AS TO THE ADMISSIBILITY OF
Application No. 41356/98
by Sewa and Poovi WILSON
against Germany
The European Commission of Human Rights sitting in private on
29 May 1998, the following members being present:
MM S. TRECHSEL, President
J.-C. GEUS
M.P. PELLONPÄÄ
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
Mrs G.H. THUNE
MM F. MARTINEZ
C.L. ROZAKIS
Mrs J. LIDDY
MM L. LOUCAIDES
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
M. VILA AMIGÓ
Mrs M. HION
MM R. NICOLINI
A. ARABADJIEV
Mr M. de SALVIA, 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 20 March 1998 by
Sewa and Poovi WILSON against Germany and registered on 25 May 1998
under file No. 41356/98;
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, born in 1958 and 1960, respectively, are citizens
of Togo. They are a married couple and currently stay in Steinfeld.
Before the Commission, they are represented by Ms. B. Ginsberg, a
lawyer practising in Köln.
The facts of the case, as submitted by the applicants, may be
summarised as follows.
1. The first applicant left Togo in July 1992. He entered the
territory of Germany in August 1992 and applied for asylum.
On 31 August 1993 he was heard by the Federal Office for Refugees
(Bundesamt für die Anerkennung ausländischer Flüchtlinge) in the
context of his asylum proceedings. He stated that in Togo he had been
a member of the opposition party PSP (Parti Socialiste Panafricain).
On 24 July 1992, following the assassination of the PSP's leader Tavio
Amorin, he had organised a demonstration in Lomé. The barricades raised
by the demonstrators had been attacked by the army and he had thereupon
fled to Ghana.
On 8 October 1993 the Federal Office for Refugees dismissed the
first applicant's request for asylum and ordered the applicant to leave
Germany.
On 13 June 1997 the Oldenburg Administrative Court
(Verwaltungsgericht) dismissed the first applicant's action challenging
the refusal of asylum and the expulsion. The Court considered that,
having regard to major contradictions, his statements regarding his
arrest following his alleged involvement in organising a demonstration
on 24 July 1992 were not credible. Furthermore, the Court found that
the first applicant's membership of the opposition party PSP was no
reason to fear political persecution on his return to Togo, as only
high representatives of these parties or extremist opposition parties
had to fear persecution on account of their previous political
activities. Furthermore, the fact of having applied for asylum in
Germany and the first applicant's political activities did not expose
the first applicant to a real risk of persecution upon his return to
Togo. In these respects, the Court, on the basis of reports provided
by the German Ministry for Foreign Affairs and the UN High Commissioner
for Refugees, considered in detail the situation in Togo.
On 30 July 1997 the Lower Saxony Administrative Court of Appeal
(Oberverwaltungsgericht) decided not to admit the applicant's appeal
against the Oldenburg Administrative Court's decision.
2. In July 1993 the second applicant left Togo and entered the
territory of Germany. She also applied for asylum.
On 4 August 1993 she was heard by the Federal Office for Refugees
in the context of her asylum proceedings. She stated that policemen
had repeatedly come to her house in search of her husband. She had
left their child with her parents.
On 8 October 1993 the Federal Office for Refugees dismissed the
second applicant's request for asylum and ordered her to leave Germany.
On 13 June 1997 the Oldenburg Administrative Court dismissed the
second applicant's action to challenge the Federal Office's decision.
As regards the second applicant's argument, raised in the course of the
court proceedings, that she risked persecution on account of her
political activities in Germany, the Court considered that these
activities were not of a nature to make political persecution on her
return to Togo probable. In reasoning its decision, the Court referred
to reports provided by the German Ministry for Foreign Affairs and the
UN High Commissioner for Refugees.
On 4 August 1997 the Lower Saxony Administrative Court of Appeal
decided not to admit the applicant's appeal against the Oldenburg
Administrative Court's decision.
3. On 18 September 1997 the Federal Office for Refugees dismissed
the applicants' renewed application for asylum (Asylfolgeantrag), which
concerned further submissions regarding their political activities in
Germany, on the ground that there was no relevant new evidence.
On 22 October 1997 the Oldenburg Administrative Court dismissed
the applicants' request for interim measures against the expulsion.
The Court observed that part of the issues raised by the applicants had
been finally decided in the context of the first set of asylum and
expulsion proceedings. It further found that the new evidence
submitted by the applicants, i.e. an article in a local newspaper
relating to the first applicant's political activities in Togolese
opposition parties in Germany and his expulsion proceedings, did not
disclose a real risk of persecution upon their return to Togo and could
not, therefore, justify an interim measure.
On 10 December 1997 the Federal Constitutional Court
(Bundesverfassungsgericht) refused to admit the applicants'
constitutional complaint.
On 7 January, 23 January and 16 March 1998 the Oldenburg
Administrative Court decided respectively not to modify its previous
decisions. The Court considered that the newspaper articles concerning
the applicants' engagement in local Togolese opposition groups and
other documents submitted by the applicants in each of these
proceedings did not disclose any new evidence proving a sufficient
danger for the applicants upon their return to Togo.
COMPLAINTS
The applicants complain that upon their return to Togo they will
be subjected to inhuman treatment and torture contrary to Article 3 of
the Convention.
PROCEDURE BEFORE THE COMMISSION
The application was introduced on 20 March 1998.
On 9 April 1998 the President of the Commission refused the
applicant's request to stop their expulsion during the Commission
proceedings, pursuant to Rule 36 of the Commission's Rules of
Procedure.
In their submissions of 25 April 1998, the applicants renewed
their request under Rule 36.
THE LAW
The applicants complain that upon their return to Togo they will
be subjected to inhuman treatment and torture contrary to Article 3
(Art. 3) of the Convention.
This provision states:
"No one shall be subjected to torture or 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, 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, Reports of Judgments and Decisions 1996-V, p.
1831, paras. 72 et seq.).
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.
Even assuming compliance with Article 26 (Art. 26) of the
Convention as regards the submissions raised in the first set of
domestic proceedings, the Commission notes that the German authorities
did not find the first applicant's allegations about his activities
before he left Togo credible. Moreover, having regard to reports on
the human rights situation in Togo, they considered that the fact of
having applied for asylum and the political activities pursued by the
applicants in Germany would not entail persecution in Togo.
The Commission, having regard to all the material before it,
considers that the applicants have failed to show that upon their
return to Togo they would face a real risk of being subjected to
treatment contrary to Article 3 (Art. 3) of the Convention. It follows
that there is no appearance of a violation of 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.
M. de SALVIA S. TRECHSEL
Secretary President
to the Commission of the Commission
Full & Egal Universal Law Academy