AS TO THE ADMISSIBILITY OF
Application No. 16210/90
by A.S. and M.S.
against Sweden
The European Commission of Human Rights sitting in private
on 2 July 1990, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ RUIZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
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 9 February 1990
by A.S. and M.S. against Sweden and registered on 26 February 1990
under file No. 16210/90;
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 applicants, may be
summarised as follows.
The applicants are Bulgarian citizens, born in 1961 and 1962.
They are at present evading expulsion to Bulgaria by hiding in a
church in Sweden. Before the Commission the applicants are
represented by Mr. Mats Ljungquist, a lawyer practising in Stockholm.
The applicants and their child, born in 1985, came to Sweden
on 20 September 1989 and applied for permission to stay in Sweden.
They invoked inter alia political reasons against returning to
Bulgaria.
On 15 December 1989 the National Immigration Board (statens
invandrarverk) refused the applications and ordered that the applicants
and their child be expelled from Sweden.
The applicants appealed to the Government. The National
Immigration Board submitted an opinion dated 29 December 1989 and the
applicants' counsel submitted comments thereafter. On 25 January 1990
the Government rejected the appeal. The Government noted that, in
support of their applications for asylum, the applicants had invoked
that they were subjected to persecution in their home country on
account of their belonging to the Turkish-speaking minority in
Bulgaria. The persecution consisted inter alia in not allowing them to
keep their Turkish names and to speak Turkish. The Government found
that the situation for the Turkish-speaking minority group in Bulgaria
was such that the group generally speaking could not be considered to
be subject to persecution. They further found no indication in the
submissions that the applicants would risk persecution if they were to
return to their home country. The Government concurred with the
Immigration Board's assessment that the applicants did not have a right
to asylum as refugees in accordance with Chapter 3 Section 2 of the
Aliens Act (utlänningslagen). Furthermore they were not entitled to
remain in Sweden on any other ground. Consequently, immediate
expulsion should be ordered.
Following this decision the applicants have gone into hiding
in a church in Sweden which the police who are entrusted with the task
of enforcing the expulsion order do not enter.
COMPLAINTS
The applicants allege that their deportation to Bulgaria
would involve a violation of Article 3 of the Convention in view of
the prison sentences which they will face in Bulgaria.
PROCEEDINGS BEFORE THE COMMISSION
On 16 March 1990, following a request from the applicants, the
Commission decided not to indicate to the Government that they should
not deport the applicants pending the Commission's examination of the
case.
THE LAW
The applicants allege a violation of Article 3 of (Art. 3)
the Convention on the ground that their expulsion to Bulgaria would
involve a risk of their imprisonment in that country. The applicants
submit that the Turkish-speaking minority is persecuted in Bulgaria.
Their Turkish names have been changed to Bulgarian names. The use of
the Turkish language has been banned and those who have spoken Turkish
have been fined. Discriminatory practices have been applied against
the Turkish- speaking minority. In the summer of 1989, 318,000
Turkish-speaking Bulgarians emigrated from Bulgaria. Approximately
5,000 of them came to Sweden.
Article 3 (Art. 3) of the Convention reads:
"No one shall be subjected to torture or to inhuman or
degrading treatment or punishment."
The Commission first recalls that according to its established
case-law the right to asylum and the right not to be expelled are not as
such included among the rights and freedoms mentioned in the Convention
but that the expulsion of a person may nevertheless, in certain
exceptional circumstances, raise an issue under the Convention and in
particular under Article 3 (Art. 3) where there are serious grounds to
fear that the person concerned would be subjected, in the State to
which he is to be sent, to treatment which is in violation of this
Article (Art. 3) (see e.g. No. 1802/62, Dec. 26.3.63, Yearbook 6 pp.
462, 480; No. 10308/83, Dec. 3.5.84, D.R. 36 pp. 209, 231; No. 10564/83,
Dec. 10.12.84, D.R. 40 pp. 262, 265).
In the Soering case, the European Court of Human Rights stated
as follows (Eur. Court H.R., Soering judgment of 7 July 1989, Series A
no. 161, para. 91):
"In sum, the decision by a Contracting State to extradite a
fugitive may give rise to an issue under Article 3 (Art. 3), and hence
engage the responsibility of that State under the Convention,
where substantial grounds have been shown for believing that
the person concerned, if extradited, faces a real risk of
being subjected to torture or to inhuman or degrading
treatment or punishment in the requesting country. The
establishment of such responsibility inevitably involves an
assessment of conditions in the requesting country against the
standards of Article 3 (Art. 3) of the Convention."
In the Commission's view, this test also applies to cases of
expulsion. Consequently, it must be examined whether there are
substantial grounds to believe that the applicants face a real risk of
being subjected to treatment contrary to Article 3 (Art. 3) of the
Convention, if deported to Bulgaria.
The Commission also recalls that ill-treatment or punishment must
obtain a certain level of severity if it is to fall within the scope of
Article 3 (Art. 3) of the Convention. The assessment of this level
depends on all the circumstances of the case, such as the nature and
context of the treatment or punishment, the manner and method of its
execution, its duration, its physical or mental effects (cf. Eur.
Court H.R., Soering judgment loc. cit. with further references). It
is clear that a prison sentence does not as such constitute treatment
contrary to Article 3 (Art. 3) of the Convention.
The Commission considers that the general situation in Bulgaria
is not such that expulsion to that country would in general be a
violation of Article 3 (Art. 3) of the Convention. In order to raise
an issue under Article 3 (Art. 3) there must be some substantiation of
a risk in the specific case of treatment contrary to Article 3
(Art. 3).
The Commission has examined the applicants' submissions and
the documents in support of their application. Although it accepts
that the expulsion of the applicants involves certain hardship for
them, the Commission nevertheless finds that the information available
to it is not sufficient to conclude that there exists a substantial
risk that the applicants would be subjected to treatment contrary to
Article 3 (Art. 3) of the Convention if they were returned to Bulgaria.
It follows that the application is 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
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy