G.D. v. SWITZERLAND
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:
Facts
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.
Considerations
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.
Order
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)