Lexploria

The European Commission of Human Rights sitting in private on 11 March

1986, the following members being present:

MM. C.A. NØRGAARD, President

G. SPERDUTI

F. ERMACORA

G. JÖRUNDSSON

G. TENEKIDES

S. TRECHSEL

B. KIERNAN

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

H. VANDENBERGHE

Mrs G.H. THUNE

Sir Basil HALL

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Art. 25 of the Convention for the Protection of Human

Rights and Fundamental Freedoms (art. 25);

Having regard to the application introduced on 26 November 1985 by

N.O. against Switzerland and registered on 27 November 1986 under file

No. 11866/85;

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 they have been submitted by the applicant may

be summarised as follows.

The applicant, a Turkish citizen born in 1957, is a taxi and lorry

driver whose present place of residence, apparently in Switzerland, is

unknown. Before the Commission the applicant is represented by

Ms. Verena Gessler, a lawyer practising in Pratteln.

Until 1981 the applicant resided in Turkey. During his military

service from 1977 to 1979 he allegedly came into contact with persons

participating in the political organisation Dev Yol. Without formally

belonging to Dev Yol he knew other participants and sympathised with

the organisation whom he helped for instance with car transports. He

terminated these activities out of fear of being arrested on

12 September 1980 when a military coup took place in Turkey. When a

district boss of Dev Yol was arrested in July 1981, the applicant

feared that his own name could become known to the authorities.

Therefore, on 25 December 1981 he left Turkey.

On 22 January 1982 the applicant entered Switzerland and requested

asylum. He then commenced work in Switzerland and settled in well.

He is engaged to a Yugoslav citizen whom he intends to marry. His

fiancée has been living in Switzerland for 16 years and possesses a

residence permit.

While in Switzerland the applicant was taken ill with tuberculosis.

Until September 1986 he will have to submit to quarterly controls

which, as the respective doctors state, should take place in

Switzerland.

On 8 December 1983 the Swiss Federal Police Office rejected the

applicant's request for asylum as he lacked the quality of refugee.

The applicant was thereupon ordered to leave Switzerland.

The applicant's appeal against this decision was rejected by the Swiss

Federal Department of Justice and Police as the last instance on

13 August 1985. The applicant was ordered to leave Switzerland

before 30 September 1985.

In its decision the Department found that he had failed sufficiently

to substantiate his quality as refugee. Attention was drawn in

particular to the fact that he had been detained on remand in Turkey

in 1980 or 1981 in connection with the suicide of a colleague. He had

nevertheless been released after four days. Later, he had not in any

way been molested by the authorities. He had also legally applied for

a passport and been able to leave Turkey. The Department concluded

therefrom that the Turkish authorities had no interest in the

applicant.

In respect of the medical controls the Department found that the

applicant could now be regarded as being healed from tuberculosis. In

any event, he could always apply for entry into Switzerland for the

controls.

COMPLAINTS

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

(art. 3) that, if he is expelled from Switzerland, he will be subject

to inhuman treatment in Turkey. He refers, on the one hand, to a

Swiss newspaper article according to which many Dev Yol participants

were sentenced to prison or death in Turkey. On the other hand, he

mentions the name of an alleged leader of Dev Yol whom he knew but

whose present residence is unknown.

2. Under Art. 12 (art. 12) the applicant appears to allege that

the imminent expulsion renders impossible his forthcoming marriage

with his fiancée. However, he partly admits that he could have

married his fiancée before his request for asylum was rejected.

3. Under Art. 13 (art. 13) he complains that he cannot see which

national authority is responsible for respecting the prohibition of

refoulement.

THE LAW

1. The applicant complains that, if he is expelled from

Switzerland, he will be subject to inhuman treatment in Turkey. He

refers in particular to Swiss newspaper articles according to which

many Dev Yol participants were subjected to such treatment. He also

mentions the name of an alleged leader of Dev Yol whom he knew but

whose present residence is unknown. He relies on Art. 3 of the

Convention (art. 3) which provides:

"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 deportation may in exceptional

circumstances involve a violation of the Convention, for example where

there is a serious fear of treatment contrary to Art. 3 (art. 3) in

the receiving State (cf. Dec. No. 7729/76, 17.12.76, D.R. 7 p. 164).

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

applicant has not supplied further confirmation for his allegations,

either that he was involved in the respective organisation, or that he

would be subject to inhuman treatment on account of such involvement.

On the other hand the Commission observes that on various occasions

the applicant stood in contact with the Turkish authorities who

disclosed no interest in him. Thus, in 1980 or 1981 he was released

from detention on remand in connection with another matter after four

days. Thereafter, he legally applied for a passport and left Turkey.

Furthermore, the Commission also notes that insofar as these points

had already been made by the Swiss authorities, they have not been

disputed by the applicant before the Commission.

The Commission is therefore of the opinion that the applicant has

insufficiently substantiated that his treatment in Turkey would render

his expulsion contrary to Art. 3 of the Convention (art. 3).

This part of the application must therefore be rejected as manifestly

ill-founded within the meaning of Art. 27, para. 2 of the Convention

(art. 27-2).

2. Under Art. 12 of the Convention (art. 12) the applicant

apparently alleges that the expulsion renders impossible his

forthcoming marriage with his fiancée.

The Commission, however, notes that the applicant has not established

that while he resided in Switzerland he was prevented from marrying or

that his right to marry has in any way been restricted.

It follows that this part of the application is also manifestly

ill-founded within the meaning of Art. 27, para. 2 of the Convention

(art. 27-2).

3. The applicant complains under Art. 13 of the Convention

(art. 13) that he cannot see which national authority is responsible

for respecting the prohibition of refoulement. However, the Commission

finds no issue under this Article.

It follows that this part of the application is manifestly ill-founded

within the meaning of Art. 27, para. 2 of the Convention (art. 27-2).

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission President of the Commisison

(H.C. KRÜGER) (C.A. NØRGAARD)

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O. v. SWITZERLAND