CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 16 mars 1990

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                        AS TO THE ADMISSIBILITY OF                         Application No. 16279/90                       by A.M.                       against Switzerland             The European Commission of Human Rights sitting in private on 16 March 1990, the following members being present:                 MM. C.A. NØRGAARD, President                   S. TRECHSEL                   E. BUSUTTIL                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS                   J. CAMPINOS                   H. VANDENBERGHE              Mrs.   G.H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ                   L. LOUCAIDES                Mr.   J. RAYMOND, 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 2 March 1990 by A.M. against Switzerland and registered on 8 March 1990 under file No. 16279/90;           Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:   THE FACTS           The facts of the case, as submitted by the applicant, may be summarised as follows.           The applicant is a Zambian national born in 1938.   His current place of residence is unknown.   Before the commission he is represented by Messrs. D.H. Trachsel and Ch.   Klein, lawyers practising at Zurich, and Mr. H. Cantoni, priest of the Catholic parish (Pfarrei) St. Anton, at Zurich.           In August and September 1982 a Zurich bank received payment orders from a Zambian bank to issue, from its account at the Zurich bank, to four Zambian nationals upon presentation of their passports, various sums of money amounting to approximately 2.4 million SFr.   As the account only had 50,566.10 SFr on it and the orders appeared forged, the police were notified.           On 17 September 1982 the applicant left Zambia together with three other Zambian nationals and travelled via Zimbabwe and Kenya to Switzerland.   They entered Switzerland on 20 September 1982.           On the same day the four persons, who were lodging at an hotel, went to the Zurich bank concerned where they attempted to obtain, on the basis of passports issued on other names, the sum of approximately 2.4 million SFr, the sum appertaining to the applicant amounting to approximately 680,000 SFr.   The applicant and the other persons were then arrested and remanded in custody on suspicion inter alia of fraud.           In September 1982, during the ensuing criminal investigations, two officials of the Zambian "Office for Special Investigation on Trade and Economy" flew to Zurich to question the applicant and the other persons.   Subsequently, the Zambian authorities requested the four persons' informal extradition to Zambia.   In the applicant's submissions, during these investigations the four persons claimed that they had acted upon orders of a high Zambian official, Mr.   Z.G., who was Secretary General of the Governing State Party.           On 28 January 1983 the Zurich Public Prosecutor's Office (Staatsanwaltschaft) decided to prosecute the four persons concerned inter alia for lodging without payment (Zechprellerei), but to terminate (einstellen) the investigations in particular concerning the offence of fraud.   The Public Prosecutor's Office noted inter alia that all four persons claimed to have acted bona fide and not to have known that the payment orders were forged though the applicant and one other person claimed to have been hired to fetch the money for an unknown person.   The decision noted that their statements were contradictory whereas the Zambian authorities had proved uncooperative. The decision continues:   [Translation]   "The evident interest of the Zambian authorities in an early 'extradition' of the four accused (a respective inter-State treaty does not exist so that it was not possible to comply with the merely informal request of the Zambian authorities) and their persistent silence upon the request for letters rogatory by the Zurich District Attorney's Office leaves a certain room for the assumption that higher circles are involved in this matter, possibly even that political motives are given - as C.M. stated off the record."   [Original]   "Das offenkundige Interesse der zambischen Behörden an einer baldmöglichsten 'Auslieferung' der vier Angeschuldigten (ein diesbezügliches zwischenstaatliches Abkommen existiert indessen nicht, so dass dem bloss informellen Ersuchen der zambischen Behörden nicht stattgegeben werden konnte) und ihr beharrliches Schweigen auf das Rechtshilfeersuchen der Bezirksanwaltschaft Zürich lässt der Annahme, dass höhere Kreise in die Sache verwickelt sind, möglicherweise gar politische Motive dahinterstecken - wie von C.M. ausserhalb des Protokolls angetönt -, gewissen Raum.           The Public Prosecutor's Office also noted that the four persons hesitated to implicate themselves of having breached Zambian law.   The decision continues: "Evidently the accused fear at a later stage to be brought to justice in this respect" ("Offenbar fürchten die Angeschuldigten, zu einem späteren Zeitpunkt diesbezüglich zur Rechenschaft gezogen zu werden").           On 16 May 1983 the Zurich District Court (Bezirksgericht) convicted the applicant inter alia of lodging without payment and of contravening a regulation concerning the control of hotel guests, and conditionally sentenced him to five months' imprisonment of which 154 days' detention on remand were deducted.   He was also fined 50 SFr and ordered to leave Switzerland for three years.   The other persons were convicted on the same or similar grounds.           Subsequently, one of the other three Zambian nationals emigrated to Australia; a second married a Swiss citizen and resides in Switzerland; a third filed a request for asylum which is still pending.           On 21 February 1983, while still remanded in custody, the applicant applied for asylum.   He explained that the money which he had to fetch at the bank was evidently destined to overthrow the governing party and he referred in particular to the interest which two Zambian officials had displayed in his person.           