AS TO THE ADMISSIBILITY OF
Application No. 27139/95
by Erdal SÖNGER
against Switzerland
The European Commission of Human Rights (Second Chamber) sitting
in private on 24 May 1995, the following members being present:
Mr. H. DANELIUS, President
Mrs. G.H. THUNE
MM. G. JÖRUNDSSON
S. TRECHSEL
J.-C. SOYER
H.G. SCHERMERS
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
Ms. M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 20 March 1995 by
Erdal Sönger against Switzerland and registered on 26 April 1995 under
file No. 27139/95;
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 applicant, may be
summarised as follows.
The applicant, a Turkish citizen of Kurdish origin born in 1974,
is a labourer residing at Steinhausen in Switzerland. Before the
Commission he is represented by Mr H.P. Roth, a legal adviser.
I.
In 1992 the applicant lived in Maras in Turkey where he worked
in the shop of his father. As from early 1992 onwards members of the
Kurdish Workers Party, the PKK, frequented the shop. While he was
first unaware of their political connections, he suspected their ties
with the PKK as they frequently only came after midnight to the shop.
Eventually, these persons confirmed their membership of the PKK, but
instructed the applicant not to tell his father anything. At some
stage the applicant apparently was offered the unspecified function of
"village guard". However, other persons in the village must have
reported these events to the father, though the applicant denied any
knowledge thereof.
Eventually, a person unknown to the applicant informed the police
of the events whereupon police officers turned up at the shop and asked
the applicant to admit that members of the PKK were frequenting the
shop. This was denied by the applicant. Three days later, apparently
in early May, the police returned, calling the applicant a liar,
threatening him with death and asking him to report any further visits
of PKK members by means of radio transmission. The applicant declined.
In April and May 1992 the members of the PKK frequented the shop
on approximately six to seven occasions.
Later in 1992 soldiers again appeared in the shop. In view of
empty Coca Cola bottles on the floor, they concluded that PKK members
had again turned up, whereupon the applicant was hit on his neck. He
fell and cut himself on a broken bottle.
The next day the applicant informed his father for the first time
of all these events and told him that he would go to his uncle in
Antalya. When he heard that the soldiers had found out his new
whereabouts, he decided to leave his country.
On 19 September 1992 the applicant left Turkey from Istanbul.
II.
On 23 September 1992 the applicant entered Switzerland where he
requested asylum. He was heard by the Swiss authorities on 19 October
1992 and 12 July 1994.
His request for asylum was dismissed on 30 August 1994 by the
Federal Office for Refugees (Bundesamt für Flüchtlinge) which found
that the applicant's submissions did not appear credible. Thus, it
appeared unlikely that the PKK had continued to turn up at the father's
shop even though the police had made inquiries there, and that the
father had remained unaware of the events. There were also doubts as
to whether a person unknown to the applicant would have first reported
him to his father and then to the police.
Insofar as the applicant maintained that upon his return he would
refuse to perform military service and therefore lose his Turkish
nationality, the Federal Office considered that according to the
applicable law the applicant risked a fine or imprisonment, neither of
which constituted a ground for granting asylum in Switzerland.
The applicant's appeal was dismissed on 17 November 1994 by the
Swiss Asylum Appeals Commission (Schweizerische Asylrekurskommission)
which found that the applicant had failed sufficiently to substantiate
a danger of persecution upon his return to Turkey, in particular as
there were too many contradictions in his submissions. The Commission
further found that upon his return the applicant was free to reside in
another area of Turkey, which according to his own submissions he had
already previously done without any difficulties.
The applicant requested the reopening of this decision inter alia
as the Commission had failed to deal with his complaint that he would
be severely punished upon his return to Turkey if he refused to perform
military service. This request was dismissed by the Asylum Appeals
Commission on 10 March 1995, inter alia as the previous decision had
sufficiently mentioned these submissions.
COMPLAINTS
The applicant complains under Article 3 of the Convention that
upon his return to Turkey he would face severe psychological distress
(psychische Notlage) as he would have to choose between performing
military service and participating in the crimes of war against other
Kurds or serving longterm imprisonment for objecting to military
service. Moreover, if criminal proceedings were instituted against him
he could not expect to be treated fairly as required by Article 6 of
the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 20 March 1995.
On 24 March 1995 the President of the Commission decided not to
apply Rule 36 of the Commission's Rules of Procedure.
The application was registered on 26 April 1995.
THE LAW
The applicant complains under Article 3 (Art. 3) of the
Convention that upon his return to Turkey he will either have to
perform military service and fight against the Kurds, or be subject to
criminal proceedings contrary to Article 6 (Art. 6) of the Convention
as a result of which he will be convicted and sentenced to longterm
imprisonment.
Article 3 (Art. 3) of the Convention 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 exceptionally involve a
violation of the Convention, for example where there is a serious and
well-founded 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 Eur. Court H.R., Soering judgment of 7 July 1989, Series A no.
161, p. 32 et seq., paras. 81 et seq.; p. 45, para. 112).
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 H.R., Vilvarajah and others judgment of
30 October 1991, Series A no 215, p. 37, para. 111).
The Commission has had regard to the decisions of the Federal
Office for Refugees on 30 August 1994 and of the Swiss Asylum Appeals
Commission in Matters of Asylum of 17 November 1994 and 10 March 1995.
The Commission notes that the authorities carefully examined the
applicant's allegations, though they concluded that in view of the
applicant's submissions as to the events in his home village in 1992
he had not credibly established a danger of persecution upon his return
to Turkey.
The Commission has further examined the applicant's complaints
about military service awaiting him upon his return to Turkey. It
recalls its case-law according to which prosecution for refusal to
perform military service does not in itself constitute treatment
contrary to Article 3 (Art. 3) of the Convention (see No. 12364/86,
dec. 17.10.86, D.R.50 p. 280). In the present case the applicant has
not provided any documents or other evidence in support of his
allegations. In particular, no indications have been given as to
whether he would indeed be obliged to perform military service and
during what period of time, in what area of Turkey and in which
function in the army it appeared likely that he would have to perform
his service.
As a result, the applicant has failed to show that upon his
return to Turkey he would face a real risk of being subjected to
treatment contrary to Article 3 (Art. 3) of the Convention.
The application is therefore 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.
Secretary to the Second Chamber President of the Second Chamber
(M.-T. SCHOEPFER) (H. DANELIUS)
Full & Egal Universal Law Academy