S.N. v. SWITZERLAND
AS TO THE ADMISSIBILITY OF
Application No. 22406/93
by S.N.
against Switzerland
The European Commission of Human Rights sitting in private on
10 September 1993, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
A. WEITZEL
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
MM. F. MARTINEZ
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 28 July 1993 by
S.N. against Switzerland and registered on 3 August 1993 under file No.
22406/93;
Having regard to:
- the report provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
31 August 1993 and the observations in reply submitted by the
applicant on 7 September 1993;
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 Pakistani citizen born in 1963, is a student
currently residing in Lausanne, Switzerland. Before the Commission he
is represented by Mr Clément of the Association "La Maison", which
provides social and legal assistance in Lausanne.
I.
In 1988 the applicant was enrolled as a student at Lahore
University in Pakistan where he was a member of the National Student
Federation. This Federation supported the Pakistani People Party of
Benazir Bhutto, and opposed the military regime of Zia-ul-Haq.
On 9 March 1988 a student demonstration was organised in Lahore
to protest against martial law. In the course thereof the police
intervened with tear gas and arrested several students.
On 10 March 1988 a demonstration was organised demanding the
release of these students. The demonstrators were attacked by a group
of supporters of the pro-Government group, Jamal E-Islami. Z.K., a
member of the Jamal E-Islami, was injured and later died.
In the night of 10 to 11 March 1988 the applicant was arrested
and detained on remand on suspicion of manslaughter. He claims that
during his detention he was ill-treated by the police. Two other
persons were also arrested and charges brought against them.
A professor visited the applicant in detention and offered to
help him leave Pakistan in order to avoid the trial. The applicant
subsequently requested his release on bail.
The hearing was fixed for 28 March 1988. However, the public
prosecutor failed duly to submit an indictment, and the hearing was
adjourned to 8 July 1988. On this date the Lahore Court decided to
release the applicant as from 9 July 1988. The applicant was released
on "interim bail" and in view of forthcoming university examinations.
The bail of 50.000 Rupies was provided by the university professor.
The trial was again fixed for 26 July 1988.
After his liberation, the professor proposed that the applicant
leave the country. Between 10 and 20 July 1988 the applicant went into
hiding in Lahore with relatives.
On 20 July 1988 the applicant left Pakistan by air, using his own
passport with an Italian visa arranged by his professor. The visa was
issued by the Italian Embassy at Islamabad and was dated 28 March 1988.
The applicant travelled over Italy to Switzerland, where on 9
September 1988 he requested asylum.
II.
The applicant was questioned by the Swiss authorities as to his
request for asylum on 12 September and 15 November 1988. On 30
November 1988 the applicant underwent a medical examination.
On 14 May 1992 the Federal Office for Refugees (Office Fédéral
des réfugiés) dismissed the applicant's request for asylum. In its
decision the Office noted, in particular, certain discrepancies in the
applicant's explanations.
Thus, it was noted that, although claiming to have been detained
after 10 March 1988, the applicant had obtained a visa from the Italian
Embassy on 28 March 1988, and requested a prolongation on 26 June 1988.
Moreover, when originally questioned by the Swiss authorities, the
applicant had stated that he came to Switzerland due to difficulties
with the police in view of his membership of the National Student
Federation; subsequently, he informed the Swiss authorities that he had
been ill-treated during detention, and that proceedings were pending
against him on the grounds of manslaughter. The decision also noted
that the medical examination had only revealed two small scars on the
applicant's knees, whereas he had claimed to have wounds on his body.
The Federal Office for Refugees regarded it as incredible that
in view of the charges brought against the applicant he would have been
released from detention in order to prepare his university
examinations; or that, having been provisionally released on bail he
would be able to leave Pakistan with a passport.
The decision concluded that there were no indications under
Article 3 of the Convention militating against the applicant's
expulsion, and that the expulsion could therefore be enforced.
