AS TO THE ADMISSIBILITY OF
Application No. 21840/93
by M.Y., F.Y., B.Y.
and S.Y.
against Switzerland
The European Commission of Human Rights sitting in private on
14 May 1993, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
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
C.L. ROZAKIS
Mrs. J. LIDDY
MM. J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
M.A. NOWICKI
I. CABRAL BARRETO
Mr. M. de SALVIA, 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 7 May 1993 by
M.Y., F.Y., B.Y. and S.Y. against Austria and registered on 13 May 1993
under file No. 21840/93;
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 facts of the case, as submitted by the applicants, may be
summarised as follows:
The first applicant was born in 1952. The second applicant, born
in 1963, is his wife. The third applicant, born in 1982, and the
fourth applicant, born in 1986, are their children. The applicants are
Turkish citizens. Before the Commission they are represented by Mr H.
Vest, a lawyer practising in Aesch in Switzerland.
I.
The applicants make the following factual claims:
In 1988 the applicants were residing at Alcicek in the Elbistan
district in the Kahramanmaras province. Towards the end of 1988 the
first applicant commenced his support of the Kurdish Workers' Party,
the PKK. Thus, he had to provide, or pass on, food, money and
information.
Eventually, a member of the PKK was arrested; under torture he
mentioned the names of various other persons, including the first
applicant. The latter was then arrested and brought to the Nurhak
police station, where he was detained for 24 hours. During this period
he was beaten and ill-treated with cold water. Subsequently, he was
released for lack of evidence.
On 8 March 1989 he was again arrested by the police and brought
to the Elbistan police station, where he was detained for three days.
During this period he was again ill-treated. Subsequently, he was
released for lack of evidence. It appears that thereafter the first
applicant had to stay in bed for three or four days.
In July 1989 another PKK member revealed under torture the first
applicant's name. As a result, the applicants' house was searched by
the authorities. However, only the second applicant was present. The
authorities confiscated material pertaining to the PKK as well as a
photo of the first applicant. The second applicant had to sign a
document and was then brought to the police station where she was
beaten.
Thereafter, the applicants' house was constantly under
surveillance. The first applicant went into hiding in Izmit and later
in Adapazari.
Meanwhile PKK members apparently killed two persons in Alcicek
who had betrayed the organisation. The authorities also installed a
permanent post in the school house of Alcicek. In view thereof the
applicants decided to leave Turkey.
II.
The applicants left Turkey on 7 December 1989. They entered
Switzerland on 11 December 1989 and applied for asylum.
On 12 December 1989, when questioned by the Swiss asylum
authorities, the applicants claimed that they had been persecuted in
Turkey in view of their support of the PKK. The applicants were again
questioned on 12 January 1990 and 20 October 1992.
On 25 November 1992 the Federal Office for Refugees dismissed the
applicants' requests for asylum.
In its decision the Federal Office considered in the light of
various contradictions that the applicants' submissions lacked
credibility. For instance, while the first applicant had originally
claimed that he had been a member of the PKK, he later denied this.
Originally he had stated that he had been arrested together with three
persons; later he stated that eight to ten persons had been arrested.
Moreover, originally he stated that while hiding in Izmit he had
telephoned his wife; later he claimed that this had not been the case.
The Federal Office further noted that no court proceedings had
been instituted against the first applicant in Turkey. The second
applicant had moreover not been able to substantiate her claims.
Insofar as the applicant had submitted letters of various persons
supporting his claims, these statements did not coincide with the
applicants' previous submissions for which reason they had to be
considered as partisan (Gefälligkeitsschreiben).
The applicants filed an appeal against this decision to the Swiss
Asylum Appeals Commission (Schweizerische Asylrekurskommission) in
which they claimed inter alia that, contrary to the conclusions of the
Federal Office, the first applicant had not contradicted himself.
The applicants' appeal was dismissed by the Asylum Appeals
Commission on 23 March 1993.
The Appeals Commission found that the applicants' appeal
submissions could not change the conclusions of the Federal Office.
Had the first applicant worked so closely with the PKK, court
proceedings would most certainly have been introduced against him.
Insofar as the applicants submitted newspaper articles, these failed
to demonstrate an individual danger to the applicants.
The applicants have been ordered to leave Switzerland by 15 July
1993.
COMPLAINTS
1. The applicants complain under Article 3 of the Convention of the
order to leave Switzerland. They claim that the first applicant, upon
his return to Turkey, will immediately be arrested, tortured and
prosecuted for having supported the PKK. The applicants point out that
the first applicant was twice arrested, detained and ill-treated on
account of his activities for the PKK.
The applicants have submitted official documents according to
which one political friend of the first applicant, H.V., was killed in
a clash (bei einem Zusammenstoss) by the security forces in 1991;
another PKK member, A.B., was killed by the military forces in 1992.
