Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 16279/90

by A.M.

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

J. CAMPINOS

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

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 2 March 1990

by A.M. against Switzerland and registered on 8 March 1990

under file No. 16279/90;

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 is a Zambian national born in 1938. His current

place of residence is unknown. Before the commission he is

represented by Messrs. D.H. Trachsel and Ch. Klein, lawyers practising

at Zurich, and Mr. H. Cantoni, priest of the Catholic parish (Pfarrei)

St. Anton, at Zurich.

In August and September 1982 a Zurich bank received payment

orders from a Zambian bank to issue, from its account at the Zurich

bank, to four Zambian nationals upon presentation of their passports,

various sums of money amounting to approximately 2.4 million SFr. As

the account only had 50,566.10 SFr on it and the orders appeared

forged, the police were notified.

On 17 September 1982 the applicant left Zambia together with

three other Zambian nationals and travelled via Zimbabwe and Kenya to

Switzerland. They entered Switzerland on 20 September 1982.

On the same day the four persons, who were lodging at an

hotel, went to the Zurich bank concerned where they attempted to

obtain, on the basis of passports issued on other names, the sum of

approximately 2.4 million SFr, the sum appertaining to the applicant

amounting to approximately 680,000 SFr. The applicant and the other

persons were then arrested and remanded in custody on suspicion inter

alia of fraud.

In September 1982, during the ensuing criminal investigations,

two officials of the Zambian "Office for Special Investigation on

Trade and Economy" flew to Zurich to question the applicant and the

other persons. Subsequently, the Zambian authorities requested the

four persons' informal extradition to Zambia. In the applicant's

submissions, during these investigations the four persons claimed

that they had acted upon orders of a high Zambian official, Mr. Z.G.,

who was Secretary General of the Governing State Party.

On 28 January 1983 the Zurich Public Prosecutor's Office

(Staatsanwaltschaft) decided to prosecute the four persons concerned

inter alia for lodging without payment (Zechprellerei), but to

terminate (einstellen) the investigations in particular concerning the

offence of fraud. The Public Prosecutor's Office noted inter alia

that all four persons claimed to have acted bona fide and not to have

known that the payment orders were forged though the applicant and one

other person claimed to have been hired to fetch the money for an

unknown person. The decision noted that their statements were

contradictory whereas the Zambian authorities had proved uncooperative.

The decision continues:

[Translation]

"The evident interest of the Zambian authorities in an early

'extradition' of the four accused (a respective inter-State

treaty does not exist so that it was not possible to comply

with the merely informal request of the Zambian authorities)

and their persistent silence upon the request for letters

rogatory by the Zurich District Attorney's Office leaves a

certain room for the assumption that higher circles are

involved in this matter, possibly even that political motives

are given - as C.M. stated off the record."

[Original]

"Das offenkundige Interesse der zambischen Behörden an einer

baldmöglichsten 'Auslieferung' der vier Angeschuldigten (ein

diesbezügliches zwischenstaatliches Abkommen existiert indessen

nicht, so dass dem bloss informellen Ersuchen der zambischen

Behörden nicht stattgegeben werden konnte) und ihr beharrliches

Schweigen auf das Rechtshilfeersuchen der Bezirksanwaltschaft

Zürich lässt der Annahme, dass höhere Kreise in die Sache

verwickelt sind, möglicherweise gar politische Motive

dahinterstecken - wie von C.M. ausserhalb des Protokolls

angetönt -, gewissen Raum.

The Public Prosecutor's Office also noted that the four

persons hesitated to implicate themselves of having breached Zambian

law. The decision continues: "Evidently the accused fear at a later

stage to be brought to justice in this respect" ("Offenbar fürchten

die Angeschuldigten, zu einem späteren Zeitpunkt diesbezüglich zur

Rechenschaft gezogen zu werden").

On 16 May 1983 the Zurich District Court (Bezirksgericht)

convicted the applicant inter alia of lodging without payment and of

contravening a regulation concerning the control of hotel guests, and

conditionally sentenced him to five months' imprisonment of which

154 days' detention on remand were deducted. He was also fined 50 SFr

and ordered to leave Switzerland for three years. The other persons

were convicted on the same or similar grounds.

Subsequently, one of the other three Zambian nationals

emigrated to Australia; a second married a Swiss citizen and resides

in Switzerland; a third filed a request for asylum which is still

pending.

On 21 February 1983, while still remanded in custody, the

applicant applied for asylum. He explained that the money which he

had to fetch at the bank was evidently destined to overthrow the

governing party and he referred in particular to the interest which

two Zambian officials had displayed in his person.

