OSAWE v. SWITZERLAND
AS TO THE ADMISSIBILITY OF
Application No. 32164/96
by Sydney OSAWE
against Switzerland
The European Commission of Human Rights sitting in private on
24 October 1996, the following members being present:
Mrs. G.H. THUNE, Acting President
Mr. S. TRECHSEL
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
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 24 January 1996
by Sydney Osawe against Switzerland and registered on 8 July 1996 under
file No. 32164/96;
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 applicant, a Nigerian citizen born in 1969, is a student
currently residing in Chavornay in Switzerland. Before the Commission
he is represented by Mr C. Brügger, a lawyer practising at Tavannes.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant left Nigeria in 1995. Via Benin and Italy he
reached Switzerland where he requested asylum.
The applicant was then questioned as to his request by various
Swiss authorities. He claimed in particular that in Nigeria he had
been a member of the Social Democratic Party (SDP) and presided at a
Student Association at the Nigeria Technology College. When the
President of the SDP was arrested, he had organised student meetings
at secret places. Subsequently, together with other students he had
demonstrated against the government. He had then been arrested and
interrogated. A military court had convicted him in 1994 and sentenced
him to eight years' imprisonment whereupon he fled the country.
The applicant's request for asylum was dismissed by the Federal
Office of Refugees (Bundesamt für Flüchtlinge) on 16 August 1995. He
was ordered to leave Switzerland by 15 October 1995.
In its decision the Office noted in particular various
inconsistencies in the applicant's submissions before the different
authorities. It also found that the applicant's submissions
contradicted its own general experience. The Office pointed out, for
instance, that, while the applicant claimed that after his conviction
by a military court he had remained in a police cell in Nigeria, the
Office recalled that a person convicted in such circumstances in
Nigeria was brought to a military prison.
The applicant's further appeal was dismissed on 26 September 1995
by the Swiss Asylum Appeals Commission (Schweizerische Asylrekurs-
kommission). In respect of Article 3 of the Convention the Commission
found that neither the general situation in Nigeria nor the applicant's
circumstances showed a concrete risk militating against his return to
his home country.
COMPLAINTS
The applicant complains under Article 3 of the Convention that
upon his return to Nigeria he will be submitted to inhuman treatment
and torture. In support of his claims the applicant has submitted
three letters, two of Nigerian lawyers' offices and one of a Nigerian
trade company, all of which claim that the applicant is wanted by the
authorities. Two letters are undated. One letter of 24 March 1996
also states he has been "sentenced to death by (a) firing squad".
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 24 January 1996.
On 1 February 1996, the President, and on 5 July 1996, the
Commission decided not to apply Rule 36 of the Commission's Rules of
The application was registered on 8 July 1996.
Considerations
THE LAW
The applicant complains under Article 3 (Art. 3) of the
Convention that upon his return to Nigeria he will be submitted to
inhuman treatment and torture.
Article 3 (Art. 3) of the Convention states:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
According to the Convention organs' case-law, the right of an
alien to reside in a particular country is not as such guaranteed by
the Convention. Nevertheless, 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
Article 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, and mutatis mutandis Eur. Court HR, Soering v. United Kingdom
judgment of 7 July 1989, Series A no. 161, p. 32 et seq., paras. 81 et
seq.).
However, 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 HR, Vilvarajah and others v. United Kingdom judgment of 30
October 1991, Series A no 215, p. 37, para. 111).
The Commission has examined the circumstances of the present case
as they have been submitted by the applicant. It notes that the
applicant has submitted three letters, two of Nigerian lawyers' offices
and one of a Nigerian trade company all of which claim that the
applicant is wanted by the authorities. One letter also states that
he has been "sentenced to death by (a) firing squad".
In the Commission's opinion, however, these documents, two of
which are undated, are of an entirely private nature and have been
written as references supporting the applicant's claims. They cannot
suffice to substantiate the applicant's fears that, upon his return to
Nigeria, he would risk treatment contrary to Article 3 (Art. 3) of the
Convention.
The Commission has further had regard to the decisions of the
Federal Office for Refugees of 16 August 1995 and of the Swiss Asylum
Appeals Commission of 26 September 1995. The Commission notes that the
authorities carefully examined the applicant's allegations, though they
concluded that the applicant's submissions were contradictory, and that
neither the general situation in Nigeria nor the applicant's
circumstances showed a concrete risk militating against his return to
his home country.
Thus, the applicant has failed to show that upon his return to
Nigeria 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.
H.C. KRÜGER G.H. THUNE
Secretary Acting President
to the Commission of the Commission