CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 29 mai 1998

.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. 41356/98                       by Sewa and Poovi WILSON                       against Germany          The European Commission of Human Rights sitting in private on 29 May 1998, the following members being present:              MM     S. TRECHSEL, President                  J.-C. GEUS                  M.P. PELLONPÄÄ                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H. DANELIUS            Mrs    G.H. THUNE            MM     F. MARTINEZ                  C.L. ROZAKIS            Mrs    J. LIDDY            MM     L. LOUCAIDES                  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     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 20 March 1998 by Sewa and Poovi WILSON against Germany and registered on 25 May 1998 under file No. 41356/98;          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 applicants, born in 1958 and 1960, respectively, are citizens of Togo.   They are a married couple and currently stay in Steinfeld. Before the Commission, they are represented by Ms. B. Ginsberg, a lawyer practising in Köln.        The facts of the case, as submitted by the applicants, may be summarised as follows.   1.    The first applicant left Togo in July 1992.   He entered the territory of Germany in August 1992 and applied for asylum.        On 31 August 1993 he was heard by the Federal Office for Refugees (Bundesamt für die Anerkennung ausländischer Flüchtlinge) in the context of his asylum proceedings.   He stated that in Togo he had been a member of the opposition party PSP (Parti Socialiste Panafricain). On 24 July 1992, following the assassination of the PSP's leader Tavio Amorin, he had organised a demonstration in Lomé. The barricades raised by the demonstrators had been attacked by the army and he had thereupon fled to Ghana.        On 8 October 1993 the Federal Office for Refugees dismissed the first applicant's request for asylum and ordered the applicant to leave Germany.        On 13 June 1997 the Oldenburg Administrative Court (Verwaltungsgericht) dismissed the first applicant's action challenging the refusal of asylum and the expulsion. The Court considered that, having regard to major contradictions, his statements regarding his arrest following his alleged involvement in organising a demonstration on 24 July 1992 were not credible. Furthermore, the Court found that the first applicant's membership of the opposition party PSP was no reason to fear political persecution on his return to Togo, as only high representatives of these parties or extremist opposition parties had to fear persecution on account of their previous political activities. Furthermore, the fact of having applied for asylum in Germany and the first applicant's political activities did not expose the first applicant to a real risk of persecution upon his return to Togo.   In these respects, the Court, on the basis of reports provided by the German Ministry for Foreign Affairs and the UN High Commissioner for Refugees, considered in detail the situation in Togo.        On 30 July 1997 the Lower Saxony Administrative Court of Appeal (Oberverwaltungsgericht) decided not to admit the applicant's appeal against the Oldenburg Administrative Court's decision.   2.    In July 1993 the second applicant left Togo and entered the territory of Germany.   She also applied for asylum.        On 4 August 1993 she was heard by the Federal Office for Refugees in the context of her asylum proceedings.   She stated that policemen had repeatedly come to her house in search of her husband.   She had left their child with her parents.        On 8 October 1993 the Federal Office for Refugees dismissed the second applicant's request for asylum and ordered her to leave Germany.        On 13 June 1997 the Oldenburg Administrative Court dismissed the second applicant's action to challenge the Federal Office's decision. As regards the second applicant's argument, raised in the course of the court proceedings, that she risked persecution on account of her political activities in Germany, the Court considered that these activities were not of a nature to make political persecution on her return to Togo probable. In reasoning its decision, the Court referred to reports provided by the German Ministry for Foreign Affairs and the UN High Commissioner for Refugees.        On 4 August 1997 the Lower Saxony Administrative Court of Appeal decided not to admit the applicant's appeal against the Oldenburg Administrative Court's decision.   3.    On 18 September 1997 the Federal Office for Refugees dismissed the applicants' renewed application for asylum (Asylfolgeantrag), which concerned further submissions regarding their political activities in Germany, on the ground that there was no relevant new evidence.        On 22 October 1997 the Oldenburg Administrative Court dismissed the applicants' request for interim measures against the expulsion. The Court observed that part of the issues raised by the applicants had been finally decided in the context of the first set of asylum and expulsion proceedings.   It further found that the new evidence submitted by the applicants, i.e. an article in a local newspaper relating to the first applicant's political activities in Togolese opposition parties in Germany and his expulsion proceedings, did not disclose a real risk of persecution upon their return to Togo and could not, therefore, justify an interim measure.        On 10 December 1997 the Federal Constitutional Court (Bundesverfassungsgericht) refused to admit the applicants' constitutional complaint.        On 7 January, 23 January and 16 March 1998 the Oldenburg Administrative Court decided respectively not to modify its previous decisions. The Court considered that the newspaper articles concerning the applicants' engagement in local Togolese opposition groups and other documents submitted by the applicants in each of these proceedings did not disclose any new evidence proving a sufficient danger for the applicants upon their return to Togo.     COMPLAINTS        The applicants complain that upon their return to Togo they will be subjected to inhuman treatment and torture contrary to Article 3 of the Convention.     PROCEDURE BEFORE THE COMMISSION        The application was introduced on 20 March 1998.        On 9 April 1998 the President of the Commission refused the applicant's request to stop their expulsion during the Commission proceedings, pursuant to Rule 36 of the Commission's Rules of Procedure.        In their submissions of 25 April 1998, the applicants renewed their request under Rule 36.   THE LAW        The applicants complain that upon their return to Togo they will be subjected to inhuman treatment and torture contrary to Article 3 (Art. 3) of the Convention.        This provision states:        "No one shall be subjected to torture or 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 of Judgments and Decisions 1996-V, p. 1831, paras. 72 et seq.).        Nevertheless, 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 applicants.        Even assuming compliance with Article 26 (Art. 26) of the Convention as regards the submissions raised in the first set of domestic proceedings, the Commission notes that the German authorities did not find the first applicant's allegations about his activities before he left Togo credible.   Moreover, having regard to reports on the human rights situation in Togo, they considered that the fact of having applied for asylum and the political activities pursued by the applicants in Germany would not entail persecution in Togo.        The Commission, having regard to all the material before it, considers that the applicants have failed to show that upon their return to Togo they would face a real risk of being subjected to treatment contrary to Article 3 (Art. 3) of the Convention. It follows that there is no appearance of a violation 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                         S. TRECHSEL          Secretary                            President       to the Commission                    of the Commission