On 22 February 1983 the Zurich Aliens' Police (Fremdenpolizei)

questioned the applicant. He thereby said that he came to Zurich upon

orders of the "boss". While he would have immediately returned to

Zambia if the transaction had been successful, now the situation had

changed. He claimed to be a paying member of the United National

Independent Party (UNIP) though he was not active. He further stated

that the two Zambian officials who had visited him had stated that

upon his return to Zambia he would be arrested.

The Zurich Aliens' Police then confronted him with a statement

made on 10 February 1983 according to which he wanted to return to

Zambia, even if he expected problems there. The applicant replied

thereto that he had at that stage not known that the situation in

Zambia had changed so seriously.

On 25 January 1984 the Zambian Ambassador in Rome transmitted

to the Swiss Ambassador a Note Verbale in which he "requested that

(the applicant), who is said to have expressed willingness to return to

Zambia, be so repatriated... In as far as the question of a travel

document for him is concerned the Embassy would be in a position to

issue one to him."

On 26 January 1984 the Swiss Embassy in Rome forwarded this

Note Verbale to the Swiss Federal Police Office whereby it noted that

a Zambian Embassy Official could come to Switzerland to hand the

applicant a passport and an air ticket.

The applicant claims that according to a note of the

Intelligence Service (Nachrichtendienst) of the Zurich Cantonal Police

of 23 March 1984, in spring 1984 the Zambian Ambassador attempted to

consult his and other case-files of the criminal investigations. In

spring 1984 the Zambian Ambassador intended to speak in Zurich with

the applicant who apparently declined. However, the Ambassador spoke

with two other persons who had entered Switzerland with the applicant

and told them that upon their return to Zambia they would only be

prosecuted for forging passports.

On 16 August 1984 the applicant explained to the Federal

Police Office that he would rather be dead than return to Zambia.

While in Zambia he had been a member of the United Progress Party

(UPP) which aimed at overthrowing the Government. As such he had

recruited new members and coordinated activities. He had been

arrested and remanded in custody during six months and he had been

regularly beaten by the Zambian authorities. He stated that he had

not explained this at the previous interrogation as he had been

traumatised by the two Zambian officials who had visited him.

On 11 August 1987 the Delegate for Refugees (Delegierter für

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

not appearing sufficiently credible. Thus, the applicant had on

16 August 1984 mentioned for the first time that he had been remanded

in custody in Zambia, and that he would suffer disadvantages upon his

return on account of his political activities. He had also not given

credible reasons for this change of statement.

The Delegate further considered that the applicant's knowledge

of the UPP was not always correct. He had also waited four months

after Zambian officials visited him in September 1982 until requesting

asylum. Finally, the Delegate noted that the applicant's lawyer had

on 21 February 1983 written to the Zurich Aliens' Police, expressing

the applicant's wish to return to Zambia. This was confirmed by the

Zambian Ambassador's Note Verbale of 25 January 1984.

On 13 August 1987 the applicant's lawyer applied to the

Delegate for Refugees for access to the case-file. The latter

transmitted to him on 17 August 1987 photocopies of "the essential

documents" ("die wesentlichen Unterlagen").

On 30 September 1987 the applicant filed an appeal (Beschwerde)

against the Delegate's decision of 11 August 1987. Therein, he

explained inter alia that he had originally told the Swiss authorities

that he was a member of the UNIP as any other statement would have

brought him into difficulties upon his return to Zambia. The

applicant claimed that he had in general correctly explained the

political situation in Zambia and also referred to the decision of the

Public Prosecutor's Office of 28 January 1983 (quoted under I above).

The applicant emphasised that it was incorrect if on

25 January 1984 the Zambian Ambassador had written that the applicant

wished to return to Zambia, since he had clearly stated the contrary

on 22 February 1983 to the Zurich authorities. Insofar as the

Delegate for Refugees referred in his decision to a letter of

21 February 1983 the applicant pointed out that this letter had not

been among the documents of the case-file transmitted to his lawyer

on 17 August 1987 for which reason it should not be considered. The

applicant also referred to the interest shown by the Zambian

authorities as indicating the political background of his case.

Finally, the applicant submitted that in Zambia unlimited

detention without judicial guarantees was normal in view of the

President's unfettered powers with regard to public security.

On 6 September 1989 the Federal Department of Justice and

Police dismissed the applicant's appeal.

In its decision, which numbered ten pages, the Department

noted various discrepancies (Ungereimtheiten) in the applicant's

statements. Thus, he had given different descriptions of his

political activities in Zambia, and the reasons given for changing

these statements were not convincing. Moreover, the applicant himself

had on 21 February 1983 expressed his wish to return to Zambia; the

letter concerned had been shown to the applicant's lawyer during the

appeal proceedings. The Department noted that the applicant had

expressed this wish after the two Zambian officials had visited him.

