AS TO THE ADMISSIBILITY OF
Application No. 39409/98
by B. P.
against Switzerland
The European Commission of Human Rights sitting in private on
23 January 1998, the following members being present:
MM J.-C. GEUS, Acting President
S. TRECHSEL
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
Mrs G.H. THUNE
Mr C.L. ROZAKIS
Mrs J. LIDDY
MM L. LOUCAIDES
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
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 M. de SALVIA, 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 9 October 1997 by
B. P. against Switzerland and registered on 19 January 1998 under file
No. 39409/98;
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, formerly a citizen of Yugoslavia and born in 1961,
is a student residing in Zürich in Switzerland.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
Particular circumstances of the case
Before travelling to Switzerland in 1991, the applicant lived in
a part of Yugoslavia which later became Bosnia-Herzegovina. Upon her
arrival in Switzerland, she was granted short-term residence
permissions (Kurz-Aufenthaltsbewilligungen) in view of the war in
Bosnia-Herzegovina. Such permissions were granted collectively by the
Swiss Government (Bundesrat) to a number of persons in similar
situations.
On 3 April 1996 the Swiss Government decided no longer to grant
such collective residence permissions. The applicant's situation was
then examined by the Aliens' Police (Fremdenpolizei) of the Canton of
Zürich which on 6 March 1997 ordered her to leave Switzerland before
30 April 1997.
On 12 March 1997 the applicant filed a request for a residence
permission which was rejected on 20 March 1997 by the Aliens' Police
of the Canton of Zürich.
The applicant filed an appeal against this decision, whereupon
she was informed on 25 April 1997 that the Aliens' Police would
reconsider its previous decision.
On 30 April 1997 the Aliens' Police of the Canton of Zürich
ordered the applicant to leave Switzerland before 31 May 1997, as she
did not meet the requirements for a residence permit. The decision
stated that an appeal could be filed within 20 days with the Government
(Regierungsrat) of the Canton of Zürich.
On 23 May 1997 the Federal Office for Refugees (Bundesamt für
Flüchtlinge) informed the applicant that she had to organise her
departure. Reference was made in the letter to a voluminous programme
of assistance prepared by the Swiss authorities for persons in the
applicant's situation, and to an address where she could obtain further
information in this respect.
It appears that on 26 May 1997 the applicant filed an appeal with
the Police Directorate (Polizeidirektion) of the Government of the
Canton of Zürich against the decision of 30 April 1997, and that no
decision has so far been given.
Relevant domestic law and practice
According to S. 84 of the Federal Judiciary Act (Organisations-
gesetz), a public law appeal (staatsrechtliche Beschwerde) may be filed
with the Federal Court (Bundesgericht) against all cantonal acts and
decisions. This remedy serves to complain about breaches of
constitutional and Convention rights.
Based on S. 4 of the Swiss Federal Constitution (Bundesverfas-
sung), it is possible to complain about procedural inactivity, or
delays, by a particular judicial or administrative body before the
higher authority, and in last resort before the Federal Court
(Rechtsverweigerungs- bzw. Rechtsverzögerungsbeschwerde).
COMPLAINTS
1. The applicant complains under Article 3 of the Convention of her
prospective return to Bosnia-Herzegovina. She submits that she is
catholic, and that she was forcefully driven out of her home town which
is now controlled by Serb forces. Indeed, a Serb family is now living
in her former flat. Her parents and relatives were severely ill-
treated. On the whole, there is no legal protection in Bosnia-
Herzegovina.
Under Article 1 of Protocol No. 7 the applicant further complains
that her case was not examined upon appeal.
2. The applicant also complains under Article 3 of the Convention
of ill-treatment on the part of the Swiss authorities, and of the
degrading life as a refugee in Switzerland.
THE LAW
1. The applicant complains under Article 3 (Art. 3) of the
Convention of her prospective return to Bosnia-Herzegovina where there
is no legal protection for her. Under Article 1 of Protocol No. 7
(P7-1) the applicant complains that her case was not examined upon
appeal.
Article 3 (Art. 3) of the Convention states:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
Article 1, para. 1 of Protocol No. 7 (P7-1-1) to the Convention
states:
"An alien lawfully resident in the territory of a State shall not
be expelled therefrom except in pursuance of a decision reached
in accordance with law and shall be allowed:
(a) to submit reasons against his expulsion,
(b) to have his case reviewed, and
(c) to be represented for these purposes before the competent
authority or a person or persons designated by that
authority."
However, 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".
In the present case, the applicant has not shown that, after the
Aliens' Police of the Canton of Zürich gave its decision on 30 April
1997, she obtained upon appeal a decision of the Government of the
Canton of Zürich and, in last resort, of the Federal Court on the
complaints she is now raising before the Commission.
It is true that the applicant further complains that, although
she filed an appeal, it was not examined. However, under Swiss law it
is possible in such situations to file a complaint, based on S. 4 of
the Swiss Federal Constitution, about procedural inactivity by a
judicial or administrative body before the higher authority, and in
last resort before the Federal Court. The applicant has not shown that
she filed such a complaint.
The applicant has not, therefore, complied with the requirements
as to the exhaustion of domestic remedies, and this part of the
application must be rejected under Article 27 para. 3 (Art. 27-3) of
the Convention.
The complaints under Article 3 (Art. 3) of the Convention would
in any event also be inadmissible for the following reasons.
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, Reports 1996-V, no. 22, p. 1831, paras. 72 ff).
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. However, it notes that
before the Commission, apart from referring to the fact that her former
flat is now occupied by other persons, the applicant has not provided
any substantiation of her fears concerning ill-treatment upon her
return to Bosnia-Herzegovina.
The Commission further notes that on 23 May 1997 the Federal
Office for Refugees drew the applicant's attention to a voluminous
programme of assistance prepared by the Swiss authorities for persons
in the applicant's situation.
As a result, the applicant has failed to show that upon her
return to Bosnia-Herzegovina she 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 of ill-treatment on the part of the Swiss authorities, and
of her situation as a refugee in Switzerland.
However, the applicant has not shown that she raised this
complaint before the Swiss authorities, and in last resort before the
Federal Court. As a result, she has not complied with the requirements
under Article 26 (Art. 26) of the Convention as to the exhaustion of
domestic remedies.
The remainder of the application must, therefore, also be
rejected under Article 27 para. 3 (Art. 27-3) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M. de SALVIA J.-C. GEUS
Secretary Acting President
to the Commission of the Commission
Full & Egal Universal Law Academy