KANAGARATNAM v. SWITZERLAND
AS TO THE ADMISSIBILITY OF
Application No. 35149/97
by Vinothiny KANAGARATNAM
against Switzerland
The European Commission of Human Rights sitting in private on
7 April 1997, the following members being present:
Mrs. G.H. THUNE, Acting President
Mr. S. TRECHSEL
Mrs. J. LIDDY
MM. G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
C.L. ROZAKIS
L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
I. BÉKÉS
J. MUCHA
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
Mrs. M. HION
MM. R. NICOLINI
A. ARABADJIEV
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 28 January 1997
by Vinothiny Kanagaratnam against Switzerland and registered on 4 March
1997 under file No. 35149/97;
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 Sri Lankan citizen born on 25 November 1979, is
a pupil residing at an unspecified address in Switzerland. Before the
Commission she is represented by Mr H.P. Roth, a legal adviser
practising in Baar in Switzerland.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
Until 1994 the applicant, who is of Tamil origin, lived in the
northern province Elalai West in Sri Lanka. The house of her family
was destroyed, and she had to live in a refugee camp, later with an
uncle. Eventually, she lost all contacts with her family. The
applicant was requested to join an underground organisation, whereupon
out of fear she left Sri Lanka on 14 April 1994 and travelled to
Switzerland.
In Switzerland, where the applicant lived with her four siblings,
she filed a request for asylum, referring to the civil war in Sri Lanka
and claiming persecution by the underground organisation. Her request
was dismissed on 27 July 1994 by the Federal Office for Refugees
(Bundesamt für Flüchtlinge), inter alia, as the applicant had the
possibility, upon return to Sri Lanka, to live in other parts of the
country. The decision noted that, as a minor, the applicant was
entitled to file a request for asylum, but also had to bear the
consequences of a negative decision. The applicant was ordered to
leave Switzerland by 30 September 1994.
On 21 October 1996 she filed a request for reconsideration of the
proceedings (Wiedererwägungsgesuch), claiming that the Federal Office
had not sufficiently considered, inter alia, that she was a minor. The
applicant claimed that she did not know where her parents were, and
that it could not be expected of a girl of seventeen to be set out
(ausgesetzt) in Colombo without a social network.
The request was dismissed by the Federal Office on 1 November
1996, the latter finding that it had in its previous decision
sufficiently considered that the applicant was a minor. The Federal
Office further noted that the applicant should report to the competent
authorities which would organise her return trip to Sri Lanka.
The applicant's appeal against this decision was dismissed by the
Federal Asylum Appeals Commission (Schweizerische Asylrekurskommission)
on 25 November 1996. The Commission found that the Federal Office had
sufficiently considered the applicant's minor age in that it had asked
the Swiss Embassy in Colombo to take the necessary measures to take
care of the applicant.
On 20 December 1996 the applicant filed a request for reopening
the proceedings (Revision). In her statement she referred to an
assurance given by the Federal Office for Refugees, namely that
<Translation>
"upon her arrival in Colombo she would be fetched by a
collaborator of the Swiss Embassy and brought to the Red Cross
Home. Moreover, the Embassy had made an agreement with the
director of a local convent school (Klosterschule) according to
which (the applicant) would be accepted by this convent school".
However, the applicant claimed that this assurance did not
sufficiently consider the well-being of a child.
The applicant's request was dismissed by the Asylum Appeals
Commission on 9 January 1997.
COMPLAINTS
The applicant complains that she does not know where her family
is in Sri Lanka. If she returns to Colombo, she will in view of her
age most likely be subjected to prostitution and other sexual
encroachments (Übergriffe) and thus to degrading treatment contrary to
Article 3 of the Convention and also Section 22 of the United Nations
Convention on the Rights of the Child.
The applicant submits that she did not file an appeal against the
decision of 27 July 1994 as she did not understand its relevance (da
sie dessen Bedeutung nicht verstand).
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 28 January 1997.
On 4 February 1997 the Acting President decided not to apply
Rule 36 of the Commission's Rules of Procedure.
The application was registered on 4 March 1997.
Considerations
THE LAW
The applicant complains under Article 3 (Art. 3) of the
Convention that upon her return to Sri Lanka she will in view of her
age most likely be subjected to prostitution and thus to degrading
treatment contrary to Article 3 (Art. 3) of the Convention.
Article 3 (Art. 3) of the Convention states:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
The Commission need not examine whether the applicant has
complied with the requirements under Article 26 (Art. 26) of the
Convention as to the exhaustion of domestic remedies, as the
application is in any event inadmissible for the following reasons.
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. the United Kingdom
judgment of 15 November 1996, paras. 72ff, to be published in Reports
1996). In this regard, the situation of minors requires further
attention (see mutatits mutandis Eur. Court HR, Nsona v. the
Netherlands judgment of 28 November 1996, para. 103, to be published
in Reports 1996).
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. the 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, on the one hand, that the applicant has not provided
any substantiation as to the alleged circumstances awaiting her as a
minor upon her return to Sri Lanka.
On the other hand, the Commission notes that the applicant is
already seventeen and will be of age on 25 November 1997. Moreover,
the authorities are willing to organise her return trip to Sri Lanka
and also to provide the necessary care upon her arrival. Thus, the
applicant herself confirmed in her statement of 20 December 1996 that,
upon her arrival in Colombo, she would be fetched by a collaborator of
the Swiss Embassy and brought to a Red Cross Home. Furthermore, an
agreement had been concluded according to which a local convent school
would accept the applicant.
As a result, the applicant has failed to show that upon her
return to Sri Lanka she 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