Insofar as the applicant claimed that the Zambian authorities had

personally concerned themselves with his person, the Department

considered that this was not unusual in view of the large sum of money

involved and the importance of the person concerned, Mr. Z.G. The

Department also noted that the applicant had only in 1984 referred to

detention to which he had been subjected in Zambia.

Finally, the Department saw no indication that upon his return

to Zambia the applicant would be subjected to inhuman treatment

contrary to Article 3 of the Convention.

On 12 September 1989 the Delegate for Refugees ordered the

applicant to leave Switzerland by 15 December 1989. Since then the

applicant has been in hiding.

On 21 February 1990 the Zurich St. Anton parish filed a

request with the Delegate for Refugees for reconsideration

(Wiedererwägung) of the applicant's expulsion.

By letter of 27 February 1990 the Anglican Archbishop of

Central Africa at Gaborone in Botswana, the Most Reverend W.P. Khotso

Makhulu, wrote in a letter to a Zurich asylum organisation with regard

to the applicant:

"I am informed by reliable sources that prisoners, especially

those charged on security grounds are tortured. Given the

interest shown by the Zambian authorities in your client,

without formally applying for extradition, I would strongly

advise that he does not entertain returning to Zambia under any

circumstances. It is alleged that there is a tendency for such

people to disappear without a trace."

COMPLAINTS

The applicant complains of his imminent expulsion to Zambia

where he will be subjected to treatment contrary to Article 3 of the

Convention. He submits that the Swiss authorities did not

sufficiently consider the possibility of such treatment or the lack of

judicial guarantees upon a person's detention in that State.

The applicant alleges that the attempted money transaction was

organised by the second most important person in the Zambian

Government, Mr. Z.G., and the Swiss authorities failed to consider the

difficulties which arose if he directed accusations against this

person. The applicant refers here to the considerations of the Zurich

Public Prosecutor's Office as well as to the quite exceptional

interest which the Zambian authorities displayed in his person.

The applicant, who states that he is considering suicide,

finds it difficult to prove the danger which will await him in Zambia.

He substantiates his various allegations with reference to a Report of

Amnesty International and the letter of the Archbishop of Central

Africa of 27 February 1990.

THE LAW

1. The applicant complains that if he is expelled to Zambia 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 Commission notes that the applicant

is now no longer alleging, as he did before the Swiss authorities,

that upon his return to Zambia he will suffer inhuman treatment

contrary to Article 3 (Art. 3) of the Convention on account of his

previous political activities, resulting at one stage in his

detention in Zambia.

Rather, before the Commission the applicant is now alleging

that, on account of the occurrences at the Zurich bank, and his

explanations therefor before the Zurich police, namely that he had

implicated an important person in the Zambian Government, he will

suffer severe retributions upon his return to Zambia. The applicant

thereby also refers to reports about the situation in Zambia,

mentioning some instances of ill-treatment.

The Commission considers 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 falls to the

applicant to substantiate such danger with regard to his own situation

in that country.

As a result, the Commission also finds that the considerations

of the Zurich Public Prosecutor's Office in its decision of

28 January 1983, which were of a speculative nature, cannot serve to

substantiate such a danger in a sufficiently concrete manner.

It is true that the applicant has emphasised the interest

which the Zambian authorities displayed in his person.

However, the Commission considers that the attempts of the

Zambian authorities to speak with him or to request his informal

extradition to Zambia, which occurred between six and seven years ago,

do not permit a conclusion as to the present situation.

Moreover, the Commission observes that a danger of treatment

contrary to Article 3 (Art. 3) of the Convention does not directly

transpire from this request for informal extradition, the visits of

the Zambian officials in Zurich, or the Note Verbale of the Zambian

Ambassador of 25 January 1984.

Finally, insofar as the applicant submits that the interest

which the Zambian authorities displayed in his person was in itself

quite exceptional, the Commission does not find it unreasonable if, as

the Swiss authorities considered, the Zambian authorities expressed an

interest in persons who were Zambian nationals and involved in a money

transaction of 2.4 million SFr, possibly belonging to the Zambian

Government.

The Commission finds therefore that the applicant has failed

to show by means of concrete submissions concerning his situation that

the treatment in Zambia would render his expulsion contrary to Article 3

(Art. 3) of the Convention.

Insofar as the applicant may be understood as also raising

complaints under Article 2 (Art. 2) of the Convention 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

DECLARES THE APPLICATION INADMISSIBLE.

Deputy Secretary to the Commission President of the Commission

(J. RAYMOND) (C.A. NØRGAARD)

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A.M. v. SWITZERLAND

A.M. v. SWITZERLAND

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