Europäischer Gerichtshof für Menschenrechte
Cour européenne des droits de l'homme
Corte europea dei diritti dell'uomo
European Court of Human Rights
AS TO THE ADMISSIBILITY OF
Application No. 35438/97
by Elyas CHAMMAS
against Switzerland
The European Commission of Human Rights sitting in private on
30 May 1997, the following members being present:
Mrs. G.H. THUNE, Acting President
Mr. S. TRECHSEL
Mrs. J. LIDDY
MM. 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
M. VILA AMIGÓ
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 18 March 1997 by
Elyas Chammas against Switzerland and registered on 25 March 1997 under
file No. 35438/97;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on 5 May
1997 and the observations in reply submitted by the applicant on
16 May 1997;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Syrian citizen born in 1965. He is currently
residing in Switzerland. Before the Commission he is represented by
Mr Kurt Sintzel, a lawyer practising in Zurich.
The facts of the case, as submitted by the parties, may be
summarised as follows.
The applicant left Syria on 17 October 1990 and travelled via
Italy to Switzerland where he requested asylum on 22 October 1990.
The applicant was questioned by the Swiss authorities on
23 October 1990 and 16 January 1992. He submitted, inter alia, that
he was an Aramean Christian and a member of the right-wing Baath party
which ruled in Iraq. In view thereof he had been tortured in Syria and
detained for eight months in 1985. Subsequently, he had occasionally
been arrested for a few hours and questioned. When his party friends
had been arrested in 1990, he had fled Syria.
The applicant's request for asylum was dismissed on 9 March 1992
by the Federal Office for Refugees (Bundesamt für Flüchtlinge) which
expressed doubts as to the credibility of the applicant's statements.
Thus, the applicant had been unable sufficiently to describe the
political aims of the Baath party. Moreover, it did not appear
credible that the applicant, as a member of this party, had been
released from detention after only eight months. The Federal Office
further noted that the applicant had been able to leave Syria with a
passport, and indeed in 1990 had spent holidays in Italy and Jordan.
The Office was not convinced by the applicant's statement that he had
obtained a passport by means of bribery.
The applicant filed an appeal on 9 April 1992 which was dismissed
by the Swiss Asylum Appeals Commission (Schweizerische Asylrekurskom-
mission) on 13 November 1996, the decision being served on 26 November.
The Appeals Commission found that the applicant had failed to comment
sufficiently on the points raised by the Federal Office for Refugees.
On 28 November 1996 the Federal Office for Refugees ordered the
applicant to leave Switzerland by 28 February 1997.
On 17 January 1997 the applicant's lawyer filed a request with
the Swiss Asylum Appeals Commission for the reopening of its decision
of 13 November 1996. The lawyer included a letter of the Swiss Section
of Amnesty International, dated 17 September 1996 and addressed to one
Mr R.M. of the Counselling Service for Asylum Seekers (Beratungsstelle
für Asylsuchende). The letter read as follows:
Translation
"Dear Mr M.
We would like to state the following as to the situation of
Syrian asylum-seekers who are returning to Syria. (Particular
attention shall be given to the situation of Syrian-Orthodox Syrians.)
Risks upon Return of Asylum-Seekers to Syria
Syrians, who are seeking political asylum, are automatically
regarded as opponents of the régime. The mere fact that they have left
the country with the aim of seeking asylum in another country is
considered a sign of opposition against the Syrian Government. If the
asylum-seeker has been or is associated with a prohibited political
organisation, he risks detention and torture upon his return. It
transpires from recent reports that torture is still systematically
applied in Syria.
In the case of former detainees the fact that they have sought
asylum is considered proof of continuing prohibited activity for the
opposition, leading to a danger of reprisals.
Syrians are prohibited from leaving the country without
permission. The Government refuses to grant authorisations to supposed
opponents of the régime. Those who wish to leave Syria to seek asylum
in another country are often forced to suppress their identity or to
have forged documents prepared.
Asylum-seekers who leave Syria unlawfully, i.e. without
permission or with forged documents, normally risk arrest and
detention. If an asylum-seeker whose request is refused is sent back
to Syria, he risks a prison sentence between one month and two years on
account of forging documents or of false identity (S. 452 of the Syrian
Criminal Code). According to S. 427 of the Criminal Code the
punishment can be raised. Thus, the punishment can amount to seven
years' forced labour on account of falsifying the seal of Syrian
authorities. The falsification of seals of public authorities is
punished with imprisonment of one to three years (S. 428 of the Syrian
Criminal Code).
If the returning asylum-seeker is accompanied by security
officers of the expelling State, his request for asylum will hardly
remain unnoticed by the Syrian authorities. Asylum-seekers who have
spent some time abroad must upon return to Syria expect with certainty
that they shall be questioned extensively by the Syrian security
authorities. We would add that the Syrian Secret Service has as its
duty the surveillance of Syrian communities abroad. The Syrian
authorities could therefore already have been made aware of the request
for asylum of returning persons.
The situation of Syrian-Orthodox Christians
Amnesty International is not aware of any documented cases in
which Syrian nationals of Christian faith have been subjected to
political persecution merely on account of their beliefs.
Christians were persecuted mostly because they were also active
in the political opposition.
According to unconfirmed reports, Christians in Syria suffer
disadvantages and are discriminated against, but these measures do not
attain the level of severity of human rights violations.
As regards the return of Syrian-Orthodox Christians whose
requests have been refused, we would refer to the above.
Cases of returning asylum-seekers
We have only little information as to the destiny of asylum-
seekers who have returned to Syria. However, in the past years we have
registered numerous cases of unsuccessful asylum-seekers who, upon
their return to Syria, were arrested and detained. According to our
experience, members of prohibited movements will often have to expect
persecution. We would mention some cases among many:
On 20 October 1995 an asylum-seeker was expelled from Switzerland
to Syria. Witnesses report that he was arrested immediately upon his
arrival at Damascus airport. His family has since (December 1995) not
received any signs of life from him. Amnesty fears that he is in
danger of torture and of disappearing.
In 1995 three Syrian-Kurdish asylum-seekers were expelled from
Austria to Syria. According to certain reports, they were arrested
immediately after their arrival in Syria. In December 1995 there was
no information as to their whereabouts.
On 5 March 1996 H.K. was expelled by the Romanian authorities to
Syria. He was arrested upon his arrival in Syria. According to
certain reports, he has repeatedly been tortured.
Sincerely,
Amnesty International
Swiss Section
R.M.
Refugee Team"
In his request for reopening of the proceedings the applicant's
lawyer pointed out that "only in December of last year had (the
applicant) obtained the Report of Amnesty International". He submitted
that the applicant would be treated as mentioned in the report.
On 24 February 1997 the Swiss Asylum Appeals Commission rejected
the applicant's request for reopening of the proceedings. The decision
stated, inter alia:
Translation
"In the present case the applicant has completely failed
substantially to explain why it was not possible for him to
obtain knowledge of the report of Amnesty International during
the regular proceedings. It is true that according to his
submissions the facts at issue are derived from a report of
Amnesty International of 17 September 1996 (i.e. before the
decision of the Asylum Appeals Commission was pronounced on
13 November 1996). However, he does not explain at all why it
was impossible, or could not be expected from him, to obtain the
report earlier on. The mere fact that he has received the report
only after the decision of the Asylum Appeals Commission cannot
in itself suffice in view of the facts explained above."
As to the substance of the applicant's request the decision
stated:
"It can nevertheless be stated that the applicant's submissions
would lead to the conclusion that in principle no more expulsions
would be possible to Syria. In this respect it must be said that
the Asylum Appeals Commission relies for its determination of the
situation on various documentations, including as a rule
publications of Amnesty International. Finally it should be
added that the Swiss Federal Council has so far not contemplated
provisionally accepting groups of Syrian nationals in
Switzerland. The Asylum Appeals Commission has equally not
reached an analogous conclusion in its constant consideration of
the situation concerning individual expulsions to Syria."
According to a News Release of Amnesty International of 25 March
1997, there has been a growing trend of improvements in human rights
in Syria over the last few years. Thus, approximately 2,000 political
prisoners have been released since 1995, including prisoners of
conscience. There has also been a significant decrease in arbitrary
political arrests, detention and torture.
COMPLAINTS
1. The applicant complains under Article 3 of the Convention of his
expulsion to Syria. He cannot reside in any other European country.
Upon his return to Syria he would risk detention and torture or inhuman
treatment. The applicant refers expressly to the report of Amnesty
International of 17 September 1996.
2. The applicant also complains under Article 6 of the Convention
of the formalistic manner in which the Asylum Appeals Commission dealt
with his request for reopening of the proceedings. After his appeal
in 1992, the proceedings lasted four years until the Asylum Appeals
Commission gave its decision. During this time he could not be
expected to undertake research with regard to a possible negative
decision. The applicant also complains that he could not properly
explain himself before the Asylum Appeals Commission.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 18 March 1997 and registered
on 25 March 1997.
Rule 36 of the Commission's Rules of Procedure was applied on
24 March 1997 by the Acting President, and on 17 April 1997 by the
Commission.
On 17 April 1997 the Commission also decided to communicate the
application to the respondent Government.
The Government's written observations were submitted on 5 May
1997. The applicant replied on 16 May 1997.
THE LAW
1. The applicant complains under Article 3 (Art. 3) of the
Convention of his expulsion to Syria. He cannot reside in any other
European country. Upon his return to Syria he would risk detention and
torture or inhuman treatment. The applicant refers expressly to the
report of Amnesty International of 17 September 1996.
Article 3 (Art. 3) of the Convention states:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
a) The Government contend that the applicant has not complied with
the requirement under Article 26 (Art. 26) of the Convention as to the
exhaustion of domestic remedies. It transpires from the decision of
the Asylum Appeals Commission of 24 February 1997 that the applicant
had not explained why he could not have obtained knowledge of the
Report of Amnesty International during the regular proceedings. Thus,
the facts which he invoked could no longer be qualified as being new,
and a request for reopening of the proceedings was therefore
inadmissible. The Government point out that insofar as the Asylum
Appeals Commission nevertheless dealt with the letter of Amnesty
International, it did not do so in a sufficiently concrete manner in
respect of his personal situation.
The applicant submits that the Asylum Appeals Commission was too
formalistic when it rejected his request for reopening of the
proceedings. In fact, it transpires from the decision of 24 February
1997 that the Asylum Appeals Commission did not share his views as to
his expulsion to Syria. Thus, the considerations of the Asylum Appeals
Commission constitute an obiter dictum amounting to a decision on the
merits.
Under Article 26 (Art. 26) of the Convention "the Commission may
only deal with the matter after all domestic remedies have been
exhausted, according to the generally recognised rules of international
law".
In the present case, the Swiss Asylum Appeals Commission
dismissed the applicant's appeal on 13 November 1996. Subsequently,
the applicant requested, with reference to the letter of Amnesty
International, the reopening of the proceedings.
According to the Commission's case-law, if in such proceedings
in Switzerland new facts are obtained after the final decision of the
Asylum Appeals Commission, a request for reopening of the proceedings
may be considered an effective remedy (see No. 18079/91, Dec. 4.12.91,
D.R. 72, p. 263). Nevertheless, there is no exhaustion of domestic
remedies where a remedy is not admitted because of a procedural mistake
(see No. 6878/75, Dec. 6.10.76, D.R. 6, p. 79).
It is true that in the present case the applicant's request for
reopening of the proceedings was declared inadmissible by the Asylum
Appeals Commission on 24 February 1997. Thus, the applicant had failed
to explain why he had not been able to submit the letter of Amnesty
International already during the regular proceedings.
However, the Commission notes the applicant's explanations before
the Asylum Appeals Commission according to which he had only obtained
the letter of Amnesty International after the final decision of
13 November 1996. There is furthermore no indication that the
applicant had in fact been in possession of the letter before
13 November 1996 and that he had purposely withheld it during the
regular proceedings before the Asylum Appeals Commission.
In any event, in its decision of 24 February 1997 the Asylum
Appeals Commission, after explaining why the request was inadmissible,
in fact proceeded to discuss, albeit briefly, the merits of the
applicant's request.
The applicant's complaints cannot therefore be rejected under
Article 26 (Art. 26) of the Convention for non-exhaustion of domestic
remedies.
b) The Government further contend that the application is manifestly
ill-founded. Doubts arise as to the credibility of the applicant's
submissions. It is recalled that according to the decision of the
Asylum Appeals Commission of 13 November 1996, the applicant had only
insufficiently demonstrated his affiliation in Syria to the Baath
party. Furthermore, had he really been punished for his support of
that party, he would have been subjected to a more severe sanction than
eight months' imprisonment. It also did not appear credible if he
stated that despite his persecution he suffered no disadvantages from
1985 to 1990 when he lived in Syria, or that he was able to leave Syria
via Damascus airport with all the necessary documents, particularly as
the security services are very strict at that airport.
The Government also point out that in the same year when the
applicant left Syria for Switzerland he was able twice to travel
abroad, once to Jordan and once to Italy. This would hardly have been
possible for a person allegedly persecuted by the authorities.
Moreover, it is recalled that the letter of Amnesty International only
envisaged difficulties upon the return of asylum-seekers who left Syria
unlawfully. Thus, the dangers mentioned therein, if any, would not
apply to the applicant who was able to leave the country lawfully.
Finally, the Government refer to the situation in Sweden, Germany
and the Netherlands. These countries regularly send Syrian asylum-
seekers back to Syria without any difficulties having become apparent.
The applicant contends that his expulsion to Syria would breach
Article 3 (Art. 3) of the Convention. In his case, the Swiss
authorities insufficiently examined the particular circumstances in
Syria. Thus, the applicant knew about the Baath party as much as one
generally knows about a party programme. Personal reasons led him to
join a wing of the Baath party. The fact that he was released after
eight months of imprisonment is not extraordinary. In the following
years the applicant was placed under surveillance, but he was not
persecuted, as the situation had calmed down in the country, and there
was a more relaxed atmosphere. For this reason, he could travel twice
abroad. In 1990, when the situation in Syria deteriorated and his
friend was arrested, he could leave the country as he obtained a
passport with the help of his father and by means of bribery.
The applicant submits that while in Syria he was detained for
eight months, and tortured. In view of the situation there today, he
must expect, upon his return, renewed persecution contrary to Article 3
(Art. 3) of the Convention. Complete proof is not possible. In his
case, there is a concrete, serious and substantial danger of
persecution.
The applicant recalls that the letter of Amnesty International
points out the risks for returning Syrian asylum-seekers, such as the
applicant. These persons are automatically regarded as opponents of
the régime and, therefore, risk torture. The mere fact that they left
the country is regarded as a form of resistance. It may be true that
the sanctions mentioned in the Report of Amnesty International in case
of unlawful departures from Syria do not apply to the applicant who
left Syria with a passport. However, if he has to return to Syria, he
will have to obtain the necessary documents for his return. The Syrian
authorities will thus certainly become aware of him, and he can
therefore no longer enter his home country as a normal citizen.
The applicant contests the Government's submissions according to
which various countries have sent Syrian asylum-seekers back to Syria
without any problems. These submissions contradict the letter of
Amnesty International where reference is made to persons who in the
past years were arrested at Damascus airport upon their return to
Syria. Some of them have completely disappeared. These are serious
circumstances which can also affect the applicant.
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, paras. 72 ff).
However, 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 applicant.
The Commission notes at the outset that the applicant has not
provided any substantiation whatsoever for his claims that in view of
his support of the Baath party he had been tortured and detained on
remand for eight months, and that for this reason he would again risk
treatment contrary to Article 3 (Art. 3) of the Convention upon his
return to Syria. In this context, the Commission further notes that
in their decisions the Swiss authorities expressed doubts as to the
credibility of the applicant's statements.
The Commission has next examined the letter of Amnesty
International of 17 September 1996 which describes the situation of
Syrian asylum-seekers who are returning to Syria. It is stated therein
that the mere fact that these persons have left the country with the
aim of seeking asylum in another country is considered a sign of
opposition against the Syrian Government.
However, this letter then points out that a concrete risk of
arrest and detention arises for asylum-seekers who have left Syria
unlawfully. In the present case, the Commission need not decide
whether the applicant, who allegedly obtained a forged passport to
travel to Switzerland, left Syria unlawfully in 1990. It suffices to
point out that in the same year the applicant was able twice to travel
as a regular tourist to other countries, namely Jordan and Italy.
Insofar as the applicant refers to the concrete cases of ill-
treatment mentioned in the letter of Amnesty International, it is not
stated therein whether these cases concerned persons who had left Syria
unlawfully. The Commission further notes the Government's submissions
according to which Syrian asylum-seekers have been returned from
Sweden, the Netherlands and Germany to Syria without any difficulties.
In this respect the Commission also recalls its decision in the case
of H. v. Sweden where it considered that no real risk of treatment
contrary to Article 3 (Art. 3) of the Convention had been established
in the case of the expulsion of a Syrian asylum-seeker from Sweden to
Syria (see No. 22408/93, Dec. 5.9.94, D.R. 79-A, p. 85).
Finally, the Commission notes the News Release of Amnesty
International of 25 March 1997 according to which there has been a
growing trend of improvements in human rights in Syria over the last
few years.
As a result, the applicant has failed to show that upon his
return to Syria he 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 applicant also complains of the formalistic manner in which
the Asylum Appeals Commission dealt with his request for reopening of
the proceedings. After his appeal in 1992, the proceedings lasted four
years until the Asylum Appeals Commission gave its decision. The
applicant also complains that he could not properly explain himself
before the Asylum Appeals Commission.
The Commission has 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 applicant was "lawfully resident"
in Switzerland within the meaning of this provision, the Commission
finds that the applicant's complaints do not disclose any appearance
of a violation of the rights set out in Article 1 para. 1 of Protocol
No. 7 (P1 1). In this respect 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