AS TO THE ADMISSIBILITY OF
Application No. 27057/95
by Mohammad ASLAM
against Norway
The European Commission of Human Rights (Second Chamber) sitting
in private on 9 April 1997, the following members being present:
Mr. J.-C. GEUS, Acting President
Mrs. G.H. THUNE
MM. G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
Ms. M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 10 April 1995 by
Mohammad ASLAM against Norway and registered on 20 April 1995 under
file No. 27057/95;
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 applicant is a Pakistani citizen, born in 1950. He resides
in Kharian, in the district of Gujrat, Pakistan. Before the Commission
the applicant is represented by Mr Leidulv Digernæs, a lawyer
practising in Oslo.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant was raised in Pakistan where he finished elementary
school. In 1969 he married B, a Pakistani citizen, and two daughters,
S and M, were born in Pakistan in 1973 and 1974 respectively.
The applicant came to Norway in 1973. He received a residence
and work permit there. The applicant's wife and daughters joined him
in Norway in 1979. Four children were born in Norway in 1979, 1980,
1983 and 1988 respectively. While in Norway the family remained in
contact with their families in Pakistan. The daughters S and M spent
several years in Pakistan where they went to school and the four
children, born in Norway, visited Pakistan on several occasions. Today
S is married and lives in the northern part of Norway. M returned to
Pakistan in 1992 and is living there today. The applicant's wife and
the four children born in Norway reside today in Oslo whereas the
applicant lives in Pakistan due to the circumstances set out below.
In 1989 the applicant's eldest daughter, S, commenced a
relationship with another Pakistani citizen residing in Norway. The
applicant did not approve of this and on 30 August 1990 around
15.00 hours he confronted his daughter, who at the time was 16 years
old, with his views thereon. Over a period of approximately 11 hours
he beat his daughter in the face and on the body with his fists and
with different tools, including a plank and the handle of a knife. He
forced her to take off all her clothes following which he raped her
four times while hitting her when she tried to defend herself. The
applicant's wife tried in vain to intervene. S suffered numerous
bruises to her head and body and was hospitalised for three days. She
was subsequently taken into care and the applicant was arrested and
detained on remand.
By judgment of 22 August 1991 the Eidsivating High Court
(Lagmannsrett) found the applicant guilty of inter alia assault and
rape in particularly aggravating circumstances and sentenced him to
three years' imprisonment. Furthermore, he was ordered to pay
60,000 NOK in damages to his daughter.
Following this judgment the Aliens Directorate
(utlendingsdirektoratet) decided, on 3 March 1992, to expel the
applicant and refused him permission ever to return to Norway. This
decision was upheld by the Ministry of Justice on 16 July 1992.
On 20 July 1992 the applicant instituted proceedings against the
State represented by the Ministry of Justice maintaining that the
decision to expel him forever was illegal and/or disproportionate in
the circumstances. By judgment of 10 July 1993 the Oslo City Court
(byrett) found against the applicant and upheld the expulsion order.
The judgment was upheld by the Eidsivating High Court on
15 November 1993. The High Court judgment was appealed against to
the Supreme Court (Høyesterett) which ordered the Oslo City Court to
provide further evidence (bevisopptak for Høyesterett). Following this
the Supreme Court pronounced judgment on 17 January 1995. In its
judgment Justice Backer stated on behalf of the unanimous court inter
alia as follows in respect of Article 8 of the Convention:
(Translation)
"It is clear that this provision applies as part of
Norwegian law ... . When applying it reference must be
made in particular to the case-law of the Court of Human
Rights and the Commission. It is clear that Article 8 has
been used in several cases when the expulsion of an alien
has led to the splitting up of a family.