This decision was served on 18 May 1992 on the applicant's
representative. The decision stated that the applicant could file an
appeal within 30 days of receipt of the decision with the Swiss Appeals
Commission in Matters of Asylum (Commission suisse de recours en
matière d'asile).
The applicant's representative did not however transmit the
decision to the applicant. As the latter did not appeal against it,
the decision entered into force on 19 June 1992. The applicant
apparently learned thereof later on. He then employed a new legal
representative who on 19 August 1992 obtained a copy of the decision.
The applicant thereupon requested reinstitution into the proceedings.
This request was filed on 21 August 1992.
According to Section 24 of the Federal Act on Administrative
Procedure, the request for reinstitution into the proceedings must be
filed within ten days and must be accompanied by the act in respect of
which there exists an impediment.
On 9 September 1992 the Swiss Appeals Commission in Matters of
Asylum declared the request inadmissible. The decision states: "the
appeal statement was not filed within the time-limit of ten days after
the end of the alleged impediment, that is ... until 31 August 1992"
("Toutefois, l'acte de recours n'a pas été déposé dans le délai de dix
jours dès la fin de l'empêchement allégué, soit ... jusqu'au 31 août
1992").
On 17 September 1992 the applicant's new legal representative
filed a request for reconsideration of the decision of 14 May 1992 of
the Federal Office for Refugees. In support of his request he
submitted a report of Amnesty International.
On 23 September 1992 the Federal Office for Refugees declared
this request inadmissible. The Office found that the applicant had not
mentioned any new circumstances which had not already been considered
during the asylum proceedings. It noted in particular that the
original decision had already considered the general situation in
Pakistan at the time concerned. The Office further noted that the
report of Amnesty International referred to detention of political
opponents between 1990 and 1992 in the Sindh province, which could not
serve to support the applicant's claims.
The decision of the Federal Office further stated that the
decision of 14 May 1992 had entered into force and could be executed.
Against this decision the applicant filed an appeal with the
Swiss Appeals Commission in Matters of Asylum.
On 16 October 1992 the applicant submitted to the Appeals
Commission an extract of the Pakistani Penal Code, as well as a copy
of a letter of 20 September 1992 meanwhile received by fax from a
Pakistani lawyer (see below at III.).
On 28 October 1992 the Appeals Commission requested the
applicant's lawyer to produce a translation of the extract of the
Pakistani Penal Code. This the applicant submitted on 13 November
1992.
The appeal was dismissed by the Swiss Appeals Commission in
Matters of Asylum on 29 January 1993.
The Appeals Commission noted that it could reconsider a previous
decision if there was a change of circumstances since the first
decision, or if the applicant submitted new elements of proof which had
not been previously known. However, the Appeals Commission found that
it could not comment on the extract of the Pakistani Penal Code as the
applicant had not submitted a translation thereof.
Insofar as the applicant referred to the letter of the Pakistani
lawyer, the Appeals Commission considered that this document related
to facts which the applicant knew, or should have known, well before
he filed his request for reconsideration of the original decision.
III.
After his arrival in Switzerland, the applicant was in contact
with his lawyer in Pakistan.
Thus, he apparently telephoned his lawyer in Pakistan on 19
September 1992. It transpired from the telephone call that, if the
applicant returned to Pakistan, he would be in serious danger. In
particular, as he was the subject of criminal proceedings, upon leaving
the aeroplane in Pakistan he risked arrest and detention in view of the
punishment which had been inflicted on him in his absence.
A letter dated 20 September 1992 from the lawyer refers to the
"telephonic conversation with me". After recapitulating the facts, the
letter states that "(the applicant) was actually involved in the above
murder case due to political rivalry. At present he is declared as
fugitive from law. His case has been sealed by the court. His trial
would start as and when he comes back in Pakistan ..."
On 16 June 1993 the applicant received a fax from his lawyer,
containing a "judegment" of "the Court of District and Session Judge
Lahore" which is dated 12 October 1992. The document concerns the
applicant and two other co-accused and numbers two pages. It noted
that, according to the prosecution, "the death of Z.K. was caused
because of the fire made by Irfan Ahmed. Due to instigation of (the
applicant), Abbas Khan Inspector who investigated the whole case
supported the version of the prosecution" (sic). The document
continues in its original, uncorrected version:
"After going through the evidence led by the prosecution and the
defence version, I hold Irfan Ahmed, Saeed Alam Niazi and
Khurshid Bukhari guilty of murder of Z.K. and in consequence of
my finding Irfan Ahmed is sentenced to death in the offence
undersection ... <illegible> ... and RS.2000/- as fine in 16 MPO
in default of payment of fine. He will further under go 6 months
simple impresorment, as for the absconding accused (the
applicant) and Khurshid Bukhari are concerned. They are
absconding and fugitive from law their case is separated. They
shall face the trial as and when they are arrested."
COMPLAINTS
1. The applicant complains of his imminent expulsion to Pakistan
where he alleges that he will be subjected to inhuman and degrading
treatment and probably torture, contrary to Article 3 of the
Convention. The applicant submits that the Swiss authorities, when
deciding on his expulsion, did not properly consider whether he would
be subjected to such a risk.
2. The applicant complains under Article 13 of the Convention that
he did not have an effective remedy at his disposal in respect of his
complaints under the Convention. The applicant recalls that it was
through the fault of his legal representative that he missed the time-
limit for filing an appeal against the decision of 14 May 1992.
According to the principle of good faith, the applicant cannot be
accused of negligence. The applicant also complains of the incorrect
conclusions in the various decisions.
3. Under Article 1, para. 1, of Protocol No. 7 to the Convention,
the applicant complains that the Swiss authorities did not enable the
applicant to put forward grounds militating against his expulsion and
did not examine his case.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 28 July 1993 and registered on
3 August 1993.
On the same day the President of the Commission decided to
communicate the case to the respondent Government and to invite the
parties to submit their written observations on admissibility and
merits of the application under Article 3 of the Convention. He also
indicated to the Government, pursuant to Rule 36 of the Commission's
Rules of Procedure, that a stay in the applicant's expulsion to
Pakistan would be desirable until the Commission had had an opportunity
to examine the case.
The Government's observations were received by letter dated 31
August 1993. The applicant's observations in reply were dated 7
September 1993.
Considerations
THE LAW
1. The applicant complains of his imminent expulsion to Pakistan,
where he alleges that he will be subjected to inhuman and degrading
treatment and probably torture, contrary to Article 3 (Art. 3) of the
Convention.
a) 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 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., para. 81 et seq.).
b) 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".
The applicant submits that in his case the final decision was
that of the Appeals Commission of 29 January 1993, against which no
further appeal was possible. In his view, the arguments which he put
forward in those proceedings were essentially the same as those which
he could have raised in the light of the Lahore District Court judgment
of 12 October 1992.
The Government contend that the applicant has not exhausted
domestic remedies within the meaning of Article 26 (Art. 26) of the
Convention. Thus, the final decision which the applicant obtained in
respect of his request for asylum was that of the Federal Office for
Refugees on 14 May 1992. The applicant failed to file an appeal
against this decision. The decision of 29 January 1993 concerned a
decision of the Federal Office for Refugees which declared inadmissible
the applicant's request for reconsideration of a previous decision.
Moreover, the applicant could, in the light of the judgment of 12
October 1992 of the Lahore District Court, have requested
reconsideration of the authorities' decision to expel him from
Switzerland.
The Commission notes that the applicant's request for asylum was
dismissed by the Federal Office for Refugees on 14 May 1992, which also
decided that the decision could be enforced. The applicant could have
filed an appeal against this decision to the Appeals Commission for
Asylum Matters. However, he did not do so. It appears that, through
negligence on the part of his representative, he failed to comply with
the time-limit of 30 days for filing such an appeal. The applicant
also failed to comply with the requirements for filing a request for
reinstitution within the time-limit.
The applicant has not, therefore, exhausted domestic remedies
within the meaning of Article 26 (Art. 26) of the Convention.
The applicant submits, however, that he subsequently filed a
request for reconsideration of the decision of 14 May 1992 which was
dismissed by the Swiss Appeals Commission on 29 January 1993.
The Commission recalls its case-law concerning requests in
Switzerland for the reconsideration of decisions which have already
entered into force. Such a request is considered 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. Thus, in a similar case against Switzerland, after the Swiss
authorities had decided to expel the applicant, he alleged new
political developments militating against his expulsion. The
Commission found that under Swiss law the applicant could have been
expected to ask for reconsideration of the decision to expel him, which
in the circumstances constituted an effective remedy within the meaning
of Article 26 (Art. 26) of the Convention (see No. 18079/91, X. v.
Switzerland, Dec. 4.12.91, to be published in D.R.).
In the present case the Commission notes that the decision of the
Appeals Commission of 29 January 1993 concerned a request for
reconsideration. However, in these proceedings, the applicant
submitted an extract of the Pakistani Penal Code, a document of Amnesty
International, and the copy of a letter received by fax from a
Pakistani lawyer. In the Commission's opinion, it cannot be said that
these documents referred to circumstances unknown at the time when the
final decision was taken.
This request for reconsideration does not therefore constitute
an effective remedy within the meaning of Article 26 (Art. 26) of the
Convention.
It is true that before the Commission, the applicant appears to
rely on the document of the Lahore District Court of 12 October 1992
as a means of evidence militating against his expulsion. This document
which the applicant only obtained on 16 June 1993 was never examined
by the Swiss authorities.
Even assuming that this document concerned new circumstances
unknown at the time when the applicant's request for asylum was
dismissed, the Commission considers in the light of the above case-law
that the applicant could have been expected to submit it to the Federal
Office for Refugees and again request reconsideration of the decision
to expel him. However, he failed to do so.
In this respect, therefore, the applicant has also not complied
with the condition as to the exhaustion of domestic remedies
This part of the application must therefore be rejected under
Article 27 para. 3 (Art. 27-3) of the Convention.
c) In any event, this part of the application would also have to be
declared inadmissible as being manifestly ill-founded for the following
reasons.
The applicant submits in support of his allegations a report by
Amnesty International stating that ill-treatment is widespread in
Pakistan. The applicant further recalls that under Swiss law a person
applying for asylum must upon the first interrogation only summarily
provide the reasons for leaving the home country; the detailed reasons
must only be given at the subsequent interrogation. The applicant
further submits that according to general experience it was perfectly
possible for the applicant to leave Pakistan by plane although he had
been released on bail.
The Government point out various discrepancies in the applicant's
submissions before the Swiss authorities. The Government further
contend that the judgment of the Lahore District Court is false as it
contains various formal mistakes. For instance, the pleadings of the
applicant's lawyer are not mentioned. Moreover, while stating that
three persons are guilty, it goes on to state that two persons have not
yet been tried. In this respect, the Government point out that the
Swiss Appeals Commission has recently examined 37 judgments of
Pakistani courts submitted by Pakistani citizens; 36 of them were
false.
The Commission recalls 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).
The Commission has examined the circumstances of the present case
as they have been submitted by the applicant, who claims that upon his
return to Pakistan he will be subjected to treatment contrary to
Article 3 (Art. 3) of the Convention.
Insofar as it can be determined, the applicant appears to refer
to the demonstration in which he participated, which led to the death
of a person. As a result, criminal proceedings were instituted against
three persons, among them the applicant. He further appears to refer
to the ill-treatment which he suffered while remanded in custody, and
to the fact that, according to the judgment of the Lahore District
Court of 12 October 1992, a co-accused has meanwhile been sentenced to
death.
The Commission has first examined the judgment of the Lahore
District Court of 12 October 1992.
The Commission observes that the mere fact that, upon return in
his home country, a person risks punishment for a criminal act, cannot
in itself raise an issue under Article 3 (Art. 3) of the Convention.
However, according to the Lahore judgment, the death penalty was
pronounced against a co-accused. The applicant apparently fears that
he will undergo the same punishment. Thus, an issue could arise under
Article 1 of Protocol No. 6 (P6-1) to the Convention within the meaning
of the Commission's case-law.
In this respect, the Commission recalls that it has left open
whether Article 1 of Protocol No. 6 (P6-1) to the Convention engages
the responsibility of a State, such as Switzerland which has ratified
this Protocol, where, upon deportation, the person concerned faces a
real risk of being subjected to the death penalty in the receiving
State (see No. 15216/89, Dec. 16.1.91, to be published in D.R.).
Nevertheless, the Commission notes an inconsistency in the
document concerned. On the one hand, it holds the applicant "guilty
of murder of Z.K.", thus implying that the applicant has already been
convicted. On the other hand, the judgment states that the applicant
and another co-accused "shall face the trial as and when they are
arrested", thus implying that the outcome of the proceedings is still
uncertain.
The Lahore District Court judgment does not therefore
sufficiently confirm the applicant's fears that upon his return to
Pakistan he will undergo treatment falling within the ambit of Article
3 (Art. 3) of the Convention or Article 1 of Protocol No. 6 (P6-1) to
the Convention.
The Commission furthermore observes that the applicant has not
provided any other official documents confirming his arrest and
detention between 10 May and 10 July 1988.
Finally, the Commission notes certain inconsistencies in the
applicant's submissions before the domestic authorities. First, the
applicant did not at the outset inform the domestic authorities of his
principal reason for leaving Pakistan. Thus, upon his first
interrogation by the Swiss authorities, he merely referred to his
difficulties with the police. Only upon a later interrogation did he
refer to his detention and ill-treatment and that criminal proceedings
had been instituted against him. Second, although allegedly charged
with the serious offence of the instigation to manslaughter, the
applicant claims that he was released on bail in order to prepare his
university examination. Finally, the Commission notes that, although
allegedly released on "interim bail", the applicant was able to pass
through the control at the airport and leave the country.
The Commission finds therefore that the applicant has failed to
show that, upon his return to Pakistan, he would face a real risk of
being subjected to treatment falling within the ambit of Article 3
(Art. 3) of the Convention or Article 1 of Protocol No. 6 (P6-1) to 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 complains under Article 13 (Art. 13) of the
Convention that he did not have an effective remedy at his disposal in
respect of his complaints under the Convention. Under Article 1, para.
1, of Protocol No. 7 (P7-1-1) to the Convention, the applicant also
complains that the Swiss authorities did not enable him to put forward
grounds militating against his expulsion, and did not examine his case.
The Commission notes that the applicant had the possibility of
filing an appeal against the decision of the Federal Office for
Refugees on 14 May 1992. This would have enabled him to put forward
grounds militating against his expulsion. However, on account of the
negligence of his representative, the applicant failed to file the
appeal.
The Commission finds, therefore, that the applicant had adequate
remedies at his disposal for the purposes of Article 13 (Art. 13) 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.
3. Finally, the applicant may be understood as complaining under
Article 6 (Art. 6) of the Convention of the unfairness of the
proceedings before the Swiss authorities.
However, according to the Commission's case-law, a decision as
to whether an alien should be allowed to stay in a country or be
expelled does not involve either the determination of the alien's civil
rights or obligations, or a criminal charge, within the meaning of
Article 6 para. 1 (Art. 6-1) of the Convention (see No. 8118/77, Dec.
19.3.81, D.R. 25 p. 105).
This aspect of the application is therefore incompatible ratione
materiae with the provisions of the Convention, pursuant to Article 27
para. 2 (Art. 27-2) of the Convention.
Order
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. Krüger) (C.A. Nørgaard)