AS TO THE ADMISSIBILITY OF
Application No. 21126/93
by Ahmet, Besey, Hasan and Fikret YUEKSEL
against Switzerland
The European Commission of Human Rights sitting in private on
15 January 1993, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
Mr. M. DE SALVIA, Deputy 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 11 December 1992
by Ahmet, Besey, Hasan and Fikret YUEKSEL against Switzerland and
registered on 5 January 1993 under file No. 21126/93;
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 applicants, may be
summarised as follows:
The applicants are Turkish citizens of Kurdish origin. The first
and second applicants are husband and wife, the third and fourth
applicants are their children. The applicants were born in 1962, 1963,
1982 and 1986, respectively. Although residing in Switzerland, the
applicants have at present no permanent domicile. Before the
Commission they are represented by Mr. A. Rüst, a collaborator at the
Legal Advice Office for Asylum Seekers (Rechtsberatungsstelle für
Asylsuchende) in St. Gallen in Switzerland.
I.
As from 1976 the first applicant, while residing at Socag in
Turkey, supported the illegal marxist-leninist TKP-ML party. As a
result, he was reported to the authorities. In November 1988 he was
twice arrested by the police and detained for five and three days,
respectively, whereupon he was unconditionally released. While
detained the first applicant was interrogated daily during one to two
hours and also ill-treated.
Fearing further arrests the first applicant went to Istanbul in
the beginning of 1989. In the company where he worked he heard that
he was wanted by the police (gesucht) in Istanbul, in particular on 20
December 1991. This was probably because of his previous detention.
Thereupon, he decided to leave Turkey.
Various other family members have left Turkey and have been
granted asylum in Europe, for instance the husband of one of his
sisters and two distant relatives who both reside in France, and the
brother-in-law of another sister who resides in Switzerland.
II.
The first applicant left Turkey on 4 January 1990 and entered
Switzerland on 8 January 1990. The other applicants entered
Switzerland on 8 September 1990. All applicants applied for asylum.
When filing his request the first applicant was questioned as to
his motives. He stated that he feared persecution upon his return to
Turkey. He claimed that he had helped supporters of the TKP party
until 1980. He had left Turkey as he was suffering pressure on account
of his relatives who had been wanted by the authorities since 1988.
The second applicant explained that she was applying for asylum in
order not to be separated from her husband.
On 5 March 1990 the first applicant was questioned by the
competent authorities of the Canton of St. Gallen as to his motives for
applying for asylum. He stated that he was requesting asylum not on
account of his relatives, but because of his support of the TKP-ML
party. He claimed that he had also assisted the TKP-ML party after
1980, and that when previously questioned he had said that his
relatives had been wanted since 1980.
The first applicant further pointed out that he had supported
other members of the TKP-ML party in 1988 whenever they came to the
village. When questioned he stated that they stayed in the village
at night for approximately two hours. Subsequently he stated that they
spent the night with him.
Finally, the applicant was asked whether he wanted to add
anything to his statements. The applicant thereupon explained that
upon his first detention his wife had also been present at the police
station for one hour.
On 10 October 1990 the Delegate for Refugees (Delegierter für das
Flüchtlingswesen) dismissed the first applicant's request for asylum.
The decision considered in particular that on account of
contradictions the applicant's statements did not appear credible.
Thus, when filing his request for asylum he had stated that he had
assisted the TKP-ML party until 1980, whereas before the cantonal
authorities he had stated that he had helped this party until 1988.
Moreover, in respect of his relatives he had first mentioned the year
1988, and later 1980. The decision noted further discrepancies as to
the support which he had allegedly offered other members of the TKP-ML
party, in particular as to whether they had only stayed two hours in
the village, or had spent the night with him.
The appeal of the first and second applicants was dismissed by
the Asylum Appeals Commission (Asylrekurskommission) on 19 August 1992.
The decision upheld the grounds given by the Delegate. Insofar
as the applicants maintained that the contradictions resulted from an
incorrect translation when being questioned, the Appeals Commission
noted that when questioned on 5 March 1990 by the cantonal authorities
the applicant had been offered the possibility to provide further
information as to his allegations. However, he had failed further to
substantiate the alleged fears of persecution upon his return to
Turkey.
On 31 August 1992 the applicants were ordered to leave
Switzerland before 30 November 1992.
On 28 November 1992 the applicants filed a request for the
reopening of the previous proceedings (Revision).
COMPLAINTS
The applicants complain of the first applicant's impending
expulsion to Turkey. They allege that upon his return he will be
subjected to detention and torture contrary to Article 3 of the
Convention. The applicants allege that the first applicant was
incorrectly questioned by the Swiss authorities; they complain in
particular of a deceiving leading question (irreführende
Suggestivfrage).
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 11 December 1992 and registered
on 5 January 1993.
On 21 December 1992 the President decided not to apply Rule 36
of the Commission's Rules of Procedure.
THE LAW
The applicants complain of the first applicant's impending
expulsion to Turkey. They allege that upon his return he will be
subjected to detention and torture contrary to Article 3 (Art. 3) of
the Convention.
The Commission has constantly held that the right of an alien to
reside in a particular country is not as such guaranteed by the
Convention. However, expulsion may in exceptional circumstances
involve a violation of the Convention, for example where there is a
serious fear of treatment contrary to Article 3 (Art. 3) of the
Convention in the country to which the person is to be expelled (see
No. 12102/86, Dec. 9.5.86, D.R. 47 p. 286 with further references;
mutatis mutandis Eur. Court H.R., Soering judgment of 7 July 1989,
Series A no. 161, p. 32 et seq., para. 81 et seq.).
In the present case the Commission observes that the Swiss
authorities found various inconsistencies in the first applicant's
statements. For instance, he first stated that he had assisted the
TKP-ML party until 1980, whereas before the cantonal authorities he
stated that he had helped this party until 1988. There were also
discrepancies concerning his relatives, and the support which he had
afforded other members of the TKP-ML party. The applicant was made
aware of these inconsistencies and had the opportunity on 5 March 1990
to provide further information thereupon. However, he did not do so.
As a result, the Commission considers that the first applicant's
submissions raise doubts as to their accuracy.
Furthermore, the first applicant has not provided any concrete
evidence, for instance by means of a warrant of arrest, that he is
being wanted by the authorities and that upon his return to Turkey he
will be remanded in custody.
Moreover, the Commission notes that the alleged detention on
remand and ill-treatment of the first applicant occurred in November
1988. The first applicant has not alleged that subsequently, while
still residing in Istanbul for over a year until 4 January 1990, he was
subjected to further ill-treatment. In this connection the Commission
further notes that in November 1988 the first applicant was released
unconditionally from detention on remand.
The Commission finds therefore that the first applicant has
failed to show that he would face a real risk of being subjected to
treatment contrary to Article 3 (Art. 3) of the Convention if expelled
to Turkey.
The application must therefore be rejected as being manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
Deputy Secretary to the Commission President of the Commission
(M. de Salvia) (C.A. Nørgaard)
Full & Egal Universal Law Academy