AS TO THE ADMISSIBILITY OF
Application No. 21839/93
by Dany and Regina GOURKIS
against Sweden
The European Commission of Human Rights (Second Chamber) sitting
in private on 30 November 1994, the following members being present:
MM. S. TRECHSEL, President
H. DANELIUS
G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
MM. F. MARTINEZ
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
Mr. K. ROGGE, 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 29 December 1992
by Dany and Regina GOURKIS against Sweden and registered on 12 May 1993
under file No. 21839/93;
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 first applicant, Dany Gourkis, was born in 1970. His
nationality is not known. The second applicant, Regina Gourkis, is a
Swedish citizen born in 1971. They reside at Södertälje, Sweden. Before
the Commission they are represented by Mr. Hans Engström, a lawyer
practising in Skärholmen, Sweden.
The facts of the case, as submitted by the applicants, may be
summarised as follows.
The first applicant grew up in Beirut, Lebanon. At the age of 10,
he lost his parents, who were of Turkish origin. Thereafter, he lived
in a Syrian-Orthodox monastery. He used to work for different Christian
militias before the Syrian take-over of Beirut. He was allegedly later
persecuted, and decided to flee the country. On 24 March 1991 he
entered Sweden where he applied for asylum.
In June 1991 he met the second applicant, who is of Syrian-
Orthodox origin and who came to Sweden with her parents at an early
age. In July 1991 the applicants became engaged. On 1 November 1991 and
11 January 1992, respectively, they were married by a judge at the
District Court (tingsrätten) and in the Syrian-Orthodox church in
Södertälje, Sweden. They live together since 1 December 1991.
On 6 August 1991 the National Immigration Board (Statens
invandrarverk) rejected the first applicant's application for asylum
on the ground that his allegations concerning the risk of being
persecuted or killed upon return to Lebanon were exaggerated and did
not constitute grounds for granting him asylum. According to the
decision, he would be expelled to Lebanon, if he did not show that
another country would receive him.
The first applicant appealed to the Aliens Appeals Board
(Utlänningsnämnden) and submitted, as a second ground for a residence
permit, that he was living with a Swedish citizen, the second
applicant.
On 30 September 1992, the Aliens Appeals Board rejected the
appeal, stating, inter alia, that the invoked connection to the second
applicant did not constitute a ground for granting the first applicant
a residence permit.
A fresh application for asylum and a request for a stay of
enforcement of the deportation order were rejected by the National
Immigration Board on 22 March 1993.
After a further request, the first applicant was, by decision of
the National Immigration Board on 31 August 1993, granted a permanent
residence permit.
COMPLAINTS
1. The applicants complain that the initial decisions to refuse the
first applicant a residence permit and to order his expulsion from
Sweden constitute a violation of their right to respect for their
family life and their right to found a family under Articles 8 and 12
of the Convention. They submit that, if the first applicant had been
expelled to Lebanon, he would have faced the risk of persecution and
would not have been able to return to Sweden. Furthermore, it was
unreasonable to expect the second applicant to follow him to Lebanon.
2. The applicants further submit that, although the first applicant
has since been granted a residence permit, the earlier rejections
involved a lot of suffering for them, as they were uncertain whether
they would be able to live together. They also felt harassed by the
procedure of the immigration authorities. Furthermore, they have not
felt safe after the decision to grant the first applicant a residence
permit. They have not invoked any Article in respect of this complaint.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 29 December 1992.
On 15 January 1993 the Commission decided not to apply Rule 36
of its Rules of Procedure.
Following further correspondence with the applicants, the
application was registered on 12 May 1993.
THE LAW
1. The applicants complain that the decisions by which the Swedish
authorities initially refused the first applicant a residence permit
and ordered his expulsion from Sweden violated their right to respect
for their family life and their right to found a family under Articles
8 and 12 (Art. 8, 12) of the Convention.
The Commission recalls that, although no right of an alien to
enter or to reside in a particular country is as such guaranteed by the
Convention, the expulsion of a person from a country where close
members of his or her family are living may amount to an infringement
of the right to respect for family life guaranteed in Article 8 para.
1 (Art. 8-1) (cf. No. 9203/80, Dec. 5.5.81, D.R. 24 p. 239). However,
in the present case the first applicant has been granted a residence
permit and the applicants have apparently been living together since
1 December 1991. No decisions taken by Swedish authorities have led to
their separation. In these circumstances, the Commission finds that
there is no appearance of a violation of their rights under Articles
8 and 12 (Art. 8, 12) 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 applicants further submit that they suffered a lot as a
result of the decisions to reject the first applicant a residence
permit, that they felt harassed by the procedure of the immigration
authorities and that they have not felt safe after the decision to
grant the first applicant a residence permit.
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, recalling that ill-treatment must attain a
minimum level of severity if it is to fall within the scope of Article
3 (Art. 3) (cf. Eur. Court H.R., Ireland v. United Kingdom judgment of
18 January 1978, Series A no. 25, p. 65, para. 162), considers that the
treatment alleged by the applicants clearly does not attain this level
of severity.
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.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy