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. 37719/97
by S. Z.
against Switzerland
The European Commission of Human Rights sitting in private on
18 September 1997, the following members being present:
Mrs. G.H. THUNE, Acting President
Mr. S. TRECHSEL
Mrs. J. LIDDY
MM. E. BUSUTTIL
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
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 14 October 1995
by S. Z. against Switzerland and registered on 10 September 1997 under
file No. 37719/97;
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 is a citizen of Yugoslavia of Serb ethnic origin
born in 1964. An electrical engineer by profession, he resides in
Heiden in Switzerland in a home for persons seeking asylum.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant left Yugoslavia and entered Switzerland on
28 August 1991. On 6 September 1991 he filed a request for asylum in
respect of which he was questioned by the authorities on 10 and
30 September 1991. The applicant submitted in particular that he had
not complied with an order to appear before the military authorities
to undertake military service and that he had fled the country instead.
On 15 December 1992 the Federal Office for Refugees (Bundesamt
für Flüchtlinge) dismissed the applicant's request. The Federal Office
considered that the applicant had not been able to substantiate his
fears in respect of his return to Yugoslavia. In particular it
transpired that the military order submitted by the applicant was
clearly falsified. Moreover, when entering Switzerland he had at first
hesitated to apply for asylum, and had only done so when he was unable
to find employment. The applicant had also submitted to the Swiss
authorities, on one occasion, that he had left Yugoslavia as he had
participated in a certain demonstration, and on another, that he had
worked as an assistant at Nis University until his departure.
The applicant's appeal was dismissed by the Swiss Asylum Appeals
Commission (Schweizerische Asylrekurskommission) on 28 October 1994.
It considered that even laymen could see that the stamp (Stempel) used
for the military order was falsified, possibly by means of a potato.
The Federal Office informed the applicant on 2 November 1994 that
he had to leave Switzerland before 15 December 1994. By letter of
20 August 1997 he was requested to leave Switzerland before
30 September 1997.
COMPLAINTS
The applicant complains vehemently of the situation at the house
where he is currently living which he calls a concentration camp. He
complains of the staff of the home and of inhuman treatment by the
local police.
The applicant further contests the decision of the Swiss Asylum
Appeals Commission which in his view is incorrect. He complains of the
unfairness of the proceedings.
THE LAW
1. The applicant complains of the manner in which the Swiss
authorities are treating him at the house where he is currently
residing.
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."
However, 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 applicant failed to raise his complaint
before the Swiss authorities, in particular in last resort by means of
a public law appeal before the Federal Court. He has, therefore, not
exhausted the remedies available to him under Swiss law.
As a result, this part of the application must be rejected under
Article 27 para. 3 (Art. 27-3) of the Convention.
2. The applicant may be understood as complaining of his imminent
expulsion to Yugoslavia.
The Commission has also examined this complaint under Article 3
(Art. 3) of the Convention.
Under Article 26 (Art. 26) of the Convention the Commission "may
only deal with the matter... within a period of six months from the
date on which the final decision was taken".
In the present case, the Swiss Asylum Appeals Commission
dismissed the applicant's appeal on 28 October 1994, whereas the
present application was introduced on 14 October 1995, that is, more
than six months after the date of this decision. This part of the
application has, therefore, been introduced out of time and must be
rejected under Article 27 para. 3 (Art. 27-3) of the Convention.
The complaints would in any event also be inadmissible for the
following reasons.
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, 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, 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. However, it notes that
before the Commission the applicant has not provided any substantiation
of his fears concerning ill-treatment upon his return to Yugoslavia.
The Commission further notes the domestic authorities' conclusion
according to which the military order, which the applicant submitted
in the domestic proceedings as substantiation for his allegations,
clearly constituted a falsification.
As a result, the applicant has failed to show that upon his
return to Yugoslavia 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, also manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. The applicant may also be understood as complaining of the
alleged unfairness of the proceedings.
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 (P7 1).
The remainder of 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.
H.C. KRÜGER G.H. THUNE
Secretary Acting President
to the Commission of the Commission