AS TO THE ADMISSIBILITY OF
Application No. 40136/98
by Y. E.
against Switzerland
The European Commission of Human Rights sitting in private on
13 March 1998, the following members being present:
MM J.-C. GEUS, Acting President
M.P. PELLONPÄÄ
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
Mrs G.H. THUNE
MM F. MARTINEZ
C.L. ROZAKIS
L. LOUCAIDES
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
A. PERENIC
C. BÎRSAN
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 28 January 1998
by Y. E. against Switzerland and registered on 7 March 1998 under file
No. 40136/98;
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 applicant, a Sudanese citizen born in 1959, is a software
computer engineer residing in Zürich.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant, who grew up in Egypt, entered Switzerland in 1983.
In 1984 he commenced his studies at the University of Zürich in
economic computer sciences (Wirtschaftsinformatik). He also undertook
studies at the Rapperswil Intercantonal Technical High School where he
obtained a degree in software engineering in 1992.
In 1991 the applicant informed the Swiss Aliens' Police
(Fremdenpolizei) that he would terminate his university studies within
a year, whereupon his residence permit (Aufenthaltsbewilligung) was
prolonged until 1992.
On 25 November 1992 the applicant filed a request for a
prolongation of the residence permit for a further year. This was
refused by the Police Department (Polizeidirektion) of the Government
(Regierungsrat) of the Canton of Zürich on the ground that he had had
sufficient time to complete his studies.
The applicant's appeal was dismissed by the Government of Zürich
on 11 August 1993. In its decision the Government noted that the
applicant had come to Switzerland to study. He was now in his 16th
semester and could be expected to have terminated his studies within
this period of time.
On 1 September 1993 the Federal Office for Foreigners (Bundesamt
für Ausländerfragen) ordered the applicant to leave Switzerland.
Meanwhile, the applicant worked in 1992 during the university
holidays for three weeks in the printing offices of a newspaper. As
a result, he suffers from respiratory problems, in particular bronchial
asthma. He requested social security benefits as the illness had
occurred during work, but his request was dismissed, upon appeal, by
the Swiss Accident Insurance Foundation (Schweizerische
Unfallversicherungsanstalt) on 14 April 1994.
The applicant filed an appeal against the decision of 1 September
1993 in which he referred in particular to his respiratory problems.
The appeal was dismissed by the Federal Department of Justice and
Police (Eidgenössisches Justiz- und Polizeidepartement) on 21 November
1997. In its decision the Department noted in particular that the
applicant suffered from bronchial asthma, particularly in the evenings
when going to bed; when it was cold; and when he walked quickly.
However, according to a medical report the applicant's condition was
stable, though the applicant could only be expected to return to his
home country if he received a particular medication. In this respect,
the decision noted that the company producing the medicaments was
willing to ensure that the applicant would receive the required
supplies in Sudan. The decision also noted that the applicant would
be privileged in his home country in view of his education and his
personal and economic circumstances, and that he was envisaging
founding a computer firm in respect of which he had the necessary
knowledge. The decision finally referred to the applicant's Sudanese
and Egyptian dual nationality which would permit him also to reside in
Egypt where he had previously lived.
COMPLAINTS
The applicant complains, without reference to any particular
Convention provision, of his return to Sudan, stating that he suffers
from bronchial asthma requiring a particular medication. He submits
five medical statements confirming this situation. These statements
consider that the applicant may be treated as an outpatient, though he
can only be expected to return to his home country if appropriate
medication is assured. The applicant submits that he cannot obtain,
or afford to buy, these expensive medicaments in Sudan, and that the
tensions between Sudan and Egypt imply that he would not obtain a
residence permit in Egypt.
THE LAW
The applicant complains of his return to Sudan, claiming that he
suffers from bronchial asthma which requires a particular medication.
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."
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 1996-V, no. 22, p. 1831, paras. 72 ff).
The Commission further recalls that ill-treatment must attain a
minimum level of severity if it is to fall within the scope of Article
3 (Art. 3). The assessment of this minimum is, in the nature of
things, relative; it depends on all the circumstances of the case, such
as the duration of the treatment, its physical or mental effects and,
in some cases, the sex, age and state of health of the victim (see Eur.
Court HR, Ireland v. United Kingdom judgment of 18 January 1978,
Series A no. 25, p. 65, para. 162).
In this respect, an issue may arise where there is a real risk
that a person's removal would be contrary to the standards of Article
3 (Art. 3) of the Convention in view of his present medical condition
(see Eur. Court HR, D. v. United Kingdom judgment of 2 May 1997,
Reports 1997-III, No. 37, para. 50).
The Commission has examined the circumstances of the present case
as they have been submitted by the applicant.
According to various medical statements submitted by the
applicant, he suffers from bronchial asthma requiring a particular
medication.
It is true that the applicant submits that, if he were returned
to Sudan, he could not obtain, or afford to buy, these expensive
medicaments.
The Commission notes at the outset that the applicant's illness
is such that he can be treated as an outpatient and does not require
hospitalisation.
Moreover, according to the decision of the Federal Department of
Justice and Police of 21 November 1997, not contradicted by the
applicant, the company producing the medicaments has offered to ensure
that he would receive the required supplies in Sudan. Moreover, in his
home country he would be privileged in view of his education and his
personal and economic circumstances. The Commission notes in
particular that the applicant is envisaging founding a computer firm.
Finally, insofar as the Federal Department considered that the
applicant, who had Sudanese and Egyptian dual nationality, could also
be expected to reside in Egypt, the applicant has not provided any
substantiation for his claim that in view of the tensions between the
two countries he would not obtain a residence permit in Egypt.
As a result, the applicant has failed to show that upon his
departure from Switzerland he would face a real risk of being subjected
to treatment attaining the minimum level of severity so as to fall
within the scope 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 J.-C. GEUS
Secretary Acting President
to the Commission of the Commission
Full & Egal Universal Law Academy