AS TO THE ADMISSIBILITY OF
Application No. 37723/97
by P. M. and G. M.
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 25 July 1997 by
P. M. and G. M. against Switzerland and registered on 10 September 1997
under file No. 37723/97;
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 applicants, mother and son, are citizens of the Democratic
Republic of Congo (formerly Zaire) born in 1970 and 1997, respectively.
They reside in Murgenthal in Switzerland. Before the Commission they
are represented by Mr Kellenberger, a legal adviser practising in
Zürich.
The facts of the case, as submitted by the applicants, may be
summarised as follows.
The first applicant left Zaire on 20 October 1996 and entered
Switzerland on 25 October 1996 where on the same day she requested
asylum. She was questioned by the Swiss authorities on 13 November and
9 December 1996. The first applicant submitted that, while in Zaire,
her life companion had made propaganda for the "Parti Lumumbiste
Unifié" (PALU) of which he was a member. On 29 July 1995 he was taken
away from his home by armed persons and never seen again. In May 1996,
men again turned up and asked the first applicant as to the whereabouts
of her life companion. On 20 July 1996 certain persons appeared and
asked her about her life companion. She was then raped, beaten and her
knees were injured, and her television and radio were stolen. She then
fled the country.
On 27 March 1997 the Federal Office for Refugees (Bundesamt für
Flüchtlinge) dismissed the applicant's request. It noted that on
29 July 1995 a demonstration of PALU had taken place in Kinshasa in
Zaire, though the name of the applicant's life companion did not appear
on the lists of the victims of the demonstration later published by
PALU and a Zairean human rights organisation. As a result, the
disadvantages suffered by the first applicant did not appear credible.
On 26 April 1997 the first applicant's lawyer filed an appeal in
which she stated that she was pregnant, and that the pregnancy resulted
from her having been raped. She also stated that it had not crossed
her mind to report her life companion's abduction to PALU.
On 9 June 1997 the second applicant was born.
On 7 July 1997 the Swiss Asylum Appeals Commission
(Schweizerische Asylrekurskommission) dismissed the applicant's
request. Insofar as the first applicant maintained in her appeal
statement that she was pregnant, the Appeals Commission noted that she
had failed to refer hereto when questioned by the authorities on
13 November and 9 December 1996 and that therefore it did not appear
likely that there was a relationship between her pregnancy and her
having been raped.
The applicants were requested to leave Switzerland by 15 August
1997.
COMPLAINTS
1. The applicants complain under Articles 2 and 3 of the Convention
of their expulsion to the Democratic Republic of Congo. The first
applicant points out that she was beaten, tortured and eventually raped
and, as a result, became pregnant. The situation in the Democratic
Republic of Congo is not at all stable, and the first applicant has
been weakened by the birth of her child.
2. The applicants complain under Article 6 of the Convention that
they were not duly heard in the domestic proceedings.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 25 July 1997.
On 4 August 1997 the Acting President of the Commission decided
not to apply Rule 36 of the Commission's Rules of Procedure.
The application was registered on 10 September 1997.
THE LAW
1. The applicants complain under Articles 2 and 3 (Art. 2, 3) of the
Convention of their expulsion to the Democratic Republic of Congo. The
first applicant submits that she was beaten and raped, and that she
became pregnant as a result of her having been raped.
The Commission has examined these complaints 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."
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).
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 applicants.
However, the Commission notes that the applicants have not
provided any substantiation of their fears concerning ill-treatment
upon their return to the Democratic Republic of Congo. It has not been
contended that the inhuman treatment allegedly suffered by the first
applicant emanated from the authorities, or that upon the applicants'
return such treatment also had to be feared from the authorities of the
new Government of the Democratic Republic of Congo.
The Commission further notes the domestic authorities' conclusion
according to which the first applicant's submissions concerning her
life companion did not appear credible. Moreover, she had failed to
refer to her pregnancy when questioned by the Swiss authorities on
13 November and 9 December 1996 and that therefore it was not found
that there was a relationship between her pregnancy and her having been
raped.
As a result, the applicants have failed to show that upon their
return to the Democratic Republic of Congo they 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 applicants complain under Article 6 (Art. 6) of the
Convention that they were not duly heard in the domestic proceedings.
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 applicants were "lawfully
resident" in Switzerland within the meaning of this provision, the
Commission finds that the applicants' complaints do not disclose any
appearance of a violation of the rights set out in Article 1 para. 1
of Protocol No. 7 (P7-1-1).
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.
H.C. KRÜGER G.H. THUNE
Secretary Acting President
to the Commission of the Commission
Full & Egal Universal Law Academy