CHAMMAS v. SWITZERLAND

THE LAW

1. The applicant complains under Article 3 (Art. 3) of the

Convention of his expulsion to Syria. He cannot reside in any other

European country. Upon his return to Syria he would risk detention and

torture or inhuman treatment. The applicant refers expressly to the

report of Amnesty International of 17 September 1996.

Article 3 (Art. 3) of the Convention states:

"No one shall be subjected to torture or to inhuman or degrading

treatment or punishment."

a) The Government contend that the applicant has not complied with

the requirement under Article 26 (Art. 26) of the Convention as to the

exhaustion of domestic remedies. It transpires from the decision of

the Asylum Appeals Commission of 24 February 1997 that the applicant

had not explained why he could not have obtained knowledge of the

Report of Amnesty International during the regular proceedings. Thus,

the facts which he invoked could no longer be qualified as being new,

and a request for reopening of the proceedings was therefore

inadmissible. The Government point out that insofar as the Asylum

Appeals Commission nevertheless dealt with the letter of Amnesty

International, it did not do so in a sufficiently concrete manner in

respect of his personal situation.

The applicant submits that the Asylum Appeals Commission was too

formalistic when it rejected his request for reopening of the

proceedings. In fact, it transpires from the decision of 24 February

1997 that the Asylum Appeals Commission did not share his views as to

his expulsion to Syria. Thus, the considerations of the Asylum Appeals

Commission constitute an obiter dictum amounting to a decision on the

merits.

Under Article 26 (Art. 26) of the Convention "the Commission may

only deal with the matter after all domestic remedies have been

exhausted, according to the generally recognised rules of international

law".

In the present case, the Swiss Asylum Appeals Commission

dismissed the applicant's appeal on 13 November 1996. Subsequently,

the applicant requested, with reference to the letter of Amnesty

International, the reopening of the proceedings.

According to the Commission's case-law, if in such proceedings

in Switzerland new facts are obtained after the final decision of the

Asylum Appeals Commission, a request for reopening of the proceedings

may be considered an effective remedy (see No. 18079/91, Dec. 4.12.91,

D.R. 72, p. 263). Nevertheless, there is no exhaustion of domestic

remedies where a remedy is not admitted because of a procedural mistake

(see No. 6878/75, Dec. 6.10.76, D.R. 6, p. 79).

It is true that in the present case the applicant's request for

reopening of the proceedings was declared inadmissible by the Asylum

Appeals Commission on 24 February 1997. Thus, the applicant had failed

to explain why he had not been able to submit the letter of Amnesty

International already during the regular proceedings.

However, the Commission notes the applicant's explanations before

the Asylum Appeals Commission according to which he had only obtained

the letter of Amnesty International after the final decision of

13 November 1996. There is furthermore no indication that the

applicant had in fact been in possession of the letter before

13 November 1996 and that he had purposely withheld it during the

regular proceedings before the Asylum Appeals Commission.

In any event, in its decision of 24 February 1997 the Asylum

Appeals Commission, after explaining why the request was inadmissible,

in fact proceeded to discuss, albeit briefly, the merits of the

applicant's request.

The applicant's complaints cannot therefore be rejected under

Article 26 (Art. 26) of the Convention for non-exhaustion of domestic

remedies.

b) The Government further contend that the application is manifestly

ill-founded. Doubts arise as to the credibility of the applicant's

submissions. It is recalled that according to the decision of the

Asylum Appeals Commission of 13 November 1996, the applicant had only

insufficiently demonstrated his affiliation in Syria to the Baath

party. Furthermore, had he really been punished for his support of

that party, he would have been subjected to a more severe sanction than

eight months' imprisonment. It also did not appear credible if he

stated that despite his persecution he suffered no disadvantages from

1985 to 1990 when he lived in Syria, or that he was able to leave Syria

via Damascus airport with all the necessary documents, particularly as

the security services are very strict at that airport.

The Government also point out that in the same year when the

applicant left Syria for Switzerland he was able twice to travel

abroad, once to Jordan and once to Italy. This would hardly have been

possible for a person allegedly persecuted by the authorities.

Moreover, it is recalled that the letter of Amnesty International only

envisaged difficulties upon the return of asylum-seekers who left Syria

unlawfully. Thus, the dangers mentioned therein, if any, would not

apply to the applicant who was able to leave the country lawfully.

Finally, the Government refer to the situation in Sweden, Germany

and the Netherlands. These countries regularly send Syrian asylum-

seekers back to Syria without any difficulties having become apparent.

The applicant contends that his expulsion to Syria would breach

Article 3 (Art. 3) of the Convention. In his case, the Swiss

authorities insufficiently examined the particular circumstances in

Syria. Thus, the applicant knew about the Baath party as much as one

generally knows about a party programme. Personal reasons led him to

join a wing of the Baath party. The fact that he was released after

eight months of imprisonment is not extraordinary. In the following

years the applicant was placed under surveillance, but he was not

persecuted, as the situation had calmed down in the country, and there

was a more relaxed atmosphere. For this reason, he could travel twice

abroad. In 1990, when the situation in Syria deteriorated and his

friend was arrested, he could leave the country as he obtained a

passport with the help of his father and by means of bribery.

The applicant submits that while in Syria he was detained for

eight months, and tortured. In view of the situation there today, he

must expect, upon his return, renewed persecution contrary to Article 3

(Art. 3) of the Convention. Complete proof is not possible. In his

case, there is a concrete, serious and substantial danger of

persecution.

The applicant recalls that the letter of Amnesty International

points out the risks for returning Syrian asylum-seekers, such as the

applicant. These persons are automatically regarded as opponents of

the régime and, therefore, risk torture. The mere fact that they left

the country is regarded as a form of resistance. It may be true that

the sanctions mentioned in the Report of Amnesty International in case

of unlawful departures from Syria do not apply to the applicant who

left Syria with a passport. However, if he has to return to Syria, he

will have to obtain the necessary documents for his return. The Syrian

authorities will thus certainly become aware of him, and he can

therefore no longer enter his home country as a normal citizen.

The applicant contests the Government's submissions according to

which various countries have sent Syrian asylum-seekers back to Syria

without any problems. These submissions contradict the letter of

Amnesty International where reference is made to persons who in the

past years were arrested at Damascus airport upon their return to

Syria. Some of them have completely disappeared. These are serious

circumstances which can also affect the applicant.

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 3 (Art. 3) of the Convention in the country to which the person

is to be expelled (see Eur. Court HR, Chahal v. United Kingdom judgment

of 15 November 1996, paras. 72 ff).

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.

The Commission notes at the outset that the applicant has not

provided any substantiation whatsoever for his claims that in view of

his support of the Baath party he had been tortured and detained on

remand for eight months, and that for this reason he would again risk

treatment contrary to Article 3 (Art. 3) of the Convention upon his

return to Syria. In this context, the Commission further notes that

in their decisions the Swiss authorities expressed doubts as to the

credibility of the applicant's statements.

The Commission has next examined the letter of Amnesty

International of 17 September 1996 which describes the situation of

Syrian asylum-seekers who are returning to Syria. It is stated therein

that the mere fact that these persons have left the country with the

aim of seeking asylum in another country is considered a sign of

opposition against the Syrian Government.

However, this letter then points out that a concrete risk of

arrest and detention arises for asylum-seekers who have left Syria

unlawfully. In the present case, the Commission need not decide

whether the applicant, who allegedly obtained a forged passport to

travel to Switzerland, left Syria unlawfully in 1990. It suffices to

point out that in the same year the applicant was able twice to travel

as a regular tourist to other countries, namely Jordan and Italy.

Insofar as the applicant refers to the concrete cases of ill-

treatment mentioned in the letter of Amnesty International, it is not

stated therein whether these cases concerned persons who had left Syria

unlawfully. The Commission further notes the Government's submissions

according to which Syrian asylum-seekers have been returned from

Sweden, the Netherlands and Germany to Syria without any difficulties.

In this respect the Commission also recalls its decision in the case

of H. v. Sweden where it considered that no real risk of treatment

contrary to Article 3 (Art. 3) of the Convention had been established

in the case of the expulsion of a Syrian asylum-seeker from Sweden to

Syria (see No. 22408/93, Dec. 5.9.94, D.R. 79-A, p. 85).

Finally, the Commission notes the News Release of Amnesty

International of 25 March 1997 according to which there has been a

growing trend of improvements in human rights in Syria over the last

few years.

As a result, the applicant has failed to show that upon his

return to Syria he would face a real risk of being subjected to

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

This part of the application is, therefore, manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2. The applicant also complains of the formalistic manner in which

the Asylum Appeals Commission dealt with his request for reopening of

the proceedings. After his appeal in 1992, the proceedings lasted four

years until the Asylum Appeals Commission gave its decision. The

applicant also complains that he could not properly explain himself

before the Asylum Appeals Commission.

The Commission has examined this complaint under Article 1 of

Protocol No. 7 (P7-1) to the Convention which states in para. 1:

"An alien lawfully resident in the territory of a State

shall not be expelled therefrom except in pursuance of a decision

reached in accordance with law and shall be allowed:

(a) to submit reasons against his expulsion,

(b) to have his case reviewed, and

(c) to be represented for these purposes before the competent

authority or a person or persons designated by that

authority."

However, even assuming that the applicant was "lawfully resident"

in Switzerland within the meaning of this provision, the Commission

finds that the applicant's complaints do not disclose any appearance

of a violation of the rights set out in Article 1 para. 1 of Protocol

No. 7 (P1-1-1). In this respect the application is therefore also

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.