On 22 February 1983 the Zurich Aliens' Police (Fremdenpolizei) questioned the applicant.   He thereby said that he came to Zurich upon orders of the "boss".   While he would have immediately returned to Zambia if the transaction had been successful, now the situation had changed.   He claimed to be a paying member of the United National Independent Party (UNIP) though he was not active.   He further stated that the two Zambian officials who had visited him had stated that upon his return to Zambia he would be arrested.           The Zurich Aliens' Police then confronted him with a statement made on 10 February 1983 according to which he wanted to return to Zambia, even if he expected problems there.   The applicant replied thereto that he had at that stage not known that the situation in Zambia had changed so seriously.           On 25 January 1984 the Zambian Ambassador in Rome transmitted to the Swiss Ambassador a Note Verbale in which he "requested that (the applicant), who is said to have expressed willingness to return to Zambia, be so repatriated...   In as far as the question of a travel document for him is concerned the Embassy would be in a position to issue one to him."           On 26 January 1984 the Swiss Embassy in Rome forwarded this Note Verbale to the Swiss Federal Police Office whereby it noted that a Zambian Embassy Official could come to Switzerland to hand the applicant a passport and an air ticket.           The applicant claims that according to a note of the Intelligence Service (Nachrichtendienst) of the Zurich Cantonal Police of 23 March 1984, in spring 1984 the Zambian Ambassador attempted to consult his and other case-files of the criminal investigations.   In spring 1984 the Zambian Ambassador intended to speak in Zurich with the applicant who apparently declined.   However, the Ambassador spoke with two other persons who had entered Switzerland with the applicant and told them that upon their return to Zambia they would only be prosecuted for forging passports.           On 16 August 1984 the applicant explained to the Federal Police Office that he would rather be dead than return to Zambia. While in Zambia he had been a member of the United Progress Party (UPP) which aimed at overthrowing the Government.   As such he had recruited new members and coordinated activities.   He had been arrested and remanded in custody during six months and he had been regularly beaten by the Zambian authorities.   He stated that he had not explained this at the previous interrogation as he had been traumatised by the two Zambian officials who had visited him.           On 11 August 1987 the Delegate for Refugees (Delegierter für das Flüchtlingswesen) dismissed the applicant's request for asylum as not appearing sufficiently credible.   Thus, the applicant had on 16 August 1984 mentioned for the first time that he had been remanded in custody in Zambia, and that he would suffer disadvantages upon his return on account of his political activities.   He had also not given credible reasons for this change of statement.           The Delegate further considered that the applicant's knowledge of the UPP was not always correct.   He had also waited four months after Zambian officials visited him in September 1982 until requesting asylum.   Finally, the Delegate noted that the applicant's lawyer had on 21 February 1983 written to the Zurich Aliens' Police, expressing the applicant's wish to return to Zambia.   This was confirmed by the Zambian Ambassador's Note Verbale of 25 January 1984.           On 13 August 1987 the applicant's lawyer applied to the Delegate for Refugees for access to the case-file.   The latter transmitted to him on 17 August 1987 photocopies of "the essential documents" ("die wesentlichen Unterlagen").           On 30 September 1987 the applicant filed an appeal (Beschwerde) against the Delegate's decision of 11 August 1987.   Therein, he explained inter alia that he had originally told the Swiss authorities that he was a member of the UNIP as any other statement would have brought him into difficulties upon his return to Zambia.   The applicant claimed that he had in general correctly explained the political situation in Zambia and also referred to the decision of the Public Prosecutor's Office of 28 January 1983 (quoted under I above).           The applicant emphasised that it was incorrect if on 25 January 1984 the Zambian Ambassador had written that the applicant wished to return to Zambia, since he had clearly stated the contrary on 22 February 1983 to the Zurich authorities.   Insofar as the Delegate for Refugees referred in his decision to a letter of 21 February 1983 the applicant pointed out that this letter had not been among the documents of the case-file transmitted to his lawyer on 17 August 1987 for which reason it should not be considered.   The applicant also referred to the interest shown by the Zambian authorities as indicating the political background of his case.           Finally, the applicant submitted that in Zambia unlimited detention without judicial guarantees was normal in view of the President's unfettered powers with regard to public security.           On 6 September 1989 the Federal Department of Justice and Police dismissed the applicant's appeal.           In its decision, which numbered ten pages, the Department noted various discrepancies (Ungereimtheiten) in the applicant's statements.   Thus, he had given different descriptions of his political activities in Zambia, and the reasons given for changing these statements were not convincing.   Moreover, the applicant himself had on 21 February 1983 expressed his wish to return to Zambia; the letter concerned had been shown to the applicant's lawyer during the appeal proceedings.   The Department noted that the applicant had expressed this wish after the two Zambian officials had visited him. Insofar as the applicant claimed that the Zambian authorities had personally concerned themselves with his person, the Department considered that this was not unusual in view of the large sum of money involved and the importance of the person concerned, Mr.   Z.G.   The Department also noted that the applicant had only in 1984 referred to detention to which he had been subjected in Zambia.           Finally, the Department saw no indication that upon his return to Zambia the applicant would be subjected to inhuman treatment contrary to Article 3 of the Convention.           On 12 September 1989 the Delegate for Refugees ordered the applicant to leave Switzerland by 15 December 1989.   Since then the applicant has been in hiding.           On 21 February 1990 the Zurich St.   Anton parish filed a request with the Delegate for Refugees for reconsideration (Wiedererwägung) of the applicant's expulsion.           By letter of 27 February 1990 the Anglican Archbishop of Central Africa at Gaborone in Botswana, the Most Reverend W.P. Khotso Makhulu, wrote in a letter to a Zurich asylum organisation with regard to the applicant:   "I am informed by reliable sources that prisoners, especially those charged on security grounds are tortured.   Given the interest shown by the Zambian authorities in your client, without formally applying for extradition, I would strongly advise that he does not entertain returning to Zambia under any circumstances.   It is alleged that there is a tendency for such people to disappear without a trace."   COMPLAINTS           The applicant complains of his imminent expulsion to Zambia where he will be subjected to treatment contrary to Article 3 of the Convention.   He submits that the Swiss authorities did not sufficiently consider the possibility of such treatment or the lack of judicial guarantees upon a person's detention in that State.           The applicant alleges that the attempted money transaction was organised by the second most important person in the Zambian Government, Mr.   Z.G., and the Swiss authorities failed to consider the difficulties which arose if he directed accusations against this person.   The applicant refers here to the considerations of the Zurich Public Prosecutor's Office as well as to the quite exceptional interest which the Zambian authorities displayed in his person.           The applicant, who states that he is considering suicide, finds it difficult to prove the danger which will await him in Zambia. He substantiates his various allegations with reference to a Report of Amnesty International and the letter of the Archbishop of Central Africa of 27 February 1990.   THE LAW   1.       The applicant complains that if he is expelled to Zambia he will be subjected to inhuman treatment contrary to Article 3 (Art. 3) of the Convention which states:              "No one shall be subjected to torture or to inhuman             or degrading treatment or punishment."           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 risk of treatment contrary to Article 3 (Art. 3) of the Convention in the receiving State (see No. 12102/86, Dec. 9.5.86, D.R. 47 p. 286).           In the present case, the Commission notes that the applicant is now no longer alleging, as he did before the Swiss authorities, that upon his return to Zambia he will suffer inhuman treatment contrary to Article 3 (Art. 3) of the Convention on account of his previous political activities, resulting at one stage in his detention in Zambia.           Rather, before the Commission the applicant is now alleging that, on account of the occurrences at the Zurich bank, and his explanations therefor before the Zurich police, namely that he had implicated an important person in the Zambian Government, he will suffer severe retributions upon his return to Zambia.   The applicant thereby also refers to reports about the situation in Zambia, mentioning some instances of ill-treatment.           The Commission considers that in its examination of a complaint under Article 3 (Art. 3) of the Convention it cannot solely consider the general situation in a country.   Rather, it falls to the applicant to substantiate such danger with regard to his own situation in that country.           As a result, the Commission also finds that the considerations of the Zurich Public Prosecutor's Office in its decision of 28 January 1983, which   were of a speculative nature, cannot serve to substantiate such a danger in a sufficiently concrete manner.           It is true that the applicant has emphasised the interest which the Zambian authorities displayed in his person.           However, the Commission considers that the attempts of the Zambian authorities to speak with him or to request his informal extradition to Zambia, which occurred between six and seven years ago, do not permit a conclusion as to the present situation.           Moreover, the Commission observes that a danger of treatment contrary to Article 3 (Art. 3) of the Convention does not directly transpire from this request for informal extradition, the visits of the Zambian officials in Zurich, or the Note Verbale of the Zambian Ambassador of 25 January 1984.           Finally, insofar as the applicant submits that the interest which the Zambian authorities displayed in his person was in itself quite exceptional, the Commission does not find it unreasonable if, as the Swiss authorities considered, the Zambian authorities expressed an interest in persons who were Zambian nationals and involved in a money transaction of 2.4 million SFr, possibly belonging to the Zambian Government.           The Commission finds therefore that the applicant has failed to show by means of concrete submissions concerning his situation that the treatment in Zambia would render his expulsion contrary to Article 3 (Art. 3) of the Convention.           Insofar as the applicant may be understood as also raising complaints under Article 2 (Art. 2) of the Convention the Commission finds no issue under this provision.           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           DECLARES THE APPLICATION INADMISSIBLE.     Deputy Secretary to the Commission        President of the Commission                    (J. RAYMOND)                         (C.A. NØRGAARD)