AS TO THE ADMISSIBILITY OF
Application No. 37718/97
by P. A.
against Switzerland
The European Commission of Human Rights sitting in private on
18 September 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
C.L. ROZAKIS
L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
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
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 21 August 1997 by
P. A. against Switzerland and registered on 10 September 1997 under
file No. 37718/97;
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 Kosovo in Yugoslavia born in 1947,
resides in Susten in Switzerland.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant has been residing in Switzerland since 1972, though
on various occasions he has returned to Yugoslavia, in particular
between 1990 and 1994. In 1972 and 1973 he was in Switzerland as a
seasonal worker, from 1974 until 1980 he had a residence permit
(Aufenthaltsbewilligung), as from 1984 to 1990 he was again a seasonal
worker. His wife and one child as well as his parents, brothers and
sisters reside in Yugoslavia, a further child resides in Germany.
The applicant left his home country in 1995 by walking to
Albania, travelling to Italy, and entering Switzerland by evading the
border control.
On 5 October 1995 the applicant filed a request for asylum in
Switzerland. He was heard by the Swiss authorities on the same day,
and again on 22 December 1995. The applicant explained to the Swiss
authorities that the Serb police had come twice a week to his home to
inquire where he was. The applicant saw political reasons herefor, in
particular that he had won compensation proceedings against the
Yugoslav Government. Moreover, the nephew of the President of Kosovo
had married his, the applicant's, daughter, though he and the President
were no longer on amicable terms. The applicant admitted that when
returning to his home country after 1990 he had spent up to four days
at his home. In respect of alleged ill-treatment in Yugoslavia he
stated that "he had been beaten a couple of times and detained up to
three weeks by the Serb police".
On 7 February 1996 the Federal Office for Refugees (Bundesamt für
Flüchtlinge) dismissed the applicant's request for asylum. He filed
an appeal in which he referred, inter alia, to a letter of 11 February
1992 addressed to him by the Yugoslav Consulate General in Zürich. The
letter stated:
"The territorial army authorities of the Municipal Assembly of
Suva Reka have requested us to inform you of your being enrolled
as well of your obligations according to the law on military
service. As you have left without a formal authorisation,
corresponding legal measures may be taken against you. You are
requested immediately upon receipt of this letter to report to
the Consulate General."
The applicant's appeal was dismissed by the Swiss Asylum Appeals
Commission (Schweizerische Asylrekurskommission) on 15 April 1996. The
Appeals Commission noted, inter alia, that the applicant's fears were
contradicted by the fact that since 1990 he had regularly and
voluntarily returned to his home country. Moreover, upon his first
questioning by the Swiss authorities he had not immediately mentioned
that he had been detained and ill-treated. When questioned the second
time, he had not at all mentioned his detention. The applicant had
also not sufficiently substantiated that criminal proceedings would be
instituted against him as he had deserted from the army. The Appeals
Commission noted in particular that the applicant had only submitted
a copy of the letter of 11 February 1992 and that manipulations could
therefore not be excluded.
COMPLAINTS
Insofar as it can be determined from the applicant's submissions,
he complains, without reference to any particular provision of the
Convention, of his expulsion to Yugoslavia where he has been ill-
treated by the police and is wanted on political grounds. He claims
that his family is being persecuted, and that when he was in
Yugoslavia, he occasionally had to flee to his aunt who lives in the
Former Yugoslav Republic of Macedonia. He fears that upon his return
he will be remanded in custody and ill-treated.
THE LAW
The applicant complains of his expulsion to Yugoslavia where he
will allegedly be ill-treated.
The Commission has examined this complaint under Article 3
(Art. 3) of the Convention which states:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
However, under Article 26 (Art. 26) of the Convention the
Commission "may only deal with the matter ... within a period of six
months from the date on which the final decision was taken".
In the present case, the Swiss Asylum Appeals Commission
dismissed the applicant's appeal on 15 April 1996, whereas the present
application was introduced on 21 August 1997, that is, more than six
months after the date of this decision. The application has, therefore
been introduced out of time and must be rejected under Article 27
para. 3 (Art. 27-3) of the Convention.
The application would in any event also 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, 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).
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.
The applicant has submitted in support of his allegations a copy
of a letter of the Yugoslav Consulate General in Zürich according to
which the applicant had apparently left the army without authorisation,
and that certain measures could be taken against him.
The Commission need not examine whether this letter dated
11 February 1992 is still of relevance. It suffices to note that after
the letter was prepared the applicant voluntarily returned to his home
country, and was even able to stay at his home. It is true that the
applicant submits that during his stay in Yugoslavia he was detained
and ill-treated by the police. However, he has not provided any
substantiation herefor either before the Commission or the Swiss
authorities.
As a result, the applicant has failed to show that upon his
return to Yugoslavia 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