S.A. and Others v. Germany

AS TO THE ADMISSIBILITY OF

Application No. 37669/97

by S.A. and 9 Others

against Germany

The European Commission of Human Rights sitting in private on 30 October 1998, the following members being present:

MM S. TRECHSEL, President

J.-C. GEUS

M.P. PELLONPÄÄ

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

Mrs G.H. THUNE

MM F. MARTINEZ

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

I. BÉKÉS

D. ŠVÁBY

G. RESS

A. PERENIČ

C. BÎRSAN

P. LORENZEN

E. BIELIŪNAS

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 25 June 1997 by S.A. and 9 others against Germany and registered on 5 September 1997 under file No. 37669/97;

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 applicants are members of a Turkish family of Kurdish ethnic origin. The first and second applicants, A.A. and S.A., are husband and wife, born in 1960 and 1964 respectively. The other applicants are the spouses' 8 children, born in 1980, 1982, 1984, 1985, 1990, 1991, 1992 and 1993. When lodging their application they lived in Hamm.

In the proceedings before the Commission they are represented by Mr Michael von Glahn and Mrs Wiltrud von Glahn, lawyers practising in Hamm.

The facts of the case, as submitted by the applicants, may be summarised as follows.

On 5 October 1993 the second applicant and five of her children arrived in Germany. The first applicant and his child born in 1982 followed on 26 November 1993.

On 5 October and 8 December 1993 the applicants applied for political asylum. They submitted that they were persecuted for political reasons by the Turkish State and feared to be killed on account of the first applicant's participation in the activities of the PKK (Kurdish Workers Party - an armed separatist movement). They left their village near Idil in the province of Mardin and arrived hidden in a lorry in Germany. The second applicant submitted that as a supporter of the PKK party she assisted this organisation, in particular by providing food. In 1993 the Turkish security forces intensified the pressure on the inhabitants of their village. Four times the police searched their house and questioned about the first applicant. The village was bombed and their house destroyed.

In May 1994 the remaining two applicants, the spouses' daughters born in 1980 and 1985, arrived by plane in Germany.

On 10 January and 18 May 1994 the Federal Office for Refugees (Bundesamt für die Anerkennung ausländischer Flüchtlinge) dismissed the requests for asylum and ordered the applicants to leave Germany voluntarily, warning them that they would otherwise be expelled.

The Federal Office found that the applicants had failed to show any persecution reaching the relevant level of severity requiring that they be granted asylum. In particular the first applicant provided only information which was generally accessible to everybody. Had he been an active supporter of this organisation and had he participated in its activities, as he pretended, he would have been able to give specific details concerning this organisation or at least concerning his own activities.

By a judgment of 3 February 1997 the Arnsberg Administrative Court (Verwaltungsgericht) dismissed the action filed by the applicants against the refusal of asylum. The Administrative Court found that the applicants had failed to show any credible reasons in support of their requests for asylum. According to the court the applicants' submissions were wholly unsubstantiated, contradictory and not credible.

On 7 April 1997 the Administrative Court of Appeal of the land of North Rhine-Westphalia (Oberverwaltungsgericht für das Land Nordrhein-Westfalen) dismissed the applicants' request for leave to appeal (Antrag auf Zulassung der Berufung). The Court of Appeal confirmed the above judgment and added that the applicants' political activities in Germany did not justify granting political asylum. The court observed that only persons who had a leading role in activities against the Turkish Government in Germany ran the risk of persecution by the Turkish State. The applicants' activities in Germany, however, concerned merely the participation in demonstrations.

On 26 May 1997 a panel of three judges of the Federal Constitutional Court (Bundesverfassungsgericht) declined to accept the applicants' constitutional complaint (Verfassungsbeschwerde) for a decision.

COMPLAINTS

The applicants complain that their expulsion to Turkey would expose them to a real risk of receiving treatment contrary to Articles 2 and 3 of the Convention. In particular the first applicant fears reprisals and imprisonment on account of his former political activities in Turkey and his recent political activities in Germany. The applicants submit that Kurds who have been expelled to Turkey have been arrested, tortured or disappeared. Furthermore, criminal proceedings have been brought against these persons in accordance with the Anti-Terror Law.

The applicants consider that the concentration of facts and circumstances including the general situation in Turkey, seen as a whole, justify the conclusion that there is a real risk of inhuman or degrading treatment, if they return.

THE LAW

The applicants complain that, if returned to Turkey, they will be arrested and subjected to treatment contrary to Article 3 of the Convention. They also invoke Article 2 of the Convention which, insofar as relevant, provides:

"1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. ..."

Article 3 of the Convention reads as follows:

"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

The Commission recalls that Contracting States have the right, as a matter of well-established international law and subject to their obligations under international treaties including the Convention, to control the entry, residence and expulsion of aliens. Moreover, it must be noted that the right to political asylum is not contained in either the Convention or its Protocols (see Eur. Court HR, Vilvarajah and others v. the United Kingdom judgment of 30 October 1991, Series A no. 215, p. 34, para. 102). However, expulsion by a Contracting State of an asylum seeker may give rise to an issue under Article 3, and hence engage the responsibility of the State under the Convention, where substantial grounds have been shown for believing that the person in question, if expelled, would face a real risk of being subjected to treatment contrary to Article 3 in the receiving country. In these circumstances, Article 3 implies the obligation not to expel the person in question to that country (see Eur. Court HR, Ahmed v. Austria judgment of 17 December 1996, Reports of Judgments and Decisions 1996-VI, No. 26, p. 2206, paras. 38 and 39; No. 21803/93, Dec. 8.9.93, D.R. 75, p. 264).

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 of the Convention (see the above-mentioned 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. The Commission notes that the Arnsberg Administrative Court carefully considered the applicants' allegations and concluded that they were unsubstantiated and in part contradictory and not credible. The Commission finds no indication that upon their return to Turkey the applicants would face a real risk of being deprived of their right to life in breach of Article 2 of the Convention or subjected to treatment contrary to Article 3 of the Convention. The Commission further notes that until now no expulsion measures have been taken against the applicants.

The Commission thus concludes, on the evidence before it, that the situation of which the applicants complain is not such as to raise an issue under Articles 2 and 3 of the Convention.

It follows that the application is manifestly ill-founded within the meaning of Article 27 para. 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