AS TO THE ADMISSIBILITY OF
Application No. 36774/97
by M. K. and L. K.-K.
against Switzerland
The European Commission of Human Rights (Second Chamber) sitting
in private on 10 September 1997, the following members being present:
Mrs. G.H. THUNE, President
MM. S. TRECHSEL
J.-C. GEUS
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
A. ARABADJIEV
Ms. M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 25 June 1997 by
M. K. and L. K.-K. against Switzerland and registered on 3 July 1997
under file No. 36774/97;
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 first applicant is an Angolan citizen born in 1957, the
second applicant, his wife, is a citizen of the Democratic Republic of
Congo (Zaire) born in 1964. Both applicants live in Uetikon a.S. in
Switzerland. Before the Commission they are represented by Mr M.
Kellenberger, an adviser in matters of European law practising in
Zürich.
The facts of the case, as submitted by the applicants, may be
summarised as follows.
The first applicant left Angola and arrived in Switzerland on
21 June 1988 where he filed a request for asylum, claiming that he had
been a member of UNITA in Angola. As such, he had provided information
for the organisation. As a result, he had been arrested by the Angolan
authorities. He was subsequently released on condition that he report
weekly to the police. However, he fled the country.
The second applicant left Zaire (presently the Democratic
Republic of Congo) and arrived in Switzerland on 7 May 1990 where she
filed a request for asylum. She claimed that she had participated in
a movement criticising the then President Mobutu. After one particular
demonstration she had been informed that her house was surrounded by
soldiers. As a result, she fled the country.
After hearing the applicants, the Federal Office for Refugees
(Bundesamt für Flüchtlinge) refused the first applicant's request for
asylum on 9 February 1990, and the second applicant's request on
30 April 1990.
In 1991 the applicants married. They have two daughters born in
1992 and 1996.
The applicants filed appeals against the decisions of the Federal
Office for Refugees with the Swiss Asylum Appeals Commission
(Schweizerische Asylrekurskommission) in which they complained of the
allegedly incorrect decisions of the Federal Office for Refugees. The
Asylum Appeals Commission dismissed the appeals in two separate
decisions on 2 June 1997.
In the decision concerning the first applicant, the Asylum
Appeals Commission noted various discrepancies in the applicant's
submissions, inter alia, that the document provided by the applicant
which served to justify his release from detention had been falsified.
The Asylum Appeals Commission saw no risk, upon the first applicant's
return to Angola, of inhuman treatment contrary to Article 3 of the
Convention.
In the decision concerning the second applicant the Asylum
Appeals Commission also saw no risk, upon the second applicant's return
to the Democratic Republic of Congo, of inhuman treatment contrary to
Article 3 of the Convention. The Commission further noted that there
was no longer a situation of civil war in Angola and that the second
applicant could be expected to follow the first applicant to his home
country.
The applicants have been ordered to leave Switzerland by
15 September 1997.
COMPLAINTS
1. The applicants complain under Article 3 of the Convention of
their expulsion from Switzerland. They submit that they have
integrated into the community of Uetikon a.S., where they married in
1991 and where their children were born in 1992 and 1996. The older
daughter speaks Swiss German, visits the local kindergarten and can be
considered to be a Swiss child.
2. The applicants complain under Article 6 of the Convention of the
length of the asylum proceedings, lasting nearly nine years in the case
of the first applicant, and over seven years in the case of the second
applicant.
THE LAW
1. The applicants complain under Article 3 (Art. 3) of the
Convention of their expulsion from Switzerland. They submit in
particular that they have integrated well into the community where they
reside.
The Commission has examined these complaints under Articles 3
and 8 (Art. 3, 8) of the Convention.
Article 3 (Art. 3) of the Convention states:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
Article 8 (Art. 8) of the Convention states, insofar as relevant:
"1. Everyone has the right to respect for his private and
family life ...
2. There shall be no interference by a public authority with
the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society in the interests
of national security, public safety or the economic well-being
of the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the
rights and freedoms of others."
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, paras. 72 ff,).
In this respect, 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).
Moreover, the expulsion of a person from a country where close
members of his family are living may amount to an infringement of the
right to respect for his private and family life guaranteed in
Article 8 para. 1 (Art. 8-1) of the Convention (see Eur. Court HR,
Moustaquim v. Belgium judgment of 18 February 1991, Series A no. 193,
p. 18, para. 36; No. 9203/80, Dec. 5.5.81, D.R. 24, p. 239).
The Commission has first examined the applicants' case under
Article 3 (Art. 3) of the Convention. However, the applicants have
not complained that upon their return to the Democratic Republic of
Congo or Angola, respectively, they would be subjected to treatment
contrary to Article 3 (Art. 3) of the Convention. In any event, no
concrete risk of such treatment transpires from the case-file.
The Commission has next examined the applicants' case under
Article 8 (Art. 8) of the Convention. However, it notes that the
applicants will not be separated from each other, or from their
children, as a result of the expulsion. Moreover, the applicants have
not contended that after their expulsion they would be separated from
each other in that they would have to reside in different countries.
In any event, the Commission notes the decision of the Asylum Appeals
Commission of 2 June 1997 concerning the second applicant according to
which there was no risk of a civil war in Angola and the second
applicant could, therefore, be expected to follow the first applicant
to his home country.
This part of the application is, therefore, manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
2. The applicants complain under Article 6 (Art. 6) of the
Convention of the length of the asylum proceedings.
The Commission recalls that Article 6 (Art. 6) of the Convention
does not apply to asylum proceedings (see No. 12364/86, Dec. 17.10.86,
D.R. 50 p. 280). It has, therefore, examined this complaint under
Article 1 of Protocol No. 7 (P7-1) to the Convention which states in
para. 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' complaint does not disclose any
appearance of a violation of the rights set out in Article 1 para. 1
of Protocol No. 7 (P7-1-1). In this respect the application is
therefore 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.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy