Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12847/87

by S.G.

against Switzerland

The European Commission of Human Rights sitting in private

on 13 July 1990, the following members being present:

MM. J. A. FROWEIN, Acting President

S. TRECHSEL

F. ERMACORA

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

A. V. ALMEIDA RIBEIRO

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 9 April 1987 by

S.G. against Switzerland and registered on 2 April 1987 under file No.

12847/87;

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 Sri Lankan citizen of Tamil origin born in

1964, is a student residing at Berne in Switzerland. Before the

Commission he is represented by Mrs. Ch. Schibig, a lawyer practising

in Berne.

I.

From November 1984 onwards the applicant was a sympathiser of

the People's Liberation Organisation of Tamil Eelam (PLOT), an

organisation directed against the Sri Lankan Government. As such the

applicant was engaged in propaganda for the PLOT.

In December 1984 the applicant was travelling in a bus which

was stopped by Sri Lankan soldiers. The passengers were searched

whereby the applicant was hit. In January 1985 the applicant was

interrogated by the Sri Lankan authorities together with 300 other

persons. After his identity had been controlled he was released on

the same day.

In view of the death of three friends, apparently shot by the

authorities, the applicant decided to flee. He left Sri Lanka on

27 May 1985 and travelled via Moscow and Berlin to Switzerland.

II.

On 7 June 1985 the applicant entered Switzerland. On 10 June

1985 he filed a request for asylum with the Berne Police Inspectorate

(Polizeinspektorat). On 2 June 1986 the Delegate for Refugees (Delegierter

für das Flüchtlingswesen) dismissed the request and ordered the

applicant's expulsion.

The applicant filed an appeal against this decision with the

Federal Department of Justice and Police (Eidgenössisches Justiz- und

Polizeidepartement), claiming that an expulsion to Sri Lanka would be

unreasonable. He submitted in particular that the two arrests and the

death of his friends had created an intolerable psychological pressure

for him.

On 6 October 1986 the Department dismissed the request. It

found inter alia that the authorities, when apprehending the applicant

in December 1984 and January 1985, had released him shortly thereafter,

thus demonstrating that they were not interested in his person. The

Department also saw no other circumstances warranting the conclusion

that he would be persecuted by the authorities. The Department also

ordered the applicant to leave Switzerland by 24 November 1986.

III.

While residing in Switzerland, the applicant engaged in

activities for the Tamil Eelam Information Office. He also participated

in demonstrations against the Sri Lankan Government, for instance on

4 March 1986 against the visit of the Sri Lankan foreign minister to

Switzerland. After this demonstration the applicant's picture appeared

in the Swiss press and on Swiss television.

In August 1986 the applicant's mother, residing in Sri Lanka,

sent the applicant a copy of a Sri Lankan journal, published on

15 April 1986. The journal displayed in particular a photo which had

appeared in a Swiss magazine and which depicted the applicant at the

demonstration.

On 13 November 1986 the applicant applied to the Federal

Department of Justice and Police for the reopening of the

proceedings. He claimed that after participating in the demonstration

against the Sri Lankan foreign minister, he would be subjected to

measures of persecution in Sri Lanka for which reason the Department's

decision of 6 October 1986 (see above, II.) should be cancelled.

On 19 November 1986 the Department dismissed the request as

the applicant had not demonstrated a considerable probability (mit

erheblicher Wahrscheinlichkeit) that he would be subjected to inhuman

treatment upon his return to Sri Lanka.

On 6 April 1987 the applicant filed a new request with

the Federal Department of Justice and Police for the reopening of the

proceedings.

Meanwhile the Swiss authorities sent a delegation to Sri Lanka

to examine the situation in particular with regard to the possibilities

of expelling 30 Sri Lankan citizens to Sri Lanka, one of whom was the

applicant. A member of their delegation also spoke to the applicant's

father.

COMPLAINTS

The applicant complains under Article 3 of the Convention of

his expulsion to Sri Lanka. He would thus be subjected to political

persecution, most probably to a long prison sentence and even

torture. He will most likely be sought for his political activities,

both in Sri Lanka and in Switzerland.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 6 April 1987 and registered on

9 April 1987.

On 13 April 1987 the President decided not to apply Rule 36 of

the Commission's Rules of Procedure.

On 14 April 1987 the Secretary of the Commission informed the

respondent Government of the application in accordance with Rule 41 of

the Commission's Rules of Procedure.

On 4 May 1987 the Government submitted information on the

application. This was commented upon by the applicant in a letter of

11 May 1987.

On 11 May 1987 the Government submitted further information

by telephone.

On 14 May 1987 the Commission decided to adjourn the

examination of the application.

The applicant submitted further correspondence on 10 July 1987,

20 June 1989, and 2 May 1990.

THE LAW

The applicant complains of his expulsion to Sri Lanka where he

will be allegedly subjected to inhuman treatment contrary to Article 3

(Art. 3) of the Convention. The applicant notes that the Swiss authorities

currently do not enforce the expulsion order but claims that his

residence in Switzerland must be regulated.

The Government submit that as a result of the visit of Swiss

officials to Sri Lanka, the applicant's expulsion is no longer

imminent. Any definite decision will be taken on the basis of

up-to-date information obtained on the spot with regard to the

applicant's particular situation. They state that any decision to

expel the applicant will be brought to his attention in such a manner

that he is in a position duly to react.

The Commission recalls 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 instance where there is a serious

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

No. 10564/83, Dec. 10.12.84, D.R. 40 p. 262; mutatis mutandis Eur.Court

H.R., Soering judgment of 7 July 1989, Series A no. 161, pp. 32 et

seq.).

In the present case the applicant submits that upon his

expulsion to Sri Lanka he will be subjected to such treatment.

However, the Commission notes that the Swiss authorities have not

enforced the expulsion order since 1987.

The Commission is moreover satisfied that the assurances of

the respondent Government provide sufficient guarantee that, if the

applicant's expulsion order were to be enforced, he would be granted

sufficient opportunity to challenge the execution.

As a result, there is at present no serious reason to believe

that the applicant will be subjected to treatment prohibited in

Article 3 (Art. 3) of the Convention. In these circumstances, and in

particular in view of the Government's assurances, the Commission

considers that the applicant cannot at the present time claim to be a

victim of the alleged violation within the meaning of Article 25

(Art. 25) of the Convention. It follows that the appliction 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 Acting President of the Commission

(H.C. KRÜGER) (J.A. FROWEIN)

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S.G. v. SWITZERLAND

S.G. v. SWITZERLAND

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