K.Y. v. SWITZERLAND
AS TO THE ADMISSIBILITY OF
Application No. 22794/93
by K.Y.
against Switzerland
The European Commission of Human Rights sitting in private on
22 October 1993, the following members being present:
MM. C.A. NØRGAARD, President
A. WEITZEL
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
C.L. ROZAKIS
Mrs. J. LIDDY
MM. J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
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 13 October 1993
by K.Y. against Switzerland and registered on 20 October 1993 under
file No. 22794/93;
Having regard to the report provided for in Rule 47 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 born in 1960, currently resides
at Lutzenberg in Switzerland. Before the Commission he is represented
by Mr. C. Bernhart, a lawyer practising at St. Gallen in Switzerland.
I.
According to the applicant's submissions to the Swiss
authorities, he was an Alevit. He claimed that Alevits in Turkey were
open to discrimination and persecution by the authorities, leading to
deprivation of liberty and assaults on their bodily integrity. Thus,
in 1980 his father was killed. In 1987 his brother disappeared and it
must be feared that he is also dead.
Since 1980 the applicant sympathised with the TKEP (Türkiye
Komünist Emekciler Partisi). For the TKEP he kept and distributed
journals, for which reason he was occasionally arrested. In 1986 he
was again arrested and detained for 59 days in Gaziantep without being
brought before a judge. While questioned by the police he was
regularly tortured. He was released as he did not make any
incriminating statements.
On 1 December 1989 the police searched his house during his
absence and found incriminating journals. He then decided to leave the
country in view of renewed detention and torture.
II.
The applicant left Turkey on 3 January 1990 and arrived in
Switzerland on 8 January 1990. On 17 January 1990 he applied for
asylum. On the same day he was questioned by the Office of the
Delegate for Refugees (Delegierter für das Flüchtlingswesen). He was
again questioned by the cantonal authorities on 19 February 1990, and
by the Federal Office for Refugees (Bundesamt für Flüchtlinge) on 17
December 1992.
On 29 March 1993 the Federal Office for Refugees dismissed the
applicant's request. It found, inter alia, that the applicant had not
sufficiently demonstrated that he had worked for the TKEP. The Federal
Office also noted various contradictions in the applicant's statements
which called in question the dangers he alleged. Thus, on one occasion
the applicant had explained that he had been arrested and detained
seven to eight times between 1980 and 1989; on another occasion he had
stated that he had been arrested for the first time in 1986, and
thereafter arrested between thirty and forty times.
The applicant's appeal was dismissed by the Swiss Appeals
Commission in Matters of Asylum (Schweizerische Asylrekurskommission)
on 13 August 1993. The Appeals Commission found that, in view of the
many contradictions in the applicant's statements, he had not credibly
established that he had worked for the TKEP, or that he had been
arrested and detained by the authorities. He had also contradicted
himself in respect of the date of his father's death: once he had
claimed that his father had died in 1980; another time he claimed he
had worked for his father in 1986, and had been with him in 1989.
There were also contradictions as to the events on 1 December 1989 when
the applicant's house was searched.
III.
Before the Commission the applicant has submitted the photocopy
of a document in Turkish, which includes the copy of a rubber stamp
mark of the District Commander of Yavuzeli. The applicant has
submitted a German translation thereof prepared by a St. Gallen
bookshop and dated 8 October 1993. The translation reads as follows:
"From: The District Commander in Yavuzeli, to: The head of the
village Kuzu Yatagi.
The below mentioned persons participated between 1980 and 1990
on various dates in illegal activities. You are hereby ordered
that of these persons:
- M.G. (there follow particulars as to the parents and the
birthday)
- (the applicant) ...
- S.G. ...
- H.D. ...
- S.G. ...
information should at once be given to our police office.
Otherwise, proceedings will be instituted against you for
disregarding your office. For your information."
COMPLAINTS
The applicant complains under Article 3 of the Convention that
nobody shall be submitted to torture or inhuman or degrading treatment.
The application continues: "The applicant must leave Switzerland before
15 November 1993. He risks expulsion to Turkey, arrest and torture.
A warrant of arrest has been issued against the applicant. Upon his
last stay in prison there is evidence that he was tortured."
Considerations
THE LAW
1. The applicant complains of his imminent expulsion to Turkey where
allegedly he will be subjected to treatment contrary to Article 3
(Art. 3) of the Convention.
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 and well-founded fear of treatment contrary to Articles 2 or
3 (Art. 2, 3) of the Convention in the country to which the person is
to be expelled (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, p. 32 et seq., paras. 81 et seq.).
2. The Commission notes that after the Appeals Commission in Matters
of Asylum dismissed the applicant's appeal on 13 August 1993, the
applicant obtained, on 8 October 1993, the translation of an undated
warrant of arrest. The applicant apparently regards this document as
relevant. However, it appears that the applicant did not submit it to
the Swiss authorities during the asylum proceedings.
The Commission recalls its case-law according to which requests
in Switzerland for the reconsideration of decisions which have already
entered into force constitute an effective remedy within the meaning
of Article 26 (Art. 26) of the Convention if circumstances are invoked
which were unknown at the time of the final decision (see No. 18079/91,
Dec. 10.9.93, unpublished).
In the present case the Commission considers in the light of the
above case-law that the applicant could have been expected to submit
the copy of the warrant of arrest to the Federal Office for Refugees
and request reconsideration of the decision to expel him. However, he
failed to do so.
In this respect, therefore, the applicant has not complied with
the condition as to the exhaustion of domestic remedies. This part of
the application must be rejected under Article 27 para. 3 (Art. 27-3)
of the Convention.
X. v. Switzerland, Dec. 4.12.91, to be published in D.R.; No. 22406/93,
3. In any event, the application would also have to be declared
inadmissible as a whole as being manifestly ill-founded for the
following reasons:
The Commission considers at the outset that the mere possibility
of ill-treatment on account of the unsettled general situation in a
country is in itself insufficient to give rise to a breach of Article
3 (Art. 3) of the Convention (see Eur. Court H.R., Vilvarajah and
others judgment of 30 October 1991, Series A no. 215, p. 37, para.
111).
In the present case, the only evidence submitted by the applicant
to the Commission is the copy of a warrant of arrest. However, this
document is not dated; no reference is made to any offences allegedly
committed by the applicant and there is no order to arrest and detain
the applicant; the only threat was directed at the head of the village.
This document cannot, in the Commission's view, serve to confirm the
applicant's fears.
Furthermore, the applicant has not referred to any other evidence
which he submitted to the domestic authorities in order to corroborate
his claims.
The Commission has therefore had regard to the decisions of the
Swiss authorities, in particular of the Federal Office for Refugees of
29 March 1993, and of the Swiss Appeals Commission in Matters of Asylum
of 13 August 1993. The Commission notes that the authorities carefully
examined the applicant's allegations. The Commission does not find it
unreasonable for the authorities, in view of various contradictions in
the applicant's statements, to consider that he had not credibly
established that he had worked for the political party concerned or
that he had been arrested and detained by the Turkish authorities.
The applicant has failed to show that upon his return to Turkey
he would face a real risk of being subjected to treatment contrary to
Article 3 (Art. 3) of the Convention. The application is therefore
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
Order
For these reasons, the Commission unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)