AS TO THE ADMISSIBILITY OF
Application No. 23175/94
by G.W.
against Sweden
The European Commission of Human Rights sitting in private on
20 January 1994, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
A. WEITZEL
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
Mrs. G.H. THUNE
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
D. SVÁBY
Mr. H.C. KRÜGER, 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 20 December 1993 by
G.W. against Sweden and registered on 4 January 1994 under file No.
23175/94;
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 South Africa, born in 1966. Currently
he is staying in Stockholm. Before the Commission he is represented by
Mr. Leif Rydberg, a lawyer at Bergshamra.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
Particular circumstances of the case
The applicant entered Sweden on 29 September 1991. On
30 September 1991 he requested asylum. In his asylum request the
applicant claimed that on 7 September 1991 his parents had been murdered
in their home in Soweto by supporters of the rival political movement,
the Inkatha. The applicant tried to defend his parents by attacking one
of the supporters. The reason for the murder was allegedly that the
applicant's father had been an active member of the African National
Congress (hereinafter the "ANC"). Moreover, in 1991 the father had killed
two supporters of the Inkatha during violent clashes in Soweto.
In the asylum investigation the applicant stated that he himself had
not been politically active, but, as he had attacked a supporter of the
Inkatha in order to defend his parents, he could not go back to South
Africa for fear of being killed by the Inkatha. Allegedly, the Inkatha
supporters had returned to the house of the applicant's parents to look
for him soon after their murder.
On 11 February 1993 the National Immigration Board (statens
invandrarverk) rejected the asylum request and found no grounds for
granting the applicant a residence permit. The Board observed that
violence occurs between members of the ANC and the Inkatha, but noted
that the applicant himself had not been politically active within the
ANC. Thus, any action of revenge from the Inkatha would be highly
unlikely. Also, having regard to the time which had elapsed from the
alleged murder of his parents, the Board considered the applicant's fears
of persecution to be significantly exaggerated. Finally, the Board
considered that participation in fights between rival groups was not
normally a reason for granting asylum.
The applicant appealed to the Aliens Appeals Board (utlännings-
nämnden), submitting that traditionally a son is considered to belong to
the same organisation as his father. As a son is obliged to take revenge
for the murder of his father, the Inkatha supporters will also wish to
kill the applicant. The South African authorities allegedly support or
tolerate violent actions by the Inkatha against ANC members.
The applicant's appeal was rejected on 8 July 1993. The Board
considered that the fact that the applicant did not request asylum
immediately upon his arrival in Sweden affected the credibility of his
alleged reasons for seeking asylum. Moreover, the applicant had entered
Sweden using someone else's passport which he had destroyed after passing
the passport control. As the applicant had not himself been politically
active and in view of the time which had elapsed from the alleged murder
of his parents, the applicant's fears of being persecuted on his return
to South Africa were considered significantly exaggerated.
According to a psychiatric report of 1 October 1993, the applicant
is suffering from insomnia, nightmares, anxiety, anorexia,
hallucinations, paranoia, depression and suicidal thoughts. He was
considered to be in need of psychiatric care in an institution, but has
not consented to this "for fear of the police." The report concludes
that, should the applicant's expulsion be enforced, he might attempt to
commit suicide.
Relevant domestic law
Under Chapter 2, Section 5, subsection 3, of the Aliens Act
(utlänningslag 1989:529), a request for a residence permit, lodged by an
alien who is to be refused entry or expelled by a decision which has
acquired legal force, may only be granted provided the request is based
on new circumstances and the applicant is either entitled to asylum or
there are weighty humanitarian reasons for allowing him to stay in
Sweden.
An alien who has been refused entry or who is to be expelled may
never be conveyed to a country where there is firm reason to believe that
he would be in danger of being subjected to capital or corporal
punishment or torture, or to a country where he is not protected from
being sent to a country where he would be in such danger (Chapter 8,
Section 1).
When a refusal of entry or an expulsion order is put into effect,
the alien may, in principle, not be sent to a country where he would risk
being persecuted, or to a country where he would not be protected from
being sent on to a country where he would risk being persecuted (Chapter
8, Section 2, subsection 1). The exceptions to this rule are not relevant
in the present case.
If the enforcement is not subject to any obstacles under, inter
alia, Chapter 8, Sections 1 and 2, an alien who has been refused entry,
or who is to be expelled, is to be sent to his country of origin or, if
possible, to the country from which he came to Sweden. If the decision
cannot be put into effect in the manner indicated in subsection 1, or
there are other special grounds for doing so, the alien may be sent to
some other country instead (Chapter 8, Section 5).
When considering a request for a residence permit lodged by an alien
to be expelled according to a decision which has acquired legal force,
the National Board of Immigration (and in certain cases the Government
too) may stay execution of that decision. For particular reasons, the
Board may also otherwise stay execution (Chapter 8, Section 10).
If the enforcing authority finds that enforcement cannot be carried
out or that further information is needed, the authority is to notify the
National Board of Immigration accordingly. In such a case, the Board may
decide on the question of enforcement or take such other measures as are
necessary (Chapter 8, Section 13).
COMPLAINTS
The applicant complains of his imminent expulsion to South Africa,
where he fears being persecuted by supporters of the Inkatha. He submits
that he was a member of the ANC and participated in demonstrations
against the Inkatha. Allegedly, his father had hidden weapons to be used
against the Inkatha without ever informing the applicant of their hiding-
place. The Inkatha supporters, however, are said to believe that the
applicant is aware of the arms cache and will therefore attempt to
extract information about it if they find him.
The applicant further refers to his present mental state as an
obstacle to his expulsion.
No particular provision of the Convention is invoked.
THE LAW
The applicant complains of his imminent expulsion to South Africa,
where he fears persecution from supporters of the Inkatha. He further
refers to his present mental state as an obstacle to his expulsion.
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."
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 (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 to give rise to a breach of Article 3
(Art. 3) (ibid., p. 37, para. 111).
Turning to the present case and notably to the applicant's fears of
persecution by Inkatha supporters, the Commission observes that the
applicant's present submissions are inconsistent with those previously
made before the Swedish authorities. For instance, in the asylum
investigation he stated that he had never been politically active,
whereas before the Commission he claims to have been an ANC member and
to have participated in demonstrations. Moreover, before the Swedish
authorities he never referred to the risk he now describes to the
Commission of Inkatha supporters attempting to extract information from
him about his father's arms cache. These inconsistencies affect the
credibility of the applicant's submissions to the Commission.
In these circumstances the Commission cannot find that substantial
grounds have been established for believing that the applicant would, on
account of his background, be exposed to a real risk of being subjected
to treatment contrary to Article 3 (Art. 3) of the Convention on his
return to South Africa.
As regards the applicant's mental state, the question could be
raised whether, having regard to the psychiatric report of 1 October
1993, the applicant's expulsion would involve such a trauma for him that
it could amount to a violation of Article 3 (Art. 3) of the Convention
(cf. Eur. Court H.R., Cruz Varas and others judgment of 20 March 1991,
Series A no. 201, p. 31, paras. 83-84).
The Commission notes, however, that under Swedish law a further
request for asylum or a residence permit may be lodged with reference to
new circumstances (cf. No. 20547/92, Dec. 15.2.93, unpublished). However,
the psychiatric report has not been invoked by the applicant in support
of such a request.
In these circumstances, 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 to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy