AS TO THE ADMISSIBILITY OF
Application No. 34025/96
by Abate GELAW
against Sweden
The European Commission of Human Rights sitting in private on
21 October 1997, the following members being present:
Mr S. TRECHSEL, President
Mrs G.H. THUNE
Mrs J. LIDDY
MM E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
C.L. ROZAKIS
L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
G. RESS
C. BÎRSAN
P. LORENZEN
K. HERNDL
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
Mrs M. HION
MM R. NICOLINI
A. ARABADJIEV
Mr M. de SALVIA, 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 23 August 1996 by Abate Gelaw against Sweden
and registered on 3 December 1996 under file No. 34025/96;
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 an Ethiopian citizen born in 1966.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant arrived in Sweden in 1992. In 1994 he was granted
a permanent residence permit on account of his relationship with Y.W.,
an Ethiopian woman living in Sweden, to whom he was engaged. From his
arrival he lived with that woman and her friend in a flat in Norsborg.
The relationship with Y.W. ended in May 1995 and the applicant moved
out of the flat.
By judgment of 16 October 1995, the District Court (tingsrätten)
of Huddinge found the applicant guilty of having raped the above friend
on 17 June 1995. He was also convicted of molestation of another woman
in September 1995. The applicant was sentenced to two years and eight
months in prison. The court further ordered his expulsion from Sweden,
in accordance with Chapter 4, Section 7 of the Aliens Act
(Utlänningslagen, 1989:529). In so deciding, the court noted that the
applicant, according to a statement from the National Immigration Board
(Statens invandrarverk), was not considered as a refugee and that he
had not invoked, before the Board, any political grounds for not
wanting to return to Ethiopia. The court further took into account
that the relationship with Y.W. had ended and that he had no other ties
to Sweden.
The applicant appealed against the expulsion order to the Svea
Court of Appeal (Svea hovrätt). He stated that, with the help of
members of Y.W.'s family, he and Y.W. were reconciled and were again
engaged to be married.
On 21 November 1995 the appellate court upheld the expulsion
order, finding that the renewed engagement did not constitute a
sufficient family tie to refrain from expelling him.
It appears that the Supreme Court (Högsta domstolen) later
refused the applicant leave to appeal.
On two occasions the applicant requested the Government to
exercise its power under Chapter 7, Section 16 of the Aliens Act
(Utlänningslagen) to annul the expulsion order. By decisions of 2 May
and 5 September 1996, the Government rejected the requests.
On 10 December 1996 the applicant married Y.W.
On 3 January 1997 he was released on probation.
COMPLAINTS
The applicant complains that, in view of his relationship with
Y.W. and the time he had spent in Sweden, the expulsion order was not
fair. He invokes Article 12 of the Convention and Article 1 para. 1
of Protocol No. 7 to the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 23 August 1996. The applicant
requested the Commission to petition the Swedish Government to stay his
expulsion.
On 6 December 1996 the Commission decided not to indicate to the
Government, pursuant to Rule 36 of the Commission's Rules of Procedure,
the measure suggested by the applicant.
The application was registered on 3 December 1996.
THE LAW
The applicant complains that, in view of his relationship with
Y.W. and the time he had spent in Sweden, the expulsion order was not
fair. He claims that he does not have any relatives in Ethiopia and
will not be able to support himself there. Moreover, he allegedly
belongs to a minority tribe in Ethiopia, Amhara, and has been a member
of an Ethiopian anti-government organisation in Sweden. He invokes
Article 12 (Art. 12) of the Convention and Article 1 para. 1 of
Protocol No. 7 (P7-1-1) to the Convention.
Article 12 (Art. 12) of the Convention reads as follows:
"Men and women of marriageable age have the right to marry
and to found a family, according to the national laws
governing the exercise of this right."
Article 1 para. 1 of Protocol No. 7 (P7-1-1) to the Convention
provides the following:
"1. An alien lawfully resident in the territory of a State
shall not be expelled therefrom except in pursuance of a
decision reached in accordance with law and shall be
allowed:
a. to submit reasons against his expulsion,
b. to have his case reviewed, and
c. to be represented for these purposes before the competent
authority or a person or persons designated by that authority."
The Commission notes that the applicant married Y.W. on
10 December 1996. Furthermore, the District Court's expulsion order
was reviewed by the Court of Appeal and, in deciding not to grant leave
to appeal, the Supreme Court. On two occasions, the Government refused
to annul the order. The applicant has not claimed that he could not
exercise his rights under Article 1 para. 1 of Protocol No. 7 (P7-1-1)
before these bodies.
In these circumstances, the Commission finds that there is no
evidence of a violation of the Articles invoked by the applicant. The
Commission, however, considers that his complaints fall to be examined
also under Articles 3 and 8 (Art. 3, 8) of the Convention.
Article 3 (Art. 3) of the Convention states as follows:
"No one shall be subjected to torture or to inhuman or
degrading treatment or punishment." The Commission notes,
in this regard, that the applicant originally was granted
a permit to reside in Sweden on account of his relationship
with Y.W. He did not invoke any political grounds when
applying for that permit. Neither did he refer to his
alleged membership of a minority tribe and an Ethiopian
anti-government organisation at any stage of the
proceedings in Sweden. Moreover, he has not indicated that
these connections will lead to any adverse consequences for
him in Ethiopia. The Commission, therefore, finds that no
grounds have been shown for believing that the applicant
will face the risk of being subjected to treatment contrary
to Article 3 (Art. 3).
Article 8 (Art. 8) of the Convention 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 or 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., e.g., Eur.
Court HR, Moustaquim v. Belgium judgment of 18 February 1991, Series
A no. 193, pp. 19-20, paras. 43-46).
Noting that the applicant lived with Y.W. since his arrival in
Sweden in 1992, the Commission considers that the applicant's expulsion
could be considered as an interference with his right to respect for
his family life. However, as the expulsion was ordered under the
applicable provision of the Aliens Act following the applicant's
conviction for rape and molestation, the interference was in accordance
with the law and pursued the legitimate aim of preventing crime.
Furthermore, having regard to the seriousness of the crimes in question
and taking into account that the applicant and Y.W. had been reconciled
and married at a time when the expulsion had already been ordered, the
Commission concludes that the Swedish authorities have not failed to
fulfil their obligation to strike a fair balance between the relevant
interests. Accordingly, the interference with the applicant's right
to respect for his family life under Article 8 (Art. 8) of the
Convention is justified in that it can reasonably be considered
necessary in the interest of preventing crime.
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. de SALVIA S. TRECHSEL
Secretary President
to the Commission of the Commission
Full & Egal Universal Law Academy