Wilson v. Germany



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