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AS TO THE ADMISSIBILITY OF

Application No. 15099/89

by E.H.

against Switzerland

The European Commission of Human Rights sitting in private

on 13 July 1989, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. L. LOUCAIDES

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 31 May 1989

by E.H. against Switzerland and registered on 6 June 1989

under file No. 15099/89;

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 1965, is a dancing

teacher and assistant cook residing at Muttenz in Switzerland. Before

the Commission she is represented by Mr. M. Neidhardt, a lawyer

practising in Basel.

I.

The applicant's family originates from the village Davutlar.

As the family actively propagates the Kurdish culture, various members

have been arrested. In 1980 the Turkish security authorities

conducted investigations in Davutlar on which occasion the applicant

fell to the ground, thereby injuring her right hand. She was then

detained on remand for a week. The applicant's father subsequently

took his children to their grandparents in Gaziantep, where they went

to school.

In spring 1987 the applicant attempted to pass the entry

examinations for Ankara university. She also participated in a hunger

strike against a Turkish university law whereupon she was detained on

remand for two days and allegedly suffered inhuman treatment. As a

result, she was excluded from the examinations.

In order to avoid further persecution the applicant left

Turkey on 16 April 1987. She entered Switzerland with the help of

third persons on 21 April 1987 whereby she avoided the official

frontier controls.

II.

On 22 April 1987 the applicant applied for asylum. Her

application was dismissed by the Delegate for Refugees (Delegierter

für das Flüchtlingswesen) on 15 March 1988.

The applicant's subsequent appeal was dismissed by the Federal

Department of Justice and Police (Eidgenössisches Justiz- und Polizei-

departement) on 9 August 1988. The decision noted, inter alia, that

the applicant had never been convicted for her cultural activities.

Her arrest in 1980 was too far back in time to be relevant. The

refusal to be granted entry to the University played no part, and the

occurrences concerning her relatives and friends were irrelevant as

long as she herself had not suffered serious disadvantages. The

applicant was then ordered to leave Switzerland by 20 September 1988.

On 10 October 1988 the Federal Department of Justice and

Police dismissed the applicant's request for reopening the asylum

proceedings. It found that the various newspaper articles submitted

by the applicant were too general to corroborate her claims.

On 2 November 1988 the applicant submitted a new request for

reopening the proceedings. The request contained a confirmation of

the Deputy Public Prosecutor of the Ankara National Security Court of

5 October 1988 stating that her brother was wanted by the authorities

as a member of the illegal separatist organisation PKK.

The Federal Department of Justice and Police thereupon

suspended the applicant's expulsion and requested the Swiss Embassy at

Ankara to verify the applicant's submissions. On 11 November 1988 and

31 January 1989 the Embassy replied that the documents submitted by

the applicant were correct though the applicant's brother had meanwhile

been acquitted and released from detention on remand on 23 February

1989. The applicant herself had never been mentioned in these

proceedings; she had left Turkey having failed her university entry

examinations and her family had had no problems with the authorities.

On 12 May 1989 the Federal Department of Justice and Police

dismissed the applicant's request for reopening the proceedings. It

noted the replies of the Swiss Embassy at Ankara, according to which

the applicant was not wanted by the authorities and her family had not

suffered retribution. The Department further noted that the

applicant's brother had been acquitted. Insofar as the applicant

submitted new newspaper articles reporting that her brother had been

re-arrested, the Department found that these articles were not

sufficient to confirm the alleged danger for the applicant.

On 22 May 1989 the applicant was ordered to leave Switzerland

not later than 5 June 1989.

COMPLAINTS

The applicant complains under Article 3 of the Convention of

her imminent expulsion to Turkey. She refers to the various arrests

of her brother and claims that upon her return she will most likely be

arrested and ill-treated.

Under Article 6 para. 1 of the Convention the applicant

complains that the proceedings before the Federal Department of

Justice and Police were unfair. Under Article 13 of the Convention she

complains that she had no effective remedy at her disposal and that

the Federal Department of Justice and Police was not independent.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 31 May 1989 and registered

on 6 June 1989.

On 6 June 1989 the Acting President decided not to apply

Rule 36 of the Commission's Rules of Procedure.

THE LAW

1. The applicant complains under Article 3 (Art. 3) of the

Convention of her imminent expulsion to Turkey. Under Article 6

para. 1 (Art. 6-1) of the Convention she alleges that the proceedings

before the Federal Department of Justice and Police were unfair.

Under Article 13 (Art. 13) of the Convention she claims that she did

not have an effective remedy at her disposal.

The Commission recalls that under Article 26 (Art. 26) of the

Convention it "may only deal with the matter ... within a period of

six months from the date on which the final decision was taken". In

the present case the decision of the Federal Department of Justice and

Police which was given on 9 August 1988 was the final decision

regarding the applicant's original complaints, whereas the application

was submitted on 31 May 1989, that is more than six months after the

date of that decision.

An issue arises in particular whether the subsequent decision of the

Federal Department of Justice and Police of 12 May 1989 suspended the running

of that period. This decision concerned the applicant's request, on the basis

of alleged new information, for the reopening of the previous proceedings.

However, the Commission is not required to decide on this

matter since the application is in any event inadmissible for the

following reasons.

2. The applicant complains that if expelled to Turkey she 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. 10564/83, Dec. 10.12.84,

D.R. 40 p. 262).

In the present case the Commission notes on the one hand that

the main evidence submitted by the applicant concerns the situation of

her brother. On the other hand, according to the information obtained

by the Swiss Embassy in Turkey, the applicant herself has not been

mentioned in connexion with the proceedings concerning her brother,

and her family has not suffered retribution on account of these

proceedings.

The Commission finds therefore that the applicant has failed

to show by means of concrete submissions concerning her own situation

that her treatment in Turkey would render her expulsion contrary to

Article 3 (Art. 3) of the Convention.

In any event the Commission notes that after her 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 her

Convention rights by the Turkish authorities.

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.

3. The applicant further complains under Article 6 para. 1 (Art. 6-1)

of the Convention of unfairness of the 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. 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.

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

of the Convention that she 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,

F. and F. v. Switzerland, Dec. 6.3.87, to be published in D.R. 51).

It follows that the remainder of 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

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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E. H. v. SWITZERLAND

E. H. v. SWITZERLAND