AS TO THE ADMISSIBILITY OF
Application No. 26305/95
by Shaban DUSHI
against Sweden
The European Commission of Human Rights (Second Chamber) sitting
in private on 19 October 1995, the following members being present:
MM. G. JÖRUNDSSON, Acting President
H. DANELIUS
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
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 31 October 1994
by Shaban Dushi against Sweden and registered on 25 January 1995 under
file No. 26305/95;
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 facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant, born in 1971, is a so-called Kosovo Albanian and
a citizen of Yugoslavia. At present he resides at Malmberget, Sweden.
In October 1991 he was called up to serve in the Federal Yugoslav
army. As he refused to sign the calling-up papers, the police was
searching for him. He hid from the police until he left the country in
January 1992. On 14 January he entered Sweden and applied for asylum.
In his application, he stated that upon return to Yugoslavia he would
be sent to the front-line. He also referred to the general situation
in Yugoslavia and alleged that Kosovo Albanians are persecuted and
discriminated against. He further submitted a document, which he
claimed to be the calling-up order.
On 29 June 1993 the National Immigration Board (Statens
invandrarverk) rejected the application. The Board stated that it was
unlikely that the applicant would be punished for evading military
service and that, in any case, the possible sanction would not be
severe. Moreover, he would not be forced to do active service. The
Board further considered that the general situation in Yugoslavia and
the other information given by the applicant were not such as to
constitute a ground for granting him asylum or a residence permit. It
had translated the document submitted by the applicant and noted that
it was an order that he should serve 50 days in prison according to a
sentence passed by a court.
Reiterating what he had stated before the Immigration Board and
submitting a new document, the applicant appealed to the Aliens Appeals
Board (Utlänningsnämnden). On 21 September 1994 the appeal was
rejected. The Appeals Board agreed with the findings of the Immigration
Board. It also noted that the new document was a summons to a hearing
of a municipal court concerning certain economic and family law
offences.
The applicant later lodged fresh applications with the Appeals
Board. They were rejected by decisions of 4 and 19 October 1994.
COMPLAINTS
1. The applicant complains that the Swedish immigration authorities
were not impartial when they decided on his applications, as they
failed to take into account his statements and the documents he had
submitted. He invokes Article 6 of the Convention.
2. Without invoking any further Articles, he also claims that upon
return to Yugoslavia he will receive a heavy penalty for desertion.
THE LAW
1. The applicant complains that his applications have not been
examined impartially. He invokes Article 6 (Art. 6) of the Convention,
which, in relevant parts, reads as follows:
"1. In the determination of his civil rights ..., everyone
is entitled to a fair ... hearing ... by an independent and
impartial tribunal ..."
However, the Commission has constantly held that the procedures
followed by public authorities to determine whether an alien should be
allowed to stay in a country or should be expelled do not involve the
determination of civil rights within the meaning of Article 6 (Art. 6)
of the Convention (cf., e.g., No. 12122/86, Lukka v. the United
Kingdom, Dec. 16.10.86, D.R. 50, p. 268, and 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.
2. The applicant further claims that upon return to Yugoslavia he
will receive a heavy penalty for desertion.
The Commission has considered this part of the application under
Article 3 (Art. 3) of the Convention, which 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 to
control the entry, residence and expulsion of aliens. The right to
political asylum is not protected in either the Convention or its
Protocols (cf. Eur. Court H.R., Vilvarajah and Others 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 (Art. 3) of the Convention, and hence engage
the responsibility of the State under the Convention, where substantial
grounds have been shown for believing that the person concerned would
face a real risk of being subjected to torture or to inhuman or
degrading treatment or punishment in the country to which he is to be
expelled (ibid., p. 34, para. 103). A mere possibility of ill-treatment
is not in itself sufficient (ibid., p. 37, para. 111).
The applicant submits that he will receive a heavy penalty for
desertion. In his applications to the Swedish immigration authorities,
he has further referred to the general situation in Yugoslavia, in
particular the situation of the Kosovo Albanians.
The Commission cannot find it established that the general
situation in Kosovo is such that any expulsion of persons coming from
that area would be contrary to the Convention (cf. No. 21576/93, F.D.
v. Norway, Dec. 10.9.93, unpublished). In order to raise an issue under
Article 3 (Art. 3) of the Convention, there should, accordingly, be
some substantiation as to the existence of a specific risk for the
applicant of treatment contrary to that provision.
However, as to the specific risk alleged by the applicant - that
he will receive a heavy penalty for desertion - the Commission does not
find any indication that any such sanction would be so severe as to
raise an issue under Article 3 (Art. 3) of the Convention (cf.
No. 12364/86, referred to above).
Accordingly, the Commission concludes that it has not been
established that there are substantial grounds for believing that the
applicant would be exposed to a real risk of being subjected to
treatment contrary to Article 3 (Art. 3) of the Convention if returned
to Yugoslavia.
Moreover, the Commission recalls from its previous case-law that
Chapter 8, Section 1 of the Swedish Aliens Act (Utlänningslagen,
1989:529) imposes an absolute obligation on the enforcement authority
in Sweden to refrain from expelling an alien should the human rights
situation in the receiving country constitute a firm reason to believe
that he or she would be in danger of being subjected to capital or
corporal punishment, or torture, in that country (cf., e.g.,
No. 25387/94, Kas Ibrahim and Parsom v. Sweden, Dec. 4.7.95,
unpublished).
It follows that this part of the application must be rejected as
being 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.
Secretary Acting President
to the Second Chamber of the Second Chamber
(M.-T. SCHOEPFER) (G. JÖRUNDSSON)
Full & Egal Universal Law Academy