Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 16217/90

by C.T.

against Switzerland

The European Commission of Human Rights sitting in private

on 16 March 1990, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

Mr. F. MARTINEZ

Mr. L. LOUCAIDES

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

14 February 1990 by C.T. against Switzerland and registered

on 26 February 1990 under file No. 16217/90;

Having regard to the report provided for in Rule 40 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, a Turkish citizen born in 1957, resides at

Rümlang in Switzerland. Before the Commission he is represented by

Mr. K. Sintzel, a lawyer practising at Zürich.

Since 1979 the applicant has been a sympathiser of the marxist-

leninist TKP/ML Party. As such he put up posters for the party and

distributed leaflets in front of schools and factories. In 1979 he

was detained during eleven days following a dispute between trade

union members and employers.

In October 1987 the applicant was arrested and detained at the

Yüregir/Adana police station. Two days later he was able to flee

through the toilet window. As to the circumstances of this arrest,

the Swiss authorities have pointed out certain contradictions in the

applicant's statements. According to one statement he had been

arrested during an identity control, whereas on another occasion he

had stated that his arrest occurred while he was hanging up posters

together with two friends.

In February 1988 he was again arrested, though by bribing an

official he was able to go free. According to one statement made

before the Swiss authorities he had been released after three days,

but on another occasion he had stated that the release took place

already after three to four hours.

In April 1988 he met with seven colleagues in order to discuss

events on 1 May. Police appeared, though the applicant was able to

flee with two colleagues. The latter were arrested four months later.

After fleeing, the applicant lived in Adana and Western and

Southern Turkey and worked illegally on building sites. At this stage

a lawyer told him that a warrant of arrest had been issued against him

since May 1988 on the grounds of his political activities for the

TKP/ML Party. The lawyer also told the applicant that every ten days

the police visited his family to inquire about his whereabouts.

On 23 August 1989 the applicant left Turkey via Istanbul

airport.

The applicant entered Switzerland on 24 August 1989. On

25 August 1989 he filed a request for asylum with the Swiss

authorities. The applicant was questioned by the authorities as to

his request on 25 August 1989 at Chiasso in Switzerland and on

29 September 1989 by the Zurich authorities.

On 1 November 1989 the Delegate for Refugees (Delegierter für

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

ordered him to leave Switzerland within five days after the decision

had obtained legal force.

In the decision the Delegate for Refugees first considered

that there existed doubts as to the applicant's alleged political

engagements, in particular, as he had given incorrect descriptions of

various aspects of the TKP and TKP/ML Party.

The Delegate further found various inconsistencies in the

applicant's submissions, for instance as to his arrests in 1987 and

1988. The Delegate also noted that, if the Turkish authorities had

intended to arrest the applicant, they could have done so until April

1988 until which date the applicant still lived with his family.

Thereafter, despite the alleged danger of arrest the applicant still

spent 16 months in Turkey, even working on building sites.

The Delegate also considered that the applicant had himself

applied for a passport with the Turkish authorities without being

arrested. If, as the applicant alleged, the passport was obtained by

means of bribery, it would not have been made out in his own name.

Finally, the Delegate noted that the applicant had left Turkey via

Istanbul airport. If the applicant was wanted by the Turkish

authorities, even if he had bribed an official, he could have been

arrested at one of the several airport controls.

The applicant filed an appeal (Beschwerde) against this

decision in which he submitted a warrant of arrest issued by the

Turkish authorities against him. This appeal was communicated to the

Delegate for Refugees who in his observations qualified the warrant of

arrest as a forged document. The applicant replied thereto inter alia

that the applicant's lawyer had received the original warrant of

arrest directly from a Court at Adana in Turkey. Moreover, the

document was clearly valid, although a signature of the Court

Secretary was missing.

On 26 January 1990 the appeal was dismissed by the Federal

Department of Justice and Police (Eidgenössisches Justiz- und

Polizeidepartement) which upheld the considerations of the Delegate

for Refugees. With regard to the warrant of arrest submitted by the

applicant, the Department concluded that the document was forged. The

Department noted inter alia that the applicant had handed in an

original document which normally went to the authorities rather than

to the person to be arrested. Moreover, such a document would imply

that criminal proceedings had been instituted against the applicant

which he himself did not allege. Furthermore, the document was

incomplete in that a signature was missing.

COMPLAINTS

1. The applicant now complains under Article 3 of the Convention

of his imminent explusion to Turkey. He claims that he is wanted in

Turkey as he belonged to the marxist-leninist TKP/ML party. Upon his

return to Turkey he would thus be arrested. Experience moreover showed

that he would then be subjected to torture and inhuman treatment

contrary to Article 3 of the Convention.

2. The applicant further complains, apparently under Article 6 of

the Convention, that the proceedings before the Swiss authorities were

unfair in that he was not sufficiently heard. He complains in

particular that the Federal Department of Justice and Police, in its

decision of 26 January 1990, qualified the warrant of arrest as a

forged document without giving him the opportunity to present further

evidence.

PROCEEDINGS BEFORE THE COMMISSION

The applicant was introduced on 14 February 1990 and

registered on 26 February 1990.

On 20 February 1990 the President decided not to apply Rule 36

of the Commission's Rules of Procedure.

THE LAW

1. 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 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 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).

In the present case the applicant has referred before the

Commission mainly to general experience in order to substantiate his

allegation that upon his return to Turkey he will be subjected to

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

Insofar as the applicant may be understood as referring to the

submissions he made before the Swiss authorities, the Commission notes

that the latter found various inconsistencies in the applicant's

statements.

In particular, the Swiss authorities considered that the

applicant had been able to live with his family after being released

from his arrest in February 1988 until April 1988, and that

thereafter, although a warrant of arrest had allegedly been issued

against him, he still would have spent 16 months in Turkey,

occasionally working on building sites. They also noted the

applicant's statement that he had been able to leave Turkey via

Istanbul airport where he had to pass several controls of the Turkish

authorities. The Swiss authorities further considered that the

warrant of arrest submitted by the applicant in the appeal proceedings

was forged inter alia as one signature was missing.

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

submissions raise certain doubts as to their accuracy.

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 the Commission notes that 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 Turkey authorities.

This part of the application must therefore be rejected as

being manifestly ill-founded within the meaning of Article 27

(Art. 27) of the Convention.

2. The applicant further complains, apparently under Article 6

para. 1 (Art. 6-1) of the Convention, of unfairness of the asylum

proceedings, in particular before the Federal Department of Justice

and Police.

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 rights or obligations or of a criminal charge within the

meaning of Article 6 para. (Art. 6-1) 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.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE.

Deputy Secretary to the Commission President of the Commission

(J. RAYMOND) (C.A. NØRGAARD)

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C.T. v. SWITZERLAND

C.T. v. SWITZERLAND

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