AS TO THE ADMISSIBILITY OF
Application No. 35557/97
by Aphram KORKIS and 6 Others
against Sweden
The European Commission of Human Rights sitting in private on
18 May 1998, the following members being present:
MM S. TRECHSEL, President
J.-C. GEUS
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
H. DANELIUS
L. LOUCAIDES
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
Mrs M. HION
Mr R. NICOLINI
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 29 October 1995
by Aphram KORKIS and 6 Others against Sweden and registered on 25 April
1997 under file No. 35557/97;
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 applicants - father, mother and five children - are Syrian
citizens. The father, Aphram Korkis, was born in 1937 and the mother,
Silva Chabo, in 1956. Their children - Haytham, Meriana, Lilian,
Natali and Margareta - were born in 1981, 1983, 1987, 1989 and 1994,
respectively. Before the Commission they are represented by
Mr Hans Engström, a lawyer practising in Skärholmen.
The facts of the case, as submitted by the applicants, may be
summarised as follows.
On 30 April 1987 the parents and Haytham, Meriana and Lilian
arrived in Sweden. They applied for asylum, claiming that the father,
being a medical doctor, risked persecution from the security police and
retaliation from a bedouin family. They were given permanent residence
permits on 25 January 1989. For personal reasons they returned to
Syria in July 1989 together with Natali, who had been born in Sweden.
They came back to Sweden on 28 December 1991, almost two and a half
years later. At that time, the question arose whether to revoke their
residence permits, as it was doubtful whether the family could be
considered resident in Sweden. The applicants stated that they had not
intended to move from Sweden but that, for various reasons, they had
had to stay in Syria longer than planned. On 27 November 1992, after
having investigated the matter, the National Immigration Board (Statens
invandrarverk) decided not to revoke the permits.
On 18 July 1993 the family travelled again to Syria. About a
year later - on 7 July 1994 - the father entered Sweden together with
the two eldest children, Haytham and Meriana. He applied for social
welfare assistance as, allegedly, he was not able to support himself
and the children. The other family members - including Margareta who
had been born in Syria - remained in Syria where they lived in the
family home.
By decision of 20 September 1994, the Immigration Board revoked
the residence permits for the mother, Lilian and Natali as their
residence in Sweden was considered to have ended. The Board also
requested the police authorities to investigate the family's situation.
Heard by the police, the father stated that, in July 1993, the family
had travelled to Syria for a short visit but that, owing to illness in
the family, it had been necessary for them to stay for a much longer
period of time. He claimed that he had no income or place to live in
Syria and that the children had become accustomed to living in Sweden.
He stated further that only by paying large bribes had the family been
able to avoid reprisals in Syria.
On 13 October 1994, invoking family ties and previous residence,
the mother and the three youngest children applied for Swedish
residence permits. On 29 October they arrived in Sweden.
By decision of 19 January 1995, the Immigration Board revoked the
residence permits for the father and the two eldest children. The
Board noted that, after having been granted residence permits in
January 1989, they had lived in Syria for three and a half years.
Furthermore, the father had not had any employment in Sweden.
Consequently, their permits should be revoked as they could not be
considered to have settled in Sweden and as the father's fears of
reprisals in Syria lacked credibility. By the same decision, the Board
rejected the applications lodged by the mother and the three youngest
children, finding that they had no longer any family ties to Sweden and
that there were no other grounds for granting them residence permits.
The Board ordered the deportation from Sweden of all the family members
and issued a two-year prohibition on their return.
The applicants appealed to the Aliens Appeals Board (Utlännings-
nämnden). They stated that the children had become accustomed to
living in Sweden and had attended school in the country. Allegedly,
the children refused to return to Syria and the two eldest children had
threatened to commit suicide if they were deported. The applicants
reiterated also that their visits to Syria had been prolonged because
of family reasons and unforeseen events. Further, during the second
visit in 1993/94, the mother had had a miscarriage and then later had
become pregnant again. They maintained that the family's safety in
Syria and their exit visas had been secured through bribes and that,
upon return, the father would face prosecution for his Christian-
Communist views.
By decision of 5 September 1995, agreeing with the findings of
the Immigration Board, the Aliens Appeals Board rejected the appeal.
The applicants avoided deportation by going into hiding. Fresh
applications for residence permits were rejected by the Appeals Board
on 4 October 1995 and 17 January 1996. On 28 January 1996 the
applicants lodged another application. They submitted a statement made
by the archbishop of the Syrian-Orthodox church in Sweden, according
to which the family would be in great danger if they returned to Syria.
A further document submitted by the applicants allegedly confirmed that
an arrest order concerning the father had been issued by the
intelligence service of the Syrian army. The applicants also adduced
a certificate from the Children's Psychiatric Clinic (Barn- och
ungdomspsykiatriska mottagningen) in Södertälje stating that Haytham,
Meriana and Lilian gave the impression of being depressed and that, in
the long run, there was a considerable risk that their mental health
would be impaired. The applicants claimed that, having regard to their
long stay in Sweden, the deportation of the children would constitute
a violation of the United Nations Convention on the Rights of the
Child.
On 30 January 1996 the Appeals Board stayed the enforcement of
the deportation order. On 3 July 1996 it referred the latest
application to the Government. Mainly relying on the reasons given in
previous decisions and adding that, due to the continued journeys
between Syria and Sweden, the responsibility for the children's
situation rested with their parents, the Appeals Board recommended that
the application be rejected.
By decision of 24 October 1996, agreeing with the reasons given
by the immigration authorities in their respective decisions and
finding that the applicants had invoked no new circumstances, the
Government rejected the referred application.
Another application for residence permits was lodged by the
applicants on 7 November 1996 and dismissed by the Appeals Board on
13 November. In its decision, the Board noted that the family had
returned to Syria on 10 November.
COMPLAINTS
The applicants contend that their deportation from Sweden
constitutes a violation of Articles 3, 8 and 12 of the Convention.
They refer to the fact that the parents and the three eldest children
arrived in Sweden already on 30 April 1987 and state that, on account
of their prolonged stay and schooling in Sweden, the children have
become part of Swedish society. They speak Swedish fluently whereas
most of them have difficulties in speaking Arabic. Allegedly, their
education is not recognised in Syria, partly due to their status as
Christian refugees. Furthermore, as shown by the certificate from the
Children's Psychiatric Clinic and other statements invoked before the
Swedish authorities, there were medical and social reasons not to
deport the family to Syria. The family's journeys to Syria should not
be decisive; instead their situation at the time of the deportation is
to be taken into account. The applicants also maintain that, upon
return to Syria, they have encountered serious difficulties of a
religious and political character.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 29 October 1995. The
applicants requested the Commission to petition the Government of
Sweden to stay their deportation from Sweden.
On 31 October 1995 the President of 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 applicants.
On 4 November 1996 the applicants again requested the Commission
to secure a stay of their deportation. On 8 November the President of
the Commission rejected the request.
Following further correspondence with the applicants, the
application was registered on 5 April 1997.
THE LAW
The applicants contend that their deportation from Sweden
constitutes a violation of Articles 3, 8 and 12 (Art. 3, 8, 12) of the
Convention, which read as follows.
Article 3 (Art. 3):
"No one shall be subjected to torture or to inhuman or
degrading treatment or punishment."
Article 8 (Art. 8):
"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 and morals, or for the protection of the rights and
freedoms of others."
Article 12 (Art. 12):
"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."
The Commission recalls that Contracting States have the right to
control the entry, residence and expulsion of aliens (cf., e.g., Eur.
Court HR, Vilvarajah and Others v. the United Kingdom judgment of
30 October 1991, Series A no. 215, p. 34, para. 102). However, an
expulsion decision may give rise to an issue under Article 3 (Art. 3)
of the Convention, and hence engage the responsibility of the State,
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 or she is expelled (ibid., p. 34, para. 103). A mere possibility
of ill-treatment is not in itself sufficient (ibid., p. 37, para. 111).
Furthermore, ill-treatment must attain a minimum level of severity if
it is to fall within the scope of Article 3 (Art. 3). The assessment
of this minimum is relative; it depends on all the circumstances of the
case, such as the nature and context of the treatment, the manner and
method of its execution, its duration, its physical or mental effects
and, in some instances, the sex, age and state of health of the victim
(cf., e.g., Eur. Court HR, Cruz Varas and Others v. Sweden judgment of
20 March 1991, Series A no. 201, p. 31, paras. 83-84).
The Commission recalls further 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).
In the present case, the Commission first notes that, except for
the allegation that the family has encountered serious difficulties of
a religious and political character upon their return to Syria on
10 November 1996, the applicants have not invoked, before the
Commission, that the father or the other members of the family risk
treatment contrary to Article 3 (Art. 3) of the Convention in Syria.
Instead, they have claimed that the deportation of the children from
Sweden, as such, constitutes a violation of that Article on account of
their long stay in Sweden and their integration into Swedish society.
Nevertheless, the Commission will take into account the submissions
made to the Swedish authorities as to the risk of ill-treatment in
Syria.
In this respect, the Commission has regard to the applicants'
statements that the father will face prosecution for his Christian-
Communist views and that an order to arrest him has been issued by the
intelligence service of the Syrian army. Furthermore, according to the
archbishop of the Syrian-Orthodox church in Sweden, the family will be
in great danger in Syria. It is recalled, however, that,
notwithstanding these alleged threats to the father's and the family's
safety, the applicants have returned to Syria for longer periods of
time, almost two and a half years between July 1989 and December 1991
and about a year between July 1993 and - respectively - July 1994 (as
regards the father and the two eldest children) and October 1994 (with
respect to the other family members). Not disregarding the
explanations