S.V. v. SWITZERLAND
AS TO THE ADMISSIBILITY OF
Application No. 27406/95
by S. V.
against Switzerland
The European Commission of Human Rights (Second Chamber) sitting
in private on 6 September 1995, the following members being present:
MM. H. DANELIUS, President
S. TRECHSEL
Mrs. G.H. THUNE
MM. G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
Ms. M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 22 March 1995 by
S. V. against Switzerland and registered on 24 May 1995 under file
No. 27406/95;
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 facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant, a citizen of former Yugoslavia born in 1975, is
a student residing at Gettnau in Switzerland. Before the Commission
he is represented by his father.
Before travelling to Switzerland the applicant lived in the
Kosovo province of former Yugoslavia. According to his subsequent
submissions before the Swiss authorities, he participated in political
activities against Serbian rule, for instance in a demonstration in
1991. In 1994 the Serbian police had searched for him in view of his
military service, but also on account of the activities of his father
as a police officer.
In May 1994 he travelled via Albania to Switzerland where he
requested asylum.
On 22 July 1994 the Federal Office for Refugees (Bundesamt für
Flüchtlinge) dismissed the applicant's request as his submissions were
contradictory and improbable. The Office noted for instance that
although the applicant claimed to be wanted by the authorities in his
home town, he had frequently returned home, and he had even postponed
his departure to Switzerland for some months in order to await the
conclusion of his cousin's studies. The Office found it improbable
that the police had looked for his father in 1994 for activities which
had taken place in 1991.
The applicant's appeal was dismissed by the Swiss Asylum Appeals
Commission (Schweizerische Asylrekurskommission) on 15 November 1994.
After dealing with various procedural complaints - for instance, that
the applicant's father had not been present when the Swiss authorities
had spoken with the applicant - the Appeals Commission considered that
the applicant had not sufficiently made out a concrete risk of inhuman
treatment upon his return to former Yugoslavia, and that his Albanian
origin could not in itself suffice to prevent his return. The Appeals
Commission also saw no reason to depart from the considerations of the
Federal Office for Refugees. It noted for instance the contradiction
that in the domestic proceedings he had first stated that he had only
participated in a demonstration against the Serbs in 1991; only later
had he claimed that he belonged to the political forces aiming at the
independence of Kosovo.
The applicant was ordered to leave Switzerland by 31 May 1995.
COMPLAINTS
The applicant complains under Article 3 of the Convention that
upon his return to former Yugoslavia he will be submitted to torture
and imprisonment without a fair trial. In this respect he submits that
he belongs to a population group which is being persecuted by the
Serbs.
The applicant submits that at home his father was a police
captain. Eventually, 250 police officers were suspended from service,
and many fled abroad. Hundreds of officers have meanwhile been
imprisoned. According to recent news, even relatives of police
officers are subject to torture. In support of his submissions the
applicant presents copies of newspaper articles and refers to the
statements of other police officers who have fled to Switzerland.
Under Articles 6 and 8 of the Convention the applicant complains
of the unfairness of the asylum proceedings, in particular that the
applicant's father had not been present when the applicant was
questioned by the Swiss authorities.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 22 March 1995 and registered
on 24 May 1995.
On 24 May 1995 the Commission (Second Chamber) decided not to
apply Rule 36 of the Commission's Rules of Procedure.
Considerations
THE LAW
The applicant complains under Article 3 (Art. 3) of the
Convention that upon his return to former Yugoslavia he will be
submitted to torture and imprisonment without a fair trial. In this
respect he submits that he belongs to a population group which is being
persecuted by the Serbs. He also submits that the authorities are
searching for his father who was a police officer, and that many other
police officers have been imprisoned.
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 H.R., Soering 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 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. It notes that in the
proceedings before the Commission the applicant refers mainly to the
persecution of police officers in former Yugoslavia, among them his
father. However, the applicant has not provided any evidence which
would confirm these allegations.
The Commission has further had regard to the decisions of the
Federal Office for Refugees of 22 July 1994 and of the Swiss Asylum
Appeals Commission of 15 November 1994. The Commission notes that the
authorities carefully examined the applicant's allegations, though they
concluded that the applicant's submissions were contradictory and
improbable, and that he had not credibly established a danger of
persecution upon his return to former Yugoslavia.
Thus, the applicant has failed to show that upon his return to
former Yugoslavia 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.
Insofar as the applicant complains under Article 6 (Art. 6) of
the Convention about unfairness of the asylum proceedings, the
Commission recalls that the decision whether an alien should be allowed
to stay in a country or be expelled does not involve the determination
either of the alien's civil rights or obligations, or of 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 part
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.
Insofar as the applicant complains under Article 8 (Art. 8) of
the Convention that his father was not present when the applicant was
questioned by the Swiss authorities, the Commission finds no separate
issue under this provision. The remainder of the application is
therefore also 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.
Secretary to the Second Chamber President of the Second Chamber
(M.-T. SCHOEPFER) (H. DANELIUS)