The applicants have further submitted letters of various persons
from Alcicek and surroundings who can confirm that the first applicant
worked for the PKK. They have also submitted newspaper articles
according to which the authorities have vacated Alcicek and deported
all persons supporting the PKK.
2. The applicants complain under Article 6 of the Convention of the
manner in which the authorities dealt with their case in the asylum
proceedings.
3. Under Article 8 of the Convention the applicants claim that if
the first applicant cannot be expected to return to Turkey, this must
also apply to the second, third and fourth applicants who are family
members.
4. Under Article 13 of the Convention the applicants complain that
in view of the manner in which their case was dealt with by the
authorities they did not have an effective remedy at their disposal.
5. Finally, the applicants submit that their asylum requests were
apparently dismissed as they are unwanted foreigners and members of a
suppressed ethnic minority (wenn das Asylgesuch eines Ausländers
letzlich deshalb abgewiesen wird, weil er unerwünschter Ausländer und
Angehöriger einer unterdrückten ethnischen Minderheit ist). This
situation contravenes Article 14 of the Convention.
THE LAW
1. The applicants complain that they have been ordered to leave
Switzerland. They allege that upon their return to Turkey they will
be subjected to ill-treatment contrary to Article 3 (Art. 3) of the
Convention.
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 fear of treatment contrary to Articles 2 or 3 (Art. 2, 3) of
the Convention in the country to which the person is to be expelled
(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, p. 32
et seq., para. 81 et seq.).
In the present case the Commission notes that the Federal Office
for Refugees in its decision of 25 November 1992 dismissed the
applicants' requests for asylum, inter alia, in view of their
contradictory statements made when questioned by the Swiss authorities.
In their subsequent appeal the applicants pointed out that in fact the
first applicant had not contradicted himself. However, the Commission
need not resolve this issue since this part of the application is
inadmissible for the following reasons:
The Commission observes that the second applicant has not
provided any substantiation for her allegation that upon her return to
Turkey she would be treated in a manner contrary to Article 3 (Art. 3)
of the Convention.
The first applicant, on the other hand, has provided statements
of various persons of Alcicek and surroundings who knew him, as well
as documents demonstrating that certain persons died in clashes with
the authorities. However, the first applicant does not claim that any
criminal proceedings against him are pending or that any warrant for
his arrest has been issued.
In the Commission's opinion the first applicant has not
sufficiently demonstrated that, in view of his support of the PKK, he
was tortured or ill-treated by the authorities; or that upon his return
to Turkey he will risk such treatment.
Insofar as the applicants refer to clashes with the authorities
in the area where they lived, and to various newspaper articles
concerning the situation in Alcicek, the Commission recalls that 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 H.R.,
Vilvarajah and others judgment of 30 October 1991, Series A no. 215,
p. 37, para. 111).
In the present case the applicants have not shown that upon their
return to Turkey they could not take up residence in other parts of the
country.
The Commission finds therefore that the applicants have failed
to show that, upon their return to Turkey, they would face a real risk
of being subjected to treatment contrary to Article 3 (Art. 3) of the
Convention.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (art.(Art. 27-2) of
the Convention.
2. The applicants complain under Article 6 (Art. 6) of the
Convention of the manner in which the authorities dealt with their case
in the asylum proceedings.
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 civil rights or obligations or of a criminal charge within the
meaning of Article 6 para. 1 (Art. 6-1) 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.
3. The applicants complain that, if the first applicant cannot be
expected to return to Turkey, this must also apply to the second, third
and fourth applicants who are family members. The applicants rely on
Article 8 (Art. 8) of the Convention which guarantees to everyone,
inter alia, "the right to respect for his ... family life".
However, the Commission has just found that the applicants have
failed to show that, if they returned to Turkey, they would face a real
risk of being subjected to treatment contrary to Article 3 (Art. 3) of
the Convention. Hence, no issue of a separation of family members
arises. It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
4. Insofar as the applicants complain under Article 13 (Art. 13) of
the Convention that they did not have an effective remedy at their
disposal, the Commission notes that the applicants' request for asylum
was dealt with by the Federal Office for Refugees and, upon appeal, by
the Swiss Asylum Appeals Commission. Hence, the applicants had an
effective remedy at their disposal within the meaning of Article 13
(Art. 13) of the Convention. This part of the application is therefore
also manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
5. Finally, the applicants complain under Article 14 (Art. 14) of
the Convention that their requests for asylum were dismissed as they
are unwanted foreigners and members of a suppressed ethnic minority.
However, the Commission finds no evidence in the case-file which could
substantiate such an allegation under this provision. It follows that
the remainder of 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.
Deputy Secretary to the Commission President of the Commission
(M. de Salvia) (C.A. Nørgaard)
Full & Egal Universal Law Academy