AS TO THE ADMISSIBILITY OF
Application No. 35603/97
by N. S.
against Switzerland
The European Commission of Human Rights sitting in private on
17 April 1997, 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.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
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. 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 4 April 1997 by
N. S. against Switzerland and registered on 10 April 1997 under file
No. 35603/97;
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 Sri Lankan citizen of Tamil origin born in 1949,
resides in Herzogenbuchsee in Switzerland. Before the Commission he
is represented by Mr. M. Buser, a lawyer practising in Bern.
The applicant entered Switzerland in 1983 where he requested
asylum. He withdrew his request in 1990 after he was granted a
residence permission.
On 30 March 1992, in the course of a fight in Herzogenbuchsee,
the applicant killed another Tamil citizen, K.K. The crime was
witnessed by K.K.'s nephew, Th.K., a leading figure of the Solothurn
group in Switzerland of the LTTE (Liberation Tigers of Tamil Eelam).
As a result, the applicant was sentenced to seven years' imprisonment
and ten years' banishment (Landesverweisung) from Switzerland.
On 28 November 1996 the applicant was prematurely released from
imprisonment and his banishment suspended on probation. Previously,
on 26 November 1996 the applicant had filed a request for asylum.
On 10 December 1996 the applicant was questioned by the Federal
Office for Refugees (Bundesamt für Flüchtlinge) as to his request for
asylum. The applicant submitted, on the one hand, that before he had
left Sri Lanka his restaurant had twice been destroyed. On the other
hand, he pointed out that, as he had killed a member of the Tamil
Tigers, he could expect a vendetta by the other members. Such a threat
had been uttered by Th.K. and had been overheard by the applicant's
son.
The applicant's request was dismissed on 30 December 1996 by the
Federal Office for Refugees which also ordered the applicant to leave
Switzerland before 31 January 1997. Insofar as the applicant feared
a vendetta upon his return, the Office noted that K.K. had been a
member of the TELO (Tamil Eelam Liberation Organisation), rather than
the LTTE, and it was known that the two movements were hostile towards
each other. Moreover, K.K. had been expelled from the TELO in 1987.
The Federal Office thus found it unlikely that the applicant would
become the victim of a vendetta.
The applicant filed an appeal with the Swiss Asylum Appeals
Commission (Schweizerische Asylrekurskommission). He requested that
the appeal be granted suspensive effect. He also applied for legal
aid.
On 17 February 1997 the Asylum Appeals Commission dismissed his
request for suspensive effect, inter alia, as the applicant had
insufficiently substantiated a danger of vendetta upon his return to
Sri Lanka. In view of the lack of prospects of success of the appeal,
the Asylum Appeals Commission also dismissed the applicant's request
for legal aid and imposed costs of 450 Swiss Francs (CHF) on the
applicant if he wished to pursue his appeal.
The applicant failed to pay the costs, and on 10 March 1997 the
Asylum Appeals Commission declared his appeal inadmissible.
COMPLAINTS
The applicant complains under Article 3 of the Convention that
he risks inhuman treatment upon his expulsion to Sri Lanka. He submits
that he will be threatened with murder as he has killed the uncle of
Th.K. In view of the civil war in Sri Lanka and the violence employed
by the LTTE, it would be simple for Th.K. to organise the applicant's
death.
THE LAW
The applicant complains that, if he is expelled to Sri Lanka, he
risks treatment contrary to Article 3 (Art. 3) 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."
In the present case, the Swiss Asylum Appeals Commission on
10 March 1997 declared the applicant's appeal inadmissible as he had
failed to pay the costs imposed. However, according to the
Commission's case-law, there is no exhaustion of domestic remedies
within the meaning of Article 26 (Art. 26) of the Convention where a
domestic appeal is not admitted because of a procedural mistake (see
No. 6878/75, Dec. 6.10.76, Le Compte v. Belgium, D.R. 6, p. 79).
An issue arises, therefore, whether the applicant has complied
with the requirement under Article 26 (Art. 26) of the Convention as
to the exhaustion of domestic remedies. However, the Commission need
not resolve this issue since the application would in any event be
inadmissible for the following reasons.
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, 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 applicant. It notes that in the
domestic proceedings the applicant pointed out that his son had
overheard Th.K. who had referred to a vendetta against the applicant.
In the Commission's opinion, however, this statement alone cannot
suffice to substantiate the applicant's fears that, upon his return,
he would risk treatment contrary to Article 3 (Art. 3) of the
Convention, or that the risk, if any, would be greater in Sri Lanka
than in Switzerland.
The Commission has further had regard to the decision of the
Federal Office for Refugees of 30 December 1996. The Commission notes
that the Federal Office carefully examined the applicant's allegations,
but concluded that the applicant's submissions lacked credibility. It
noted in particular that the victim, K.K., had been a member of the
TELO, rather than of the LTTE, and it was known that the two movements
were hostile towards each other. Moreover, K.K. had been expelled from
the TELO in 1987.
As a result, the applicant has failed to show that upon his
return to Sri Lanka he would face a real risk of being subjected to
treatment contrary to Article 3 (Art. 3) of the Convention.
The application would therefore also be 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