AS TO THE ADMISSIBILITY OF
Application No. 23008/93
by E.H.
against Norway, Sweden and Finland
The European Commission of Human Rights (First Chamber) sitting in
private on 11 January 1994, the following members being present:
MM. A. WEITZEL, President
C.L. ROZAKIS
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
Mrs. M.F. BUQUICCHIO, 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 15 August 1993 by
E.H. against Norway, Sweden and Finland and registered on
25 November 1993 under file No. 23008/93;
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 Kosovo-Albanian Muslim born in 1975. He is a
citizen of the Federal Republic of Yugoslavia and presently staying at
Bardu, Norway together with his parents and sister of the same origin.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant and his father entered Sweden in January 1992 and the
rest of the family in April 1992. They all requested asylum immediately
upon their entry, the male family members fearing that they would be
called up to fight in the Federal Yugoslav army. Allegedly the
applicant's father had been searched for by the military police on
several occasions, but had managed to go into hiding. The female family
members claimed they had been harassed because of their ethnic origin.
In particular, the applicant's mother had been forced to give up her work
as a teacher, having refused to accept the increasing Serbian influence
on her school and the ban on teaching in Albanian.
On 1 February 1993 their asylum requests were rejected by the
National Immigration Board (statens invandrarverk). The Board noted that
the male family members had not shown any call-up orders and that they
therefore would not risk any punishment for draft evasion upon their
return to the Federal Republic of Yugoslavia. The other circumstances
invoked were further not considered such as to render the family eligible
for asylum. Nor were there any reasons for granting them residence
permits.
In their appeal to the Aliens Appeals Board (utlänningsnämnden) the
family alleged that some of their possessions in Kosovo had been seized.
The male family members further invoked call up-orders of 6 December 1991
and 8 January 1992.
On 23 June 1993 the Aliens Appeals Board rejected the family's
appeal. The Board did not question the accuracy of the call-up orders.
It further noted that the penal provision applicable at the time of the
call ups prescribed that the severest punishment be the death sentence.
However, according to a special order by the Minister of Defence to the
two courts competent to try draft evaders and deserters, these courts
shall apply the legislation applicable in times of peace, in which case
the severest punishment could be fifteen years' imprisonment. The Board
had been informed that this order was being complied with. Moreover, in
the exceptional cases when deserters and draft evaders had been
prosecuted, they had normally only received fines or a two to three
months' prison sentence. The male family members' possible sentences
could not therefore render them eligible for asylum. The Board further
considered that the male family members would not be ordered to
participate in acts of war, as the Federal Yugoslav army was not involved
in any such activities.
On 3 July 1993 the applicant and his family arrived in Finland,
where they again requested asylum. This request was rejected on
28 August 1993 and the applicant and his family were apparently ordered
to be removed to Sweden.
In September 1993 the applicant and his family entered Norway. He
has not lodged any asylum request in Norway, referring to the negative
outcome of his requests in Finland and Sweden.
COMPLAINT
The applicant complains that, owing to his ethnic origin, he will
suffer ill-treatment by Serbian officials, if returned to Kosovo in the
Federal Republic of Yugoslavia. Although his return is likely to be
enforced by Swedish or Finnish authorities, he considers his removal from
Norway as a de facto expulsion, having regard to his previous
unsuccessful asylum requests in the other two Nordic countries.
As regards possible ill-treatment upon his return, the applicant
refers, in particular, to attempts by Serbian officials to poison pupils
in his school in Kosovo. In demonstrations against this "serbification"
in 1989 and 1990, in which the applicant apparently took part, some
pupils were allegedly killed and many injured. Moreover, in the
applicant's home town Mitrovica Serbian officials have allegedly recently
assaulted 120 families and arrested 52 men. One young man was allegedly
shot, as he attempted to escape from performing military service.
The applicant further refers to his father's membership in "S.D.A. -
the League for Democratic Acts" and his mother's membership in the
"L.D.K. - the Democratic League of Kosovo". His father has further been
forcibly removed from a previous work place and compelled to work with
explosives. According to a report by Amnesty International of
12 October 1993 political activists have recently been detained and ill-
treated.
