AS TO THE ADMISSIBILITY OF
Application No. 14912/89
by F.
against Switzerland
The European Commission of Human Rights sitting in private
on 1 October 1990, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ RUIZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
A.V. ALMEIDA RIBEIRO
M.P. PELLONPÄÄ
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 13 April 1989
by F. against Switzerland and registered on 19 April 1989 under
file No. 14912/89;
Having regard to
- the report provided for in Rule 47 of the Rules of Procedure
of the Commission;
- the observations submitted by the respondent Government
on 25 July 1989 and the observations in reply by the applicant
on 27 September 1989;
Having deliberated;
Decides as follows:
THE FACTS
The facts submitted by the parties may be summarised as
follows.
The applicant, a Lebanese citizen born in 1954, is a teacher
and apparently of moslem faith. In 1988 he arrived in Switzerland
where he is currently hiding at an unknown place. Before the
Commission he is represented by Mr. U. Kern of the "Zürcher
Freiplatzaktion für Asylsuchende" and Mr. A. Achermann, a lawyer
practising at Berne in Switzerland.
I.
The applicant stated before the Swiss authorities that he
had worked from 1971 until 1975 in secret in Lebanon for the Arab
socialist workers' party. From 1976 until 1982 he undertook these
activities in public. From 1983 to 1985 he was involved with the
revolutionary workers' party, a Trotzkyite movement. As from 1985
onwards he ceased his political activities, while maintaining contacts
with the Lebanese communist party.
Between January and March 1988 the applicant received various
death threats, such as bullet shots, grenades, broken windows and
anonymous letters.
In 1988 the applicant applied to the Italian Embassy in Beirut
for an entry visa into Italy. This was granted on 10 March 1988 for a
period of three months.
On 27 March 1988 the applicant flew from Beirut to Sofia in
Bulgaria from where, on 28 March 1988, he travelled to Milan in
Italy. On 31 March 1988 he attempted to enter Switzerland but was
refused entry at the frontier.
II.
On 1 April 1988 the applicant entered Switzerland illegally.
On 24 May 1988 the applicant applied for political asylum in
Switzerland. He was questioned as to the reasons for his request by
the Berne Cantonal Police on 13 June 1988.
According to the minutes prepared by the Berne Cantonal Police
on that day the applicant first explained his particulars, inter alia
that he was not liable to military service in Lebanon as his
brother had already done such service, and under Lebanese law it
sufficed if one brother did so. He then referred in some detail to
his political activities until 1985. Thus, he belonged to the marxist
wing of the workers' party, as opposed to the bureaucratic wing which
was in contact with other groups, among them the Amal.
The applicant then explained the various threats he had
received. Thus on 6 February 1988 shots were fired at him at Uzai, a
Beirut suburb, on his way to Wardania where he was teaching. The Uzai
was controlled by the Amal movement and two unkwown men in civilian
clothing had fired the shots. Later, upon his return to Beirut on
29 February 1988, masked men threw a grenade at him. On 5 March 1988
he found the windows of his car riddled by bullet shots.
On 19 August 1988 the Swiss Delegate for Refugees (Delegierter
für das Flüchtlingswesen) dismissed the applicant's request for asylum
and ordered him to leave Switzerland not later than 31 October 1988.
In his decision the Delegate found that the activities of the
applicant in Lebanon, which were first illegal and then legal, never
resulted in a danger to his life. The Lebanese authorities had not
taken any specific and grave measures against him and could not be
made responsible for acts by third persons. The acts of which the
applicant complained were merely criminal acts committed by
individuals. The Delegate concluded that, while the applicant's
security in Lebanon could not at present be ensured to the same extent
as in times of peace, the fact that he was a victim of a general
situation nevertheless did not require the granting of asylum.
The applicant's appeal against this decision was dismissed on
15 December 1988 by the Federal Department for Justice and Police
(Eidgenössisches Justiz- und Polizeidepartement) which also ordered
the applicant to leave Switzerland within a time-limit not under six
weeks.
In its decision the Department found that the applicant had
not presented new submissions which would call in question the
previous decision. Insofar as the applicant claimed that the actions
of the Amal militia had to be qualified as dangers emanating from a
State authority, the Department noted that on 13 June 1988, when
questioned by the Berne Cantonal Police, the applicant had expressly
stated that these threats were those of unknown persons. The
Department also observed that the applicant's legal departure from
Lebanon via the Beirut airport contradicted his claims since the
Beirut airport was completely controlled by the Amal militia.
The applicant's further requests for the reopening of the
proceedings were rejected by the Delegate for Refugees on 7 February
1989 and by the Federal Department of Justice and Police on 28 March
1989.
COMPLAINTS
The applicant complains under Articles 2 and 3 of the
Convention of a threat to his life if he is expelled from Switzerland
to Lebanon. He maintains that he will be persecuted in Lebanon on the
grounds of his religious beliefs and political views. He submits that
the Swiss authorities did not sufficiently consider that the Amal
militia which are persecuting him constitute a quasi-State authority.
The decision refusing his request for asylum incorrectly described and
assessed the facts.
The applicant states that he was able to leave the Beirut
airport on 27 March 1988 by bribing the airport official. As to the
attacks by the Amal militia, he points out that in areas controlled by
Amal only their members can walk around armed. As regards the
incident with the grenade, he explains that he was then driving in a
car. He thereby saw in the mirror that a car with Amal number plates
was following him and that one man in the back of the car threw the
grenade.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 13 April 1989 and registered
on 19 April 1989.
On 20 April 1989 the Acting President decided to indicate to
the Swiss Government, in accordance with Rule 36 of the Commission's
Rules of Procedure, that it was desirable in the interest of the
parties and the proper conduct of the proceedings before the
Commission not to expel the applicant until the Commission had had an
opportunity to examine the application.
Further information was submitted by the Government on
27 April and 8 May 1989 and by the applicant on 20, 25 and 27 April
1989.
On 12 May 1989 the Commission decided to bring the application
to the notice of the respondent Government and invite them pursuant to
Rule 42 para. 2 (b) of the Rules of Procedure to submit observations
on the admissibility and merits of the application. The Commission
also decided not to prolong its indication under Rule 36 of the
Rules of Procedure.
On 14 June 1989 the respondent Government submitted further
information.
The respondent Government's observations on the admissibility
and merits of the application were submitted on 25 July 1989 and the
reply thereto by the applicant on 27 September 1989.
The applicant submitted further observations on the
application on 28 September 1989 and 13 July 1990.
THE LAW
The applicant complains of his expulsion to Lebanon where
he will allegedly be subjected to measures of persecution contrary to
Articles 2 and 3 (Art. 2, 3) of the Convention. Insofar as his
expulsion has not yet been enforced, the applicant contends that the
Government's position on this issue is not sufficiently precise.
The Government submit that the applicant has failed
sufficiently to demonstrate that upon his return to Lebanon he
would be subjected to the measures alleged. The Government further
observe that the expulsion order is currently not being enforced.
They state that the applicant will be notified between four to six
weeks in advance of any decision that it should be enforced.
The Commission recalls 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 instance where there is a serious
fear of treatment contrary to Articles 2 and 3 (Art. 2, 3) of the
Convention (see No. 10564/83, Dec. 10.12.84, D.R. 40 p. 262; mutatis
mutandis Eur. Court H.R., Soering judgment of 7 July 1989, Series A
no. 161, pp. 32 et seq.).
The Commission further recalls that in its previous case-law
it has left open the question whether, from the standpoint of
Article 3 (Art. 3) of the Convention, it may take into account an alleged
danger arising, not only from public authorities, but also from
autonomous groups (see No. 8581/79, Dec. 6.3.80, D.R. 29 p. 48).
In the present case the applicant submits that upon his
expulsion to Lebanon he will be subjected to measures of
persecution contrary to Articles 2 and 3 (Art. 2, 3) of the
Convention. However, the Commission notes that the Swiss authorities
have not enforced the expulsion order since 1989.
The Commission is moreover satisfied that the assurances of
the respondent Government provide sufficient guarantee that, if the
applicant's expulsion order were to be enforced, he would be granted
sufficient opportunity to challenge the execution, if possible before
the Swiss authorities, and in any event before the European Commission
of Human Rights.
As a result, there is at present no serious reason to believe
that the applicant will be subjected to treatment prohibited in Articles
2 and 3 (Art. 2, 3) of the Convention. In these circumstances, and in
particular in view of the Government's assurances, the Commission
considers that the applicant cannot at the present claim to be a
victim of the alleged violation within the meaning of Article 25
(Art. 25) of the Convention. It follows that the application is
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission
unanimously DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
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