The first question is whether our case falls under
Article 8 para. 1. It has not been considered to be a
separation of family members if it would not be
unreasonable to expect that the alien's spouse and children
could follow him/her to the foreign country ... . Here it
is a question of how difficult it would be for [the
applicant's] spouse and four youngest children, who live
with her in this country, to move to Pakistan. In my
opinion a lot speaks in favour of finding that it would be
so natural for them to follow the head of the family to
Pakistan if they wish to maintain their family life, in
spite of what has happened, that Article 8 para. 1 does not
apply. The arguments concerning this, however, resembles
the argumentation under Article 8 para. 2. Therefore, I
find it appropriate to leave the question under Article 8
para. 1 open and to discuss the applicability of para. 2
directly.
Under Article 8 para. 2 the question is whether the imposed
separation of the family members can be accepted for any of
the following reasons set out therein. The decisive
element under the Convention is whether it was 'necessary
in a democratic society'. The authorities' interference
must, according to case-law, be based on a 'pressing social
need'. It is not decisive, however, whether the
interference is unavoidable and the authorities have a
'margin of appreciation' when considering the necessity of
the interference ... . The point is that a balanced
evaluation must be made, having regard to the case-law of
the Commission and the Court of Human Rights.
In the present case the Aliens Directorate and the Ministry
of Justice have, despite [the applicant's] long stay in
Norway, undoubtedly a strong basis upon which to expel him
following the gross violations committed vis-à-vis his own
daughter. It may appear strange that indeed the respect
for family life is relied upon by someone who appears to
have violated the preconditions therefor. I refer in this
respect to the fact that also [the applicant's] spouse was
present when the rape and the ill-treatment of their
daughter was committed, and tried in vain to prevent it
from happening. Furthermore, I refer to the fact that it
appears from the Nordstrand social centre's
files that complaints were made about [the
applicant's] brutal methods of raising his
children, something the High Court characterises
in the 1991 judgment as criminal offences.
However, during the proceedings before the
Supreme Court the family members, who were
heard, all spoke in favour of [the applicant].
This includes the victimised daughter.
As regards the family's present situation it has been
submitted that the spouse and the four children, who stay
with her, live off social assistance. In her witness
statement the director of the Nordstrand social centre
characterises the family's situation as follows:
'... the witness explains that the family has integrated
very little into Norwegian society. The family has
practised its culture and religion. The boys think in
accordance with Pakistani norms. The social centre has
tried to explain Norwegian law and norms to the boys but
this comes second to the views of their father. The
witness expresses doubts as to the boys' future in Norway.
Their mother insists on remaining in Norway due to the
boys' possibilities of obtaining an education here. This
is the father's view and the mother is of the same opinion
as the father.
...
... the witness submitted that she has previously worked at
the Søndre Nordstrand social centre. There she worked
primarily with aliens. Compared with other families of
aliens she met there she considers that [the applicant's]
family is isolated. They maintain strongly their culture
and religion. The family hardly accepts Norwegian rules
and norms.
...
... the witness explained that it was her impression that
the mother was kept very isolated. She was unable to go to
the post office to collect the children's allowances. The
witness does not believe that the family is interested in
integrating into Norwegian society.
...
On the basis of the witness's experience with other
families of aliens she considers that [the applicant's]
family is particularly isolated vis-à-vis Norwegian
society.'
It appears further from the evidence that [the applicant's]
spouse, who arrived in Norway in 1979, only commenced a
Norwegian language course following her husband's arrest,
and her knowledge of Norwegian is such that she gave
evidence through an interpreter. Members of [the
applicant's] and his wife's families all live in Pakistan,
except [the applicant's] half-brother who resides in
Norway. The family has kept in contact with its
relativesin Pakistan through frequent visits.The question
whether it would lead to disproportionate negative effects,
both in respect of living in Norway without the head of the
family and in respect of moving to Pakistan is, in my
opinion, first and foremost of relevance vis-à-vis the four
children who were born in Norway. I assume it would be
unfortunate for their schooling to move to Pakistan at
present, at least for the three oldest of them. It has
also been submitted that they have not mastered the
Pakistani written language whereas the oral language causes
no problem to them. On the other hand I consider, on the
basis of what has been submitted, that they are relatively
poorly integrated into Norwegian society and that their
affiliation with Norway is not very strong.
