O. v. SWITZERLAND
The European Commission of Human Rights sitting in private on 11 March
1986, the following members being present:
MM. C.A. NØRGAARD, President
G. SPERDUTI
F. ERMACORA
G. JÖRUNDSSON
G. TENEKIDES
S. TRECHSEL
B. KIERNAN
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
J. CAMPINOS
H. VANDENBERGHE
Mrs G.H. THUNE
Sir Basil HALL
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Art. 25 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (art. 25);
Having regard to the application introduced on 26 November 1985 by
N.O. against Switzerland and registered on 27 November 1986 under file
No. 11866/85;
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 they have been submitted by the applicant may
be summarised as follows.
The applicant, a Turkish citizen born in 1957, is a taxi and lorry
driver whose present place of residence, apparently in Switzerland, is
unknown. Before the Commission the applicant is represented by
Ms. Verena Gessler, a lawyer practising in Pratteln.
Until 1981 the applicant resided in Turkey. During his military
service from 1977 to 1979 he allegedly came into contact with persons
participating in the political organisation Dev Yol. Without formally
belonging to Dev Yol he knew other participants and sympathised with
the organisation whom he helped for instance with car transports. He
terminated these activities out of fear of being arrested on
12 September 1980 when a military coup took place in Turkey. When a
district boss of Dev Yol was arrested in July 1981, the applicant
feared that his own name could become known to the authorities.
Therefore, on 25 December 1981 he left Turkey.
On 22 January 1982 the applicant entered Switzerland and requested
asylum. He then commenced work in Switzerland and settled in well.
He is engaged to a Yugoslav citizen whom he intends to marry. His
fiancée has been living in Switzerland for 16 years and possesses a
residence permit.
While in Switzerland the applicant was taken ill with tuberculosis.
Until September 1986 he will have to submit to quarterly controls
which, as the respective doctors state, should take place in
Switzerland.
On 8 December 1983 the Swiss Federal Police Office rejected the
applicant's request for asylum as he lacked the quality of refugee.
The applicant was thereupon ordered to leave Switzerland.
The applicant's appeal against this decision was rejected by the Swiss
Federal Department of Justice and Police as the last instance on
13 August 1985. The applicant was ordered to leave Switzerland
before 30 September 1985.
In its decision the Department found that he had failed sufficiently
to substantiate his quality as refugee. Attention was drawn in
particular to the fact that he had been detained on remand in Turkey
in 1980 or 1981 in connection with the suicide of a colleague. He had
nevertheless been released after four days. Later, he had not in any
way been molested by the authorities. He had also legally applied for
a passport and been able to leave Turkey. The Department concluded
therefrom that the Turkish authorities had no interest in the
applicant.
In respect of the medical controls the Department found that the
applicant could now be regarded as being healed from tuberculosis. In
any event, he could always apply for entry into Switzerland for the
controls.
COMPLAINTS
1. The applicant now complains under Art. 3 of the Convention
(art. 3) that, if he is expelled from Switzerland, he will be subject
to inhuman treatment in Turkey. He refers, on the one hand, to a
Swiss newspaper article according to which many Dev Yol participants
were sentenced to prison or death in Turkey. On the other hand, he
mentions the name of an alleged leader of Dev Yol whom he knew but
whose present residence is unknown.
2. Under Art. 12 (art. 12) the applicant appears to allege that
the imminent expulsion renders impossible his forthcoming marriage
with his fiancée. However, he partly admits that he could have
married his fiancée before his request for asylum was rejected.
3. Under Art. 13 (art. 13) he complains that he cannot see which
national authority is responsible for respecting the prohibition of
refoulement.
Considerations
THE LAW
1. The applicant complains that, if he is expelled from
Switzerland, he will be subject to inhuman treatment in Turkey. He
refers in particular to Swiss newspaper articles according to which
many Dev Yol participants were subjected to such treatment. He also
mentions the name of an alleged leader of Dev Yol whom he knew but
whose present residence is unknown. He relies on Art. 3 of the
Convention (art. 3) which provides:
"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 deportation may in exceptional
circumstances involve a violation of the Convention, for example where
there is a serious fear of treatment contrary to Art. 3 (art. 3) in
the receiving State (cf. Dec. No. 7729/76, 17.12.76, D.R. 7 p. 164).
In the present case the Commission notes on the one hand that the
applicant has not supplied further confirmation for his allegations,
either that he was involved in the respective organisation, or that he
would be subject to inhuman treatment on account of such involvement.
On the other hand the Commission observes that on various occasions
the applicant stood in contact with the Turkish authorities who
disclosed no interest in him. Thus, in 1980 or 1981 he was released
from detention on remand in connection with another matter after four
days. Thereafter, he legally applied for a passport and left Turkey.
Furthermore, the Commission also notes that insofar as these points
had already been made by the Swiss authorities, they have not been
disputed by the applicant before the Commission.
The Commission is therefore of the opinion that the applicant has
insufficiently substantiated that his treatment in Turkey would render
his expulsion contrary to Art. 3 of the Convention (art. 3).
This part of the application must therefore be rejected as manifestly
ill-founded within the meaning of Art. 27, para. 2 of the Convention
(art. 27-2).
2. Under Art. 12 of the Convention (art. 12) the applicant
apparently alleges that the expulsion renders impossible his
forthcoming marriage with his fiancée.
The Commission, however, notes that the applicant has not established
that while he resided in Switzerland he was prevented from marrying or
that his right to marry has in any way been restricted.
It follows that this part of the application is also manifestly
ill-founded within the meaning of Art. 27, para. 2 of the Convention
(art. 27-2).
3. The applicant complains under Art. 13 of the Convention
(art. 13) that he cannot see which national authority is responsible
for respecting the prohibition of refoulement. However, the Commission
finds no issue under this Article.
It follows that this part of the application is manifestly ill-founded
within the meaning of Art. 27, para. 2 of the Convention (art. 27-2).
Order
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Commission President of the Commisison
(H.C. KRÜGER) (C.A. NØRGAARD)