AS TO THE ADMISSIBILITY OF
Application No. 38789/97
by Abuka MOSIMI
against Switzerland
The European Commission of Human Rights sitting in private on
22 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
F. MARTINEZ
C.L. ROZAKIS
Mrs J. LIDDY
MM L. LOUCAIDES
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 21 November 1997
by Abuka Mosimi against Switzerland and registered on 27 November 1997
under file No. 38789/97;
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 applicant, a citizen of the Democratic Republic of Congo born
in 1959, resides in Zürich. Before the Commission she is represented
by Mr M. Kellenberger, a legal adviser practising in Zürich.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
Until 1995 the applicant lived in the former Republic of Zaire.
In 1989, she became Committee secretary to the "Mouvement des mamans
catholiques" of the St Ciprien parish close to the Tshatsi military
camp. At the monthly meetings, where the applicant would take the
floor, women from the camp met and often criticised the former
Government.
It transpires that in 1993, during her absence, unknown persons
went to her home looking for her. Her house was searched and ransacked
and bullets were found in the walls. Out of fear the applicant fled
towards the end of 1993 to her house in Mont-Ngafula where she
apparently resided for some time.
In August 1994, a woman from the Tshatsi camp advised her to be
prudent. Reference was made in particular to her speeches in the
parish in which she urged the wives of military staff not to follow
orders.
On 25 June 1995 the applicant was asked by another woman to hold
a speech in a neighbouring parish. When travelling together by car,
they were stopped by two persons, and the applicant was asked to get
out. She was brought to an unknown place where she was questioned and
then beaten. The applicant became unconscious and woke up after a coma
of three days in a hospital. It transpires that a hospital doctor
advised her to feign a coma as unknown persons had inquired about her.
On 10 July 1995, the applicant fled from hospital with the help
of her brother-in-law and went into hiding.
On 17 August 1995 the applicant left the country. Travelling via
Congo-Brazzaville, Russia and Italy, she entered Switzerland on
6 September 1995.
On 19 September 1995 the applicant filed a request for asylum,
claiming persecution in her home country. She was heard by the Swiss
authorities on 8 and 19 December 1995.
On 13 August 1997, the Federal Office for Refugees (Bundesamt für
Flüchtlinge) dismissed the applicant's request and ordered the
applicant to leave Switzerland. In its decision, the Office found the
applicant's submissions as to the various events unconvincing. For
instance, it did not appear credible that the persons concerned would
have searched for her in her absence, yet had not looked for her when
she was present, for instance at the parish meetings. The Office also
referred to the change of government in Congo after the applicant had
left.
The applicant's appeal was dismissed by the Swiss Asylum Appeals
Commission (Schweizerische Asylrekurskommission) on 23 October 1997
which confirmed the grounds given by the Federal Office. The Appeals
Commission noted, inter alia, that, after political parties had been
admitted in former Zaire, the Government had been criticised at many
mothers' meetings. It was further noted that after the change of
Government there was no general situation of violence in Congo, and
there were no indications that the applicant would be subjected to a
particular danger upon her return.
By letter of 30 October 1997 the Federal Office for Refugees
requested the applicant to leave Switzerland not later than 31 January
1998.
COMPLAINTS
The applicant complains that upon her return she will be
subjected to inhuman treatment and torture contrary to Article 3 of the
Convention. She requests asylum in Switzerland or at least that her
stay should be tolerated on humanitarian grounds. The applicant also
requests the Commission to grant suspensive measures.
Under Article 6 of the Convention the applicant complains of the
asylum proceedings in which she was involved. For instance, she was
not duly heard, and the decisions were incorrect.
THE LAW
1. The applicant complains that upon her return to Congo she will
be subjected to inhuman treatment and torture contrary to Article 3
(Art. 3) of the Convention. This provision 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 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).
Nevertheless, 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, the Commission notes that the applicant has not provided
any substantiation of her fears concerning ill-treatment upon her
return to the Democratic Republic of Congo. It has furthermore not
been contended that the inhuman treatment allegedly suffered by the
applicant emanated from the authorities, or that upon her return such
treatment also had to be feared from the authorities of the new
Government of the Democratic Republic of Congo.
The Commission also notes the domestic authorities' conclusion
according to which the applicant's submissions as to the various events
did not appear credible.
As a result, the applicant has failed to show that upon her
return to the Democratic Republic of Congo 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 is, therefore, manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant complains under Article 6 (Art. 6) of the
Convention of the asylum proceedings in which she was involved and
their outcome. She complains in particular that she was not duly
heard.
However, Article 6 (Art. 6) of the Convention does not apply to
such proceedings (see No. 8118/77, Dec. 19.3.81, D.R. 25, p. 105). The
Commission has nevertheless 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 applicant was "lawfully resident"
in Switzerland within the meaning of this provision, the Commission
finds that her 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).
The remainder of 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. de SALVIA J.-C. GEUS
Secretary Acting President
to the Commission of the Commission
Full & Egal Universal Law Academy