In these circumstances I do not consider that the spouse
and the four children in Norway will be placed in such a
difficult situation, by choosing between remaining here
without the head of their family or moving to Pakistan in
order to be reunited with him, that this outweighs the
strong public interest in being able to expel a foreigner
who has committed such serious criminal offences as is here
the case. ..."
The applicant returned to Pakistan in 1993.
COMPLAINTS
The applicant complains of the fact that he cannot return to his
wife and children in Norway. He considers that it cannot, in the
circumstances, be expected that they move to Pakistan and that the
interference with his family life cannot be considered "necessary in
a democratic society". He refers in particular to the fact that he has
lived his adult life in Norway and there is no reason to believe that
he will commit similar offences again. He invokes Article 8 of the
Convention.
THE LAW
The applicant complains that his expulsion from Norway, in the
circumstances, amounts to an unjustified interference with his right
to respect for his family life. He invokes Article 8 (Art. 8) of the
Convention which reads as follows:
"1. Everyone has the right to respect for his private and
family life, his home and his correspondence.
2. There shall be no interference by a public authority
with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic
society in the interests of national security, public
safety or the economic well-being of the country, for the
prevention of disorder or crime, for the protection of
health or morals, or for the protection of the rights and
freedoms of others." The Commission recalls that no right
of an alien to enter or to reside in a particular country,
nor a right not to be expelled from a particular country,
is as such guaranteed by the Convention. However, Article
8 (Art. 8) of the Convention guarantees to everyone, inter
alia, a right to respect for his/her family life and in
this connection the Commission has held that the exclusion
of a person from a country in which his/her close relatives
live may raise an issue under this provision (cf. Eur.
Court HR, Berrehab v. the Netherlands judgment of 21 June
1988, Series A no. 138, p. 15, para. 28 and No. 11274/84,
Dec. 1.7.85, D.R. 43, p. 216).
In situations in which, as in this case, a married man is obliged
to leave a State in which he has been living with his wife and
children, the Commission considers it relevant in particular to examine
the realistic possibilities of the family to follow the husband and
father.
In the present case the Commission recalls that the applicant
lived the first 23 years of his life in Pakistan. He married there in
1969 and his two eldest children were born there. Following his move
to Norway in 1973 it has been established that he kept in close contact
with other family members, as well as his wife's family members, by
frequent visits to Pakistan and he has remained faithful to Pakistani
norms and traditions. Thus, the Commission considers that the fact
that the applicant lived 19 years in Norway does not, in the
circumstances, give rise to problems under Article 8 (Art. 8) of the
Convention.
As regards the applicant's wife and children the Commission
recalls that the former came to Norway in 1979 but did not integrate
into Norwegian society. From the facts of this case the Commission
finds it clear that the applicant's wife would not be confronted with
any particular problems should she choose to join her husband in
Pakistan.
As regards the applicant's six children the Commission recalls
that the eldest daughter, who was the victim of the crimes committed
by the applicant, is now married and lives with her own family in
northern Norway. No issue under Article 8 (Art. 8) would therefore
arise in respect of her. Furthermore, the daughter M actually lives
in Pakistan today.
What remains is the question concerning the applicant's four sons
who were born in Norway and who are today 17, 16, 13 and 9 years old
respectively. Although the Commission acknowledges that living in
Pakistan might cause certain difficulties for them, the circumstances
of this case do not disclose that these difficulties would be such that
it could not be expected of them to move to Pakistan if they wanted to
continue their family life with their father. In particular the
Commission recalls that all children have been brought up under
Pakistani norms and traditions and will, in Pakistan, enjoy the support
not only of their parents but also of their uncles, aunts, grandparents
and other relatives.
In these circumstances the Commission finds that the Norwegian
authorities have not shown any lack of respect for the applicant's
family life as no insurmountable obstacles, which would prevent the
family from being reunited in Pakistan, have been established. 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, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER J.-C. GEUS
Secretary Acting President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy