AS TO THE ADMISSIBILITY OF
Application No. 16217/90
by C.T.
against Switzerland
The European Commission of Human Rights sitting in private
on 16 March 1990, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
J. CAMPINOS
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
Mr. F. MARTINEZ
Mr. L. LOUCAIDES
Mr. J. RAYMOND, Deputy 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
14 February 1990 by C.T. against Switzerland and registered
on 26 February 1990 under file No. 16217/90;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the applicant, may be
summarised as follows:
The applicant, a Turkish citizen born in 1957, resides at
Rümlang in Switzerland. Before the Commission he is represented by
Mr. K. Sintzel, a lawyer practising at Zürich.
Since 1979 the applicant has been a sympathiser of the marxist-
leninist TKP/ML Party. As such he put up posters for the party and
distributed leaflets in front of schools and factories. In 1979 he
was detained during eleven days following a dispute between trade
union members and employers.
In October 1987 the applicant was arrested and detained at the
Yüregir/Adana police station. Two days later he was able to flee
through the toilet window. As to the circumstances of this arrest,
the Swiss authorities have pointed out certain contradictions in the
applicant's statements. According to one statement he had been
arrested during an identity control, whereas on another occasion he
had stated that his arrest occurred while he was hanging up posters
together with two friends.
In February 1988 he was again arrested, though by bribing an
official he was able to go free. According to one statement made
before the Swiss authorities he had been released after three days,
but on another occasion he had stated that the release took place
already after three to four hours.
In April 1988 he met with seven colleagues in order to discuss
events on 1 May. Police appeared, though the applicant was able to
flee with two colleagues. The latter were arrested four months later.
After fleeing, the applicant lived in Adana and Western and
Southern Turkey and worked illegally on building sites. At this stage
a lawyer told him that a warrant of arrest had been issued against him
since May 1988 on the grounds of his political activities for the
TKP/ML Party. The lawyer also told the applicant that every ten days
the police visited his family to inquire about his whereabouts.
On 23 August 1989 the applicant left Turkey via Istanbul
airport.
The applicant entered Switzerland on 24 August 1989. On
25 August 1989 he filed a request for asylum with the Swiss
authorities. The applicant was questioned by the authorities as to
his request on 25 August 1989 at Chiasso in Switzerland and on
29 September 1989 by the Zurich authorities.
On 1 November 1989 the Delegate for Refugees (Delegierter für
das Flüchtlingswesen) dismissed the applicant's request for asylum and
ordered him to leave Switzerland within five days after the decision
had obtained legal force.
In the decision the Delegate for Refugees first considered
that there existed doubts as to the applicant's alleged political
engagements, in particular, as he had given incorrect descriptions of
various aspects of the TKP and TKP/ML Party.
The Delegate further found various inconsistencies in the
applicant's submissions, for instance as to his arrests in 1987 and
1988. The Delegate also noted that, if the Turkish authorities had
intended to arrest the applicant, they could have done so until April
1988 until which date the applicant still lived with his family.
Thereafter, despite the alleged danger of arrest the applicant still
spent 16 months in Turkey, even working on building sites.
The Delegate also considered that the applicant had himself
applied for a passport with the Turkish authorities without being
arrested. If, as the applicant alleged, the passport was obtained by
means of bribery, it would not have been made out in his own name.
Finally, the Delegate noted that the applicant had left Turkey via
Istanbul airport. If the applicant was wanted by the Turkish
authorities, even if he had bribed an official, he could have been
arrested at one of the several airport controls.
The applicant filed an appeal (Beschwerde) against this
decision in which he submitted a warrant of arrest issued by the
Turkish authorities against him. This appeal was communicated to the
Delegate for Refugees who in his observations qualified the warrant of
arrest as a forged document. The applicant replied thereto inter alia
that the applicant's lawyer had received the original warrant of
arrest directly from a Court at Adana in Turkey. Moreover, the
document was clearly valid, although a signature of the Court
Secretary was missing.
On 26 January 1990 the appeal was dismissed by the Federal
Department of Justice and Police (Eidgenössisches Justiz- und
Polizeidepartement) which upheld the considerations of the Delegate
for Refugees. With regard to the warrant of arrest submitted by the
applicant, the Department concluded that the document was forged. The
Department noted inter alia that the applicant had handed in an
original document which normally went to the authorities rather than
to the person to be arrested. Moreover, such a document would imply
that criminal proceedings had been instituted against the applicant
which he himself did not allege. Furthermore, the document was
incomplete in that a signature was missing.
COMPLAINTS
1. The applicant now complains under Article 3 of the Convention
of his imminent explusion to Turkey. He claims that he is wanted in
Turkey as he belonged to the marxist-leninist TKP/ML party. Upon his
return to Turkey he would thus be arrested. Experience moreover showed
that he would then be subjected to torture and inhuman treatment
contrary to Article 3 of the Convention.
2. The applicant further complains, apparently under Article 6 of
the Convention, that the proceedings before the Swiss authorities were
unfair in that he was not sufficiently heard. He complains in
particular that the Federal Department of Justice and Police, in its
decision of 26 January 1990, qualified the warrant of arrest as a
forged document without giving him the opportunity to present further
evidence.
PROCEEDINGS BEFORE THE COMMISSION
The applicant was introduced on 14 February 1990 and
registered on 26 February 1990.
On 20 February 1990 the President decided not to apply Rule 36
of the Commission's Rules of Procedure.
THE LAW
1. The applicant complains that if he is expelled to Turkey he
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 risk of treatment contrary to Article 3 (Art. 3) of the
Convention in the receiving State (see No. 12102/86, Dec. 9.5.86,
D.R. 47 p. 286).
In the present case the applicant has referred before the
Commission mainly to general experience in order to substantiate his
allegation that upon his return to Turkey he will be subjected to
treatment contrary to Article 3 (Art. 3) of the Convention.
Insofar as the applicant may be understood as referring to the
submissions he made before the Swiss authorities, the Commission notes
that the latter found various inconsistencies in the applicant's
statements.
In particular, the Swiss authorities considered that the
applicant had been able to live with his family after being released
from his arrest in February 1988 until April 1988, and that
thereafter, although a warrant of arrest had allegedly been issued
against him, he still would have spent 16 months in Turkey,
occasionally working on building sites. They also noted the
applicant's statement that he had been able to leave Turkey via
Istanbul airport where he had to pass several controls of the Turkish
authorities. The Swiss authorities further considered that the
warrant of arrest submitted by the applicant in the appeal proceedings
was forged inter alia as one signature was missing.
As a result, the Commission considers that the applicant's
submissions raise certain doubts as to their accuracy.
The Commission cannot find the circumstances to be such as to
warrant the conclusion that the applicant's expulsion would be
contrary to Article 3 (Art. 3) of the Convention on account of a risk of
ill-treatment in Turkey.
In any event the Commission notes that after his 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 his Convention rights by the Turkey authorities.
This part of the application must therefore be rejected as
being manifestly ill-founded within the meaning of Article 27
(Art. 27) of the Convention.
2. The applicant further complains, apparently under Article 6
para. 1 (Art. 6-1) of the Convention, of unfairness of the asylum
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. (Art. 6-1) 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.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Deputy Secretary to the Commission President of the Commission
(J. RAYMOND) (C.A. NØRGAARD)
Full & Egal Universal Law Academy