988 the applicant applied to the Italian Embassy in Beirut

for an entry visa into Italy. This was granted on 10 March 1988 for a

period of three months.

On 27 March 1988 the applicant flew from Beirut to Sofia in

Bulgaria from where, on 28 March 1988, he travelled to Milan in

Italy. On 31 March 1988 he attempted to enter Switzerland but was

refused entry at the frontier.

II.

On 1 April 1988 the applicant entered Switzerland illegally.

On 24 May 1988 the applicant applied for political asylum in

Switzerland. He was questioned as to the reasons for his request by

the Berne Cantonal Police on 13 June 1988.

According to the minutes prepared by the Berne Cantonal Police

on that day the applicant first explained his particulars, inter alia

that he was not liable to military service in Lebanon as his

brother had already done such service, and under Lebanese law it

sufficed if one brother did so. He then referred in some detail to

his political activities until 1985. Thus, he belonged to the marxist

wing of the workers' party, as opposed to the bureaucratic wing which

was in contact with other groups, among them the Amal.

The applicant then explained the various threats he had

received. Thus on 6 February 1988 shots were fired at him at Uzai, a

Beirut suburb, on his way to Wardania where he was teaching. The Uzai

was controlled by the Amal movement and two unkwown men in civilian

clothing had fired the shots. Later, upon his return to Beirut on

29 February 1988, masked men threw a grenade at him. On 5 March 1988

he found the windows of his car riddled by bullet shots.

On 19 August 1988 the Swiss Delegate for Refugees (Delegierter

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

and ordered him to leave Switzerland not later than 31 October 1988.

In his decision the Delegate found that the activities of the

applicant in Lebanon, which were first illegal and then legal, never

resulted in a danger to his life. The Lebanese authorities had not

taken any specific and grave measures against him and could not be

made responsible for acts by third persons. The acts of which the

applicant complained were merely criminal acts committed by

individuals. The Delegate concluded that, while the applicant's

security in Lebanon could not at present be ensured to the same extent

as in times of peace, the fact that he was a victim of a general

situation nevertheless did not require the granting of asylum.

The applicant's appeal against this decision was dismissed on

15 December 1988 by the Federal Department for Justice and Police

(Eidgenössisches Justiz- und Polizeidepartement) which also ordered

the applicant to leave Switzerland within a time-limit not under six

weeks.

In its decision the Department found that the applicant had

not presented new submissions which would call in question the

previous decision. Insofar as the applicant claimed that the actions

of the Amal militia had to be qualified as dangers emanating from a

State authority, the Department noted that on 13 June 1988, when

questioned by the Berne Cantonal Police, the applicant had expressly

stated that these threats were those of unknown persons. The

Department also observed that the applicant's legal departure from

Lebanon via the Beirut airport contradicted his claims since the

Beirut airport was completely controlled by the Amal militia.

The applicant's further requests for the reopening of the

proceedings were rejected by the Delegate for Refugees on 7 February

1989 and by the Federal Department of Justice and Police on 28 March

1989.COMPLAINTS

The applicant complains under Articles 2 and 3 of the

Convention of a threat to his life if he is expelled from Switzerland

to Lebanon. He maintains that he will be persecuted in Lebanon on the

grounds of his religious beliefs and political views. He submits that

the Swiss authorities did not sufficiently consider that the Amal

militia which are persecuting him constitute a quasi-State authority.

The decision refusing his request for asylum incorrectly described and

assessed the facts.

The applicant states that he was able to leave the Beirut

airport on 27 March 1988 by bribing the airport official. As to the

attacks by the Amal militia, he points out that in areas controlled by

Amal only their members can walk around armed. As regards the

incident with the grenade, he explains that he was then driving in a

car. He thereby saw in the mirror that a car with Amal number plates

was following him and that one man in the back of the car threw the

grenade.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 13 April 1989 and registered

on 19 April 1989.

On 20 April 1989 the Acting President decided to indicate to

the Swiss Government, in accordance with Rule 36 of the Commission's

Rules of Procedure, that it was desirable in the interest of the

parties and the proper conduct of the proceedings before the

Commission not to expel the applicant until the Commission had had an

opportunity to examine the application.

Further information was submitted by the Government on

27 April and 8 May 1989 and by the applicant on 20, 25 and 27 April

1989. On 12 May 1989 the Commission decided to bring the application

to the notice of the respondent Government and invite them pursuant to

Rule 42 para. 2 (b) of the Rules of Procedure to submit observations

on the admissibility and merits of the application. The Commission

also decided not to prolong its indication under Rule 36 of the

Rules of Procedure.

On 14 June 1989 the respondent Government submitted further

information.

The respondent Government's observations on the admissibility

and merits of the application were submitted on 25 July 1989 and the

reply thereto by the applicant on 27 September 1989.

The applicant submitted further observations on the

application on 28 September 1989 and 13 July 1990.

THE LAW

The applicant complains of his expulsion to Lebanon where

he will allegedly be subjected to measures of persecution contrary to

Articles 2 and 3 (Art. 2, 3) of the Convention. Insofar as his

expulsion has not yet been enforced, the applicant contends that the

Government's position on this issue is not sufficiently precise.

The Government submit that the applicant has failed

sufficiently to demonstrate that upon his return to Lebanon he

would be subjected to the measures alleged. The Government further

observe that the expulsion order is currently not being enforced.

They state that the applicant will be notified between four to six

weeks in advance of any decision that it should be enforced.

The Commission recalls 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 instance where there is a serious

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

Convention (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, pp. 32 et seq.).

The Commission further recalls that in its previous case-law

it has left open the question whether, from the standpoint of

Article 3 (Art. 3) of the Convention, it may take into account an alleged

danger arising, not only from public authorities, but also from

autonomous groups (see No. 8581/79, Dec. 6.3.80, D.R. 29 p. 48).

In the present case the applicant submits that upon his

expulsion to Lebanon he will be subjected to measures of

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

Convention. However, the Commission notes that the Swiss authorities

have not enforced the expulsion order since 1989.

The Commission is moreover satisfied that the assurances of

the respondent Government provide sufficient guarantee that, if the

applicant's expulsion order were to be enforced, he would be granted

sufficient opportunity to challenge the execution, if possible before

the Swiss authorities, and in any event before the European Commission

of Human Rights.

As a result, there is at present no serious reason to believe

that the applicant will be subjected to treatment prohibited in Articles

2 and 3 (Art. 2, 3) of the Convention. In these circumstances, and in

particular in view of the Government's assurances, the Commission

considers that the applicant cannot at the present claim to be a

victim of the alleged violation within the meaning of Article 25

(Art. 25) 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 Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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F. v. SWITZERLAND

F. v. SWITZERLAND

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