AS TO THE ADMISSIBILITY OF
Application No. 33721/96
by M. C. C. and others
against Switzerland
The European Commission of Human Rights sitting in private on
5 December 1996, the following members being present:
Mrs. G.H. THUNE, Acting President
Mr. S. TRECHSEL
Mrs. J. LIDDY
MM. E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
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
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 1 November 1996
by M. C. C. and others against Switzerland and registered on 8 November
1996 under file No. 33721/96;
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 application has been introduced by 11 Somali citizens
currently residing in Zürich. The first and second applicants are a
married couple, the other applicants are their children. Before the
Commission they are represented by S. Aloui, a legal adviser residing
in Rüti in Switzerland.
The facts of the case, as submitted by the applicants, may be
summarised as follows.
The applicants left Somalia on 15 August 1994 and arrived in
Switzerland on 11 September 1994 where they requested asylum.
The applicants were questioned by the Swiss authorities on
23 September and 25 October 1994. They stated that they belonged to
the Midgaan Clan and had been living in Mogadiscio. In 1988 their
house had been bombed and a family member had been killed. In view of
the changing power structures in Mogadiscio, they had moved in 1992 to
Kismaayo where they remained until 1994. The applicants claimed that
as members of the Midgaan clan they had no home territory to return to,
and in Mogadiscio the adherents of Ali Mahdi had meanwhile taken over.
While not involved in politics, they experienced discrimination on
account of their particular clan.
On 4 January 1995 the Federal Office for Refugees (Bundesamt für
Flüchtlinge) dismissed the applicants' request for asylum. The Office
found, inter alia, that the applicants had not demonstrated a concrete
persecution other than being the object of verbal injuries
(Beschimpfungen). The Office concluded that the applicants had not
demonstrated that upon their return to Somalia they would be subjected
to inhuman treatment contrary to Article 3 of the Convention. However,
as an expulsion to Somalia was not possible for the time being, the
applicants were permitted provisionally to stay in Switzerland for
twelve months.
The applicants' appeal was dismissed by the Swiss Asylum Appeals
Commission (Schweizerische Asylrekurskommission) on 29 March 1995. The
Appeals Commission found that the applicants had not demonstrated that
in view of their membership of a particular clan they had been subject
to persecution or had otherwise been endangered in a concrete manner.
The applicants filed on 18 July 1996 a request for reopening the
proceedings, claiming that the Appeals Commission had made an incorrect
factual statement about the Midgaan clan. The request was declared
inadmissible by the Appeals Commission on 26 July 1996 as having been
filed out of time.
COMPLAINTS
1. The applicants complain under Article 3 of the Convention that
their request for asylum has been refused and that, if they return to
Somalia, they risk a danger to life and limb. They submit that the
Midgaan clan to which they belong is a persecuted minority in Somalia.
The applicants come from the north of Somalia where the Isshak clan is
now in power. The applicants have also experienced persecution in the
south in Kismaayo until 1994. The situation is worst in Mogadiscio
where the Midgaan clan is being persecuted on account of its
cooperation with the previous Siad Barres régime.
The applicants submit that the danger of expulsion is imminent
as their request for asylum has been dismissed and they only have a
provisional right to stay in Switzerland.
2. The applicants further complain that they were not properly heard
in the proceedings before the Swiss authorities; that certain evidence
was disregarded; and that the various decisions were incorrect.
3. The applicants also raise complaints under Articles 5, 13 and 14
of the Convention.
THE LAW
1. The applicants complain under Article 3 (Art. 3) of the
Convention of their imminent expulsion to Somalia. They also complain
about the unfairness of the proceedings. Further complaints are raised
under Articles 5, 13 and 14 (Art. 5, 13 , 14) of the Convention.
The Commission notes that the Swiss Asylum Appeals Commission
gave its final decision on 29 March 1995, and that on 26 July 1996 it
declared inadmissible the applicants' request for the reopening of the
proceedings. An issue arises therefore as to whether the applicants
have complied with the six months time-limit under Article 26 (Art. 26)
of the Convention. The Commission need not resolve this issue since
the application is in any event inadmissible for the following reasons.
2. The applicants complain of their imminent expulsion to Somalia,
claiming that they risk being persecuted on account of their membership
of a particular clan. They rely on Article 3 (Art. 3) of the
Convention which 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 2 or Article 3 (Art. 2, 3) of the Convention in the country to
which the person is to be expelled (see Eur. Court HR, Chahal v. the
United Kingdom judgment of 15 November 1996, 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 applicants. It notes that before
the Commission the applicants have not provided any concrete
substantiation that they would suffer persecution if they returned to
Somalia.
The Commission has further had regard to the decisions of the
Federal Office for Refugees of 4 January 1995 and the Swiss Asylum
Appeals Commission of 29 March 1995. The Commission notes that the
authorities carefully examined the applicants' allegations though they
concluded that they had not established a danger of persecution upon
their return to Somalia.
As a result, the applicants have failed to show that upon their
return to Somalia they would face a real risk of being subjected to
treatment contrary to Article 3 (Art. 3) of the Convention.
This part of the application is therefore manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
3. The applicants further complain that they were not properly heard
in the proceedings before the Swiss authorities; that certain evidence
was disregarded; and that the various decisions were incorrect.
The Commission has examined this complaint under Article 1 of
Protocol No. 7 (P7-1) to the Convention which states in para. 1:
"1. 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, even assuming that the applicants were "lawfully
resident" in Switzerland within the meaning of this provision, the
Commission finds that the applicants' complaints do not disclose any
appearance of a violation of the rights set out in Article 1 para. 1
of Protocol No. 7 (P7-1). In this respect the application is
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
3. Insofar as the applicants raise complaints under Articles 5, 13
and 14 (Art. 5, 13, 14) of the Convention, the Commission finds no
separate issue under these provisions. It follows that the remainder
of the application is also 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.
H.C. KRÜGER G.H. THUNE
Secretary Acting President
to the Commission of the Commission
Full & Egal Universal Law Academy