AS TO THE ADMISSIBILITY OF
Application No. 35150/97
by Hamid BELARBI
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 24 January 1997
by Hamid Belarbi against Switzerland and registered on 4 March 1997
under file No. 35150/97;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, an Algerian citizen born in 1969, is a civil
servant currently residing in Kloten in Switzerland. Before the
Commission he is represented by Mr S. Aloui, a legal adviser practising
in Zürich.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant worked in Algeria in a civil registry. In January
1995 a member of the Islamic movement FIS asked him to prepare
pamphlets on a typewriter. The applicant only agreed to do so as he
was threatened with death, preparing the work on a free day. In view
of further threats, he undertook a number of other such assignments.
He also prepared for non-resident persons residence declarations signed
by his director. The latter apparently became suspicious and informed
the police. The applicant hid with his cousin when he learned that the
police had searched for him at his house and had arrested his brother
instead; the police had also threatened with action towards his brother
if he, the applicant, did not report to the police within 24 hours.
Previously, the applicant had twice briefly been arrested in
January and in March 1991 on account of having participated in
demonstrations of the FIS.
The applicant left Algeria without any documents. He travelled
through France to Switzerland where he arrived on 6 June 1995 and
requested asylum.
The request was dismissed on 2 November 1995 by the Federal
Office for Refugees (Bundesamt für Flüchtlinge) which found that the
applicant's version of events lacked credibility. In the Federal
Office's view, it appeared unlikely that members of an organisation
pursued by the authorities would appear at a local administration on
a number of occasions and ask a civil servant to type pamphlets,
particularly as an organisation such as the FIS had sufficient means
to obtain its own means of reproduction.
The Federal Office also ordered the applicant to leave
Switzerland by 15 January 1996.
The applicant's appeal was dismissed on 19 June 1996 by the Swiss
Asylum Appeals Commission (Schweizerische Asylrekurskommission), the
decision being served on 21 June 1996.
In its decision, the Asylum Appeals Commission noted the
applicant's submissions according to which the FIS had in fact ceased
to ask him to type the pamphlets at issue as it had acquired its own
typewriters; the applicant was thus no longer needed and did not,
therefore, have to fear threats from the FIS. The Asylum Appeals
Commission further noted that persons who were not active members of
the FIS, on the one hand, or who did not belong to particular
professions or had a particular status, on the other, generally
suffered no retributions in Algeria. The Asylum Appeals Commission
also saw no indications that criminal proceedings were pending against
the applicant in Algeria, and it noted that he had a family there from
whom he could find support. The applicant's request for reopening
the proceedings was declared inadmissible on 5 September 1996 as the
applicant had failed to pay the advance court costs.
COMPLAINTS
The applicant complains under Article 3 of the Convention that
upon his return to Algeria he risks being prosecuted as he formerly
sympathised with the FIS. In support of his complaint he submits the
copy of a friend's letter of 14 December 1995 according to which the
Algerian police has searched the applicant's premises and taken away
most of his papers.
The applicant also complains of the unfairness of the asylum
proceedings in Switzerland, and of the conditions which he suffered in
an internment centre in Switzerland.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 24 January 1997.
On 29 January 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.
THE LAW
1. The applicant complains that, if he is expelled to Algeria, he
will suffer treatment contrary to Article 3 (Art. 3) of the Convention.
The applicant also complains of the unfairness of the proceedings.
However, the decision of the Swiss Asylum Appeals Commission of
19 June 1996, which was served on the applicant on 21 June 1996, was
the final decision regarding the subject of these particular
complaints, whereas the application was submitted to the Commission on
24 January 1997, that is, more than six months after the date of this
decision. Furthermore, an examination of the case does not disclose
the existence of any special circumstances which might have interrupted
or suspended the running of that period.
It follows that this part of the application has been introduced
out of time and must be rejected under Article 27 para. 3 (Art. 27-3)
of the Convention.
In any event, the applicant's complaint under Article 3 (Art. 3)
of the Convention would also be inadmissible for the following reasons.
Article 3 (Art. 3) of the Convention states:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
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. United Kingdom judgment
of 15 November 1996, paras. 72 ff, to be published in Reports 1996).
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 HR, Vilvarajah and others v. 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 that the
applicant has submitted a friend's letter of 14 December 1995 according
to which the Algerian police had searched the applicant's premises.
In the Commission's opinion, however, this document is of an
entirely private nature and cannot suffice to substantiate the
applicant's fears that, upon his return, he would risk treatment
contrary to Article 3 (Art. 3) of the Convention.
The Commission has further had regard to the decisions of the
Federal Office for Refugees of 2 November 1995 and of the Swiss Asylum
Appeals Commission of 19 June 1996. The Commission notes that the
authorities carefully examined the applicant's allegations, though they
concluded that the applicant's submissions lacked credibility, and that
neither the general situation in Algeria nor the applicant's
circumstances showed a concrete risk militating against his return to
his home country.
As a result, the applicant has failed to show that upon his
return to Algeria 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 would therefore also be manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant also complains under Article 3 (Art. 3) of the
Convention about the conditions of his detention in Switzerland.
However, the applicant failed to raise this complaint before the Swiss
authorities. He has not, therefore, exhausted the remedies available
to him under Swiss law. It follows that the applicant has not complied
with the condition as to the exhaustion of domestic remedies and the
remainder of the application must be rejected under Article 27 para.
3 (Art. 27-3) of the Convention.
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
Full & Egal Universal Law Academy