AS TO THE ADMISSIBILITY OF
Application No. 27327/95
by Richard Ian BOYCE
against Sweden
The European Commission of Human Rights (Second Chamber) sitting
in private on 16 October 1996, the following members being present:
Mrs. G.H. THUNE, President
MM. G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
L. LOUCAIDES
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 24 April 1995 by
Richard Ian BOYCE against Sweden and registered on 15 May 1995 under
file No. 27327/95;
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 citizen of Barbados born in 1965. He resides
at Christ Church, Barbados. Before the Commission he is represented
by Mr. Thomas Wasteson, a lawyer practising at Linköping, Sweden.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant arrived in Sweden on 10 December 1991. He was
granted a residence permit from 31 January 1992 on account of his
marriage to a Swedish woman, M.B. The permit was later extended until
2 December 1994. The applicant and M.B. have two children, a son born
in October 1991 and a daughter born in March 1994. In June 1993 the
couple filed a petition for divorce and, by judgment of the District
Court (tingsrätten) of Linköping of 7 July 1994, the divorce was
finalised.
On 22 August 1994 the District Court convicted the applicant of
two counts of battery, aggravated battery, threatening behaviour,
trespassing and violent resistance. The offences, some of which were
directed against M.B., had been committed in August 1993 and July 1994.
The applicant was sentenced to one year's imprisonment.
The public prosecutor called for the applicant's expulsion. The
District Court noted that the applicant was a drug abuser and that the
crimes he had committed, especially the aggravated battery, were of a
serious nature. This had to be weighed against the applicant's
connections to Sweden. In this respect, the Court noted that the
applicant had been in Sweden for more than two years but did not have
a job and had not in any other significant way integrated into Swedish
society. However, an expulsion of the applicant would effectively
render further contacts between him and his two children impossible.
On balance, the Court therefore concluded that there were not
sufficient reasons to order the applicant's expulsion.
No appeal was made against the District Court's judgment.
M.B. instituted custody proceedings in the District Court,
claiming sole custody of the two children. The applicant conceded to
her request. Accordingly, on 31 October 1994, the Court decided
provisionally to grant M.B. sole custody. The applicant's request for
provisional access was rejected, however, as the Court found this not
to be in the children's best interests. The decision was upheld on
appeal by the Göta Court of Appeal (Göta hovrätt) on 3 November 1994.
On 29 November 1994 the District Court reversed its previous decision
and decided provisionally to grant the applicant access to his son once
a month for four hours in the presence of a contact person appointed
by the social authorities at Linköping. The Court further ordered the
social authorities to investigate the question of access.
The applicant later applied for an extension of his residence
permit. After having refused the applicant an oral hearing, the
National Immigration Board (Statens invandrarverk), on 29 December
1994, rejected the application. The Board had regard to the offences
of which the applicant had been convicted and considered that the ties
between the applicant and his children were not close. The Board
further ordered the applicant's expulsion and issued a prohibition on
return valid for five years from its decision.
On 13 March 1995 the Aliens Appeals Board (Utlänningsnämnden)
upheld the Immigration Board's decision save for the prohibition on
return, which was revoked due to the pending access investigation. As
regards the applicant's relation to his children, the Appeals Board
noted that he had taken care of his son between January and October
1993 when M.B. had been working part-time. Thereafter, the applicant
and the son had had only sporadic contacts. Like the Immigration
Board, the Appeals Board rejected the applicant's request for an oral
hearing.
The applicant was expelled to Barbados on 22 March 1995.
The proceedings concerning custody and access are still pending
in the District Court. In March 1996 the applicant requested access
to his children one week every summer and one week every second
Christmas. M.B. accepted his request on the condition that a contact
person from the social authorities be present at the meetings. The
applicant's representative has not been able to reach the applicant and
obtain his views on this condition since March 1996. Furthermore, the
social authorities have not had the opportunity to observe the
applicant and the children together and have thus not concluded the
investigation requested by the Court.
Under Chapter 2, Section 1 of the Aliens Ordinance (Utlännings-
förordningen, 1989:547), a citizen of Barbados may enter Sweden without
a visa. Chapter 1, Section 4 of the Aliens Act (Utlänningslagen,
1989:529) provides that a residence permit is required for a stay
exceeding three months.
COMPLAINTS
1. The applicant alleges that his expulsion from Sweden prevents
contacts between him and his children and thus fails to respect his
family life. He invokes Article 8 of the Convention.
2. The applicant also maintains that he has not had a fair hearing
in the case concerning custody and access as the expulsion order makes
it very difficult or impossible for him to appear in court or take part
in the social authorities' access investigation. In this respect, he
invokes Article 6 of the Convention.
3. Further under Article 6 of the Convention, the applicant
complains that the National Immigration Board and the Aliens Appeals
Board did not hold oral hearings.
THE LAW
1. The applicant complains that his expulsion from Sweden prohibits
contacts between him and his children and thus fails to respect his
family life. He invokes Article 8 (Art. 8) of the Convention, which
provides the following:
"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 and morals, or for the protection of the rights and
freedoms of others."
The Commission recalls that the expulsion of a person from a
country in which close members of his family live may amount to an
unjustified interference with his right to respect for his family life
as guaranteed by Article 8 (Art. 8) of the Convention (cf. Eur. Court
HR, Moustaquim v. Belgium judgment of 18 February 1991, Series A no.
193, pp. 19-20, paras. 43-46).
The Commission notes, however, that the Aliens Appeals Board,
due to the pending access investigation, revoked the prohibition on
return imposed by the National Immigration Board. Furthermore, Chapter
2, Section 1 of the Aliens Ordinance provides that a citizen of
Barbados may enter Sweden without a visa. The applicant may thus
return to Sweden and stay there for periods of three months. In this
connection, the Commission further notes that the applicant, in the
pending District Court proceedings, has requested access to his
children one week every summer and one week every second Christmas.
Accordingly, the expulsion order does not prevent the applicant from
meeting his children on the requested dates. Moreover, the Commission
cannot find, in the circumstances of the case, that the inconvenience
of having to travel from Barbados to Sweden on these occasions places
an unreasonable burden on the applicant.
In view of the above, the Commission concludes that the present
case does not reveal any failure of the Swedish authorities to respect
the applicant's family life under Article 8 (Art. 8) of the Convention.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant also complains that he has not had a fair hearing
in the case concerning custody and access as the expulsion order makes
it very difficult or impossible for him to appear in court or take part
in the social authorities' access investigation. In this respect, he
invokes Article 6 (Art. 6) of the Convention which, in so far as
relevant, reads as follows:
"1. In the determination of his civil rights ..., everyone
is entitled to a fair and public hearing ..."
Recalling its findings under 1 above, the Commission considers
that there is nothing to prevent the applicant from travelling to
Sweden to appear in court or to take part in the access investigation.
There is thus no indication of a violation of the applicant's rights
under Article 6 (Art. 6) of the Convention.
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. Further under Article 6 (Art. 6) of the Convention, the applicant
complains that the National Immigration Board and the Aliens Appeals
Board did not hold oral hearings.
The Commission recalls that the proceedings in which it is merely
decided whether an individual should be expelled from a country do not
come within the scope of Article 6 (Art. 6) of the Convention (cf.,
mutatis mutandis, No. 12364/86, Kilic v. Switzerland, Dec. 17.10.86,
D.R. 50 p. 280).
It follows that this part of the application is incompatible
ratione materiae with the provisions of the Convention 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.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy