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AS TO THE ADMISSIBILITY OF

Application No. 14514/89

by G.D.

against Switzerland

The European Commission of Human Rights sitting in private

on 17 March 1989, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

E. BUSUTTIL

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

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 3 November 1988

by G.D. against Switzerland and registered on 9 January 1989

under file No. 14514/89;

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 of Kurdish origin born in

Eastern Turkey in 1969, is a labourer who at the time of filing the

application resided at Zunzgen in Switzerland. Before the Commission

he is represented by Messrs S. Laubscher and A. Brunner, lawyers

practising in Reinach.

The applicant went to school in Turkey at Yakakcik near

Istanbul, though he had to stop attending the last class as he was

being persecuted by the Turkish police and fellow pupils. He was

frequently beaten up on the street when no witnesses were around.

Once he was brought to the police station at Yakakcik and interrogated

whereupon he was again beaten up.

In order to avoid such occurrences the applicant sometimes

illegally travelled to Eastern Turkey where he lived with his family.

The applicant claims that he had a certain affinity for the

illegal Kurdish party "Rija Affadi" for which, apparently in Eastern

Turkey, he undertook courier and other transport services. Once he

was surprised by a military patrol who opened fire and injured a

colleague of his. The applicant was so shocked that he fled; he also

lost his speech for one month.

In May or June 1986 the entire population of the village in

which his family was living was deported by military forces.

Apparently he was in this context also beaten up and remanded in

solitary confinement.

On 15 November 1986 the applicant fled with a forged passport

from Turkey via Italy to Switzerland.

On 18 November 1986 the applicant applied to the Aliens'

Police of the Canton Basel-Landschaft for asylum. He claims that when

he was interrogated by the police he was not capable of explaining the

occurrences in Turkey since he was psychologically blocked. The

psychiatrist Dr. B. concluded in an expert opinion that the applicant

was not simulating.

According to the minutes of the interrogation by the police of

21 January 1987 the applicant gave as reasons for leaving Turkey that

he was a Kurd; that his school teacher had sent him out of his

classroom; and that due to his Kurdish origin he was refused

employment.

On 25 March 1987 the Delegate for Refugees rejected the

applicant's request. The applicant's appeal against this decision was

dismissed by the Federal Department of Justice and Police on 5 May

1988. This decision noted in particular that the applicant had raised

his fears of political persecution only in the appeal proceedings,

although already in the initial proceedings he had been able to

express himself clearly. It could be assumed, therefore, that the

applicant was trying with subsequently added reasons to give more

weight to his claims.

The applicant's request for a reopening of the proceedings was

dismissed by the Federal Department of Justice and Police on 20

September 1988. His request for a consideration of his application was

rejected by the Delegate for Refugees on 7 October 1988.

The applicant was to be expelled to Turkey on 15 November

1988.COMPLAINTS

The applicant complains under Article 3 of the Convention that

upon his expulsion to Turkey he will be confronted with severe

political persecution, torture and inhuman treatment. He refers to

the expert opinion of Dr. B. and a statement of 12 May 1988 of the

District President of Kurfali near Istanbul according to which the

applicant is wanted by the security authorities at Turkal near

Istanbul.

Under Article 6 para. 1 of the Convention the applicant claims

that he did not have a fair hearing. In particular, neither the

Delegate for Refugees nor the Department of Justice and Police

personally heard the applicant.

PROCEEDINGS BEFORE THE COMMISSION

The applicant was introduced on 3 November 1988.

On 11 November 1988 the President of the Commission decided

not to apply Rule 36 of the Commission's Rules of Procedure.

The applicant submitted his application form on 29 December

1988, and the application was registered on 9 January 1989. The

applicant made further submissions concerning Article 6 of the

Convention on 8 February 1989.

THE LAW

1. The applicant complains of his expulsion to Turkey where he

will be subjected to inhuman treatment and torture contrary to Article

3 (Art. 3) of the Convention. This provision 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 (cf. Dec. No. 7816/77, 19.5.77, D.R. 9 p. 219). However,

the Commission has also held that 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) in the

receiving State (cf. Dec. No. 10564/83, 10.12.84 D.R. 40 p. 262).

In the present case the Commission considers that the main

evidence submitted by the applicant, namely a statement of an official

according to which the applicant is wanted by the Istanbul security

authorities, does not indicate why the applicant is wanted.

Moreover, it refers to the security authorities of Kurfali near

Istanbul, whereas the applicant claims to have been subjected to

persecution in Eastern Turkey. Finally, the Commission notes that the

applicant left Turkey only on 15 November 1986, i.e. more than five

months after the alleged occurrences of inhuman treatment in Eastern

Turkey in May and June 1986.

The Commission finds therefore that the applicant has failed

to show that the alleged treatment in Turkey would render his

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

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 Turkish authorities.

This part of the applicant 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 under Article 6 para. 1 (Art. 6-1) of

the Convention that he did not have a fair hearing, since he was not personally

heard by the Federal Delegate for Refugees or the 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 applicant's civil rights or obligations or of a criminal charge against him

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.

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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G.D. v. SWITZERLAND

G.D. v. SWITZERLAND

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