The applicant does not invoke any express provision of the
Convention or its Protocols.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 15 August 1993 and registered on
25 November 1993.
On 6 October 1993 the President of the Commission decided not to
indicate to the Government of Norway, in accordance with Rule 36 of the
Rules of Procedure, that it was desirable in the interests of the Parties
and the proper conduct before the Commission not to remove the applicant
from Norway until the Commission had had an opportunity to examine the
case.
THE LAW
The applicant complains that he will suffer ill-treatment, if
returned to Kosovo in the Federal Republic of Yugoslavia, owing to his
ethnic origin. He considers his forthcoming removal from Norway as a de
facto expulsion to the Federal Republic of Yugoslavia, having regard to
his previous unsuccessful asylum requests in Sweden and Finland.
The Commission has examined 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."
(a) As far as the application is directed against Norway, the Commission
finds no indication that the applicant has been ordered to leave that
country. It considers, however, that it can leave open the question
whether the applicant can, in these circumstances, be considered a
"victim" under Article 25 (Art. 25) of the Convention, as the application
is, in any event, inadmissible for the following reasons.
The Commission recalls that the Contracting States have the right,
as a matter of well-established international law and subject to their
treaty obligations including Article 3 (Art. 3), to control the entry,
residence and expulsion of aliens. The right to political asylum is not
protected in either the Convention or its Protocols (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 that 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., para. 103). A mere possibility of
ill-treatment is not in itself sufficient (ibid., p. 37, para. 111).
The examination of the present case involves, on the one hand, the
applicant's personal situation and, on the other, the general situation
in Kosovo. The Commission finds that the general situation in Kosovo at
present is not such that an expulsion to that region would as such amount
to a violation of the Convention or any of its Protocols (e.g. No.
22199/93, Dec. 21.10.93, not published). In order to raise an issue under
Article 3 (Art. 3) of the Convention the existence of a specific risk of
treatment contrary to that provision should therefore be substantiated
in relation to the individual concerned.
As regards the applicant's call-up order the Commission does not
consider it established that he would risk capital punishment for draft
evasion if returned to the Federal Republic of Yugoslavia. Concerning his
possible imprisonment for that offence, the Commission does not find such
a penalty so severe as to raise an issue under Article 3 (Art. 3) of the
Convention (cf. No. 12364/86, Dec. 17.10.86, D.R. 50 p. 280; No.
11017/84, Dec. 13.3.86, D.R. 46 p. 176).
As far as the applicant's own activities in Kosovo as well as his
parents' membership in political groups, the Commission observes that
the applicant left Kosovo already in the beginning of 1992. Consequently,
the relevance of those activities for the applicant's present risk of
treatment contrary to Article 3 (Art. 3) if returned to the Federal
Republic of Yugoslavia is necessarily reduced.
Moreover, the alleged ill-treatment of the applicant's parents and
sister cannot suffice to establish that the applicant himself would be
in a particular situation of risk.
The Commission therefore concludes, on the evidence before it
concerning the applicant's background and the general situation in the
Federal Republic of Yugoslavia, that it has not been established that
there are substantial grounds for believing that he would there be
exposed to a real risk of being subjected to treatment contrary to
Article 3 (Art. 3) of the Convention, if expelled to that country. This
being the Commission's conclusion, it is not necessary to determine the
possible responsibility of Norway for the returning of the applicant to
his country of origin by actions of Swedish or Finnish authorities.
It follows that the application in this respect must be rejected as
being manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
(b) As far as the application is directed against Finland and Sweden,
the Commission again considers it unnecessary to determine whether the
applicant may at this stage claim to be a "victim" of a violation of the
Convention by any of those countries. In view of its conclusion above
with regard to the application as far as directed against Norway, the
Commission considers that the same reasoning applies equally to the
application as far as lodged against Sweden and Finland, given the
information presently available to the Commission.
It follows that the application must also in this respect 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 to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (A. WEITZEL)
Full & Egal Universal Law Academy