E. H. v. SWITZERLAND
AS TO THE ADMISSIBILITY OF
Application No. 15099/89
by E.H.
against Switzerland
The European Commission of Human Rights sitting in private
on 13 July 1989, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. L. LOUCAIDES
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 31 May 1989
by E.H. against Switzerland and registered on 6 June 1989
under file No. 15099/89;
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 submitted by the applicant, may be
summarised as follows.
The applicant, a Turkish citizen born in 1965, is a dancing
teacher and assistant cook residing at Muttenz in Switzerland. Before
the Commission she is represented by Mr. M. Neidhardt, a lawyer
practising in Basel.
I.
The applicant's family originates from the village Davutlar.
As the family actively propagates the Kurdish culture, various members
have been arrested. In 1980 the Turkish security authorities
conducted investigations in Davutlar on which occasion the applicant
fell to the ground, thereby injuring her right hand. She was then
detained on remand for a week. The applicant's father subsequently
took his children to their grandparents in Gaziantep, where they went
to school.
In spring 1987 the applicant attempted to pass the entry
examinations for Ankara university. She also participated in a hunger
strike against a Turkish university law whereupon she was detained on
remand for two days and allegedly suffered inhuman treatment. As a
result, she was excluded from the examinations.
In order to avoid further persecution the applicant left
Turkey on 16 April 1987. She entered Switzerland with the help of
third persons on 21 April 1987 whereby she avoided the official
frontier controls.
II.
On 22 April 1987 the applicant applied for asylum. Her
application was dismissed by the Delegate for Refugees (Delegierter
für das Flüchtlingswesen) on 15 March 1988.
The applicant's subsequent appeal was dismissed by the Federal
Department of Justice and Police (Eidgenössisches Justiz- und Polizei-
departement) on 9 August 1988. The decision noted, inter alia, that
the applicant had never been convicted for her cultural activities.
Her arrest in 1980 was too far back in time to be relevant. The
refusal to be granted entry to the University played no part, and the
occurrences concerning her relatives and friends were irrelevant as
long as she herself had not suffered serious disadvantages. The
applicant was then ordered to leave Switzerland by 20 September 1988.
On 10 October 1988 the Federal Department of Justice and
Police dismissed the applicant's request for reopening the asylum
proceedings. It found that the various newspaper articles submitted
by the applicant were too general to corroborate her claims.
On 2 November 1988 the applicant submitted a new request for
reopening the proceedings. The request contained a confirmation of
the Deputy Public Prosecutor of the Ankara National Security Court of
5 October 1988 stating that her brother was wanted by the authorities
as a member of the illegal separatist organisation PKK.
The Federal Department of Justice and Police thereupon
suspended the applicant's expulsion and requested the Swiss Embassy at
Ankara to verify the applicant's submissions. On 11 November 1988 and
31 January 1989 the Embassy replied that the documents submitted by
the applicant were correct though the applicant's brother had meanwhile
been acquitted and released from detention on remand on 23 February
1989. The applicant herself had never been mentioned in these
proceedings; she had left Turkey having failed her university entry
examinations and her family had had no problems with the authorities.
On 12 May 1989 the Federal Department of Justice and Police
dismissed the applicant's request for reopening the proceedings. It
noted the replies of the Swiss Embassy at Ankara, according to which
the applicant was not wanted by the authorities and her family had not
suffered retribution. The Department further noted that the
applicant's brother had been acquitted. Insofar as the applicant
submitted new newspaper articles reporting that her brother had been
re-arrested, the Department found that these articles were not
sufficient to confirm the alleged danger for the applicant.
On 22 May 1989 the applicant was ordered to leave Switzerland
not later than 5 June 1989.
COMPLAINTS
The applicant complains under Article 3 of the Convention of
her imminent expulsion to Turkey. She refers to the various arrests
of her brother and claims that upon her return she will most likely be
arrested and ill-treated.
Under Article 6 para. 1 of the Convention the applicant
complains that the proceedings before the Federal Department of
Justice and Police were unfair. Under Article 13 of the Convention she
complains that she had no effective remedy at her disposal and that
the Federal Department of Justice and Police was not independent.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 31 May 1989 and registered
on 6 June 1989.
On 6 June 1989 the Acting President decided not to apply
Rule 36 of the Commission's Rules of Procedure.
Considerations
THE LAW
1. The applicant complains under Article 3 (Art. 3) of the
Convention of her imminent expulsion to Turkey. Under Article 6
para. 1 (Art. 6-1) of the Convention she alleges that the proceedings
before the Federal Department of Justice and Police were unfair.
Under Article 13 (Art. 13) of the Convention she claims that she did
not have an effective remedy at her disposal.
The Commission recalls that under Article 26 (Art. 26) of the
Convention it "may only deal with the matter ... within a period of
six months from the date on which the final decision was taken". In
the present case the decision of the Federal Department of Justice and
Police which was given on 9 August 1988 was the final decision
regarding the applicant's original complaints, whereas the application
was submitted on 31 May 1989, that is more than six months after the
date of that decision.
An issue arises in particular whether the subsequent decision of the
Federal Department of Justice and Police of 12 May 1989 suspended the running
of that period. This decision concerned the applicant's request, on the basis
of alleged new information, for the reopening of the previous proceedings.
However, the Commission is not required to decide on this
matter since the application is in any event inadmissible for the
following reasons.
2. The applicant complains that if expelled to Turkey she will be
subjected to inhuman treatment contrary to Article 3 (Art. 3) of the
Convention, which states:
"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. However, expulsion may in exceptional circumstances
involve a violation of the Convention, for example where there is a
serious fear of treatment contrary to Article 3 (Art. 3) of the
Convention in the receiving State (see No. 10564/83, Dec. 10.12.84,
D.R. 40 p. 262).
In the present case the Commission notes on the one hand that
the main evidence submitted by the applicant concerns the situation of
her brother. On the other hand, according to the information obtained
by the Swiss Embassy in Turkey, the applicant herself has not been
mentioned in connexion with the proceedings concerning her brother,
and her family has not suffered retribution on account of these
The Commission finds therefore that the applicant has failed
to show by means of concrete submissions concerning her own situation
that her treatment in Turkey would render her expulsion contrary to
Article 3 (Art. 3) of the Convention.
In any event the Commission notes that after her return to
Turkey the applicant can bring an application before the Commission under
Article 25 (Art. 25) of the Convention in respect of any violation of her
Convention rights by the Turkish authorities.
This part of the application must therefore be rejected as being
manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2)
of the Convention.
proceedings.
3. The applicant further complains under Article 6 para. 1 (Art. 6-1)
of the Convention of unfairness of the proceedings in particular before the
Federal Department of Justice and Police.
However, the Commission recalls its case-law according to
which 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 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).
It follows that this part of the application is incompatible
ratione materiae with the provisions of the Convention within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
4. Insofar as the applicant complains under Article 13 (Art. 13)
of the Convention that she did not have an effective remedy, the
Commission recalls its case-law according to which the domestic appeal
introduced by the applicant satisfies the requirements of Article 13
(Art. 13) in that it warrants sufficiently independent proceedings
before the Federal Department of Justice and Police (see No. 12573/86,
It follows that the remainder of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of
the Convention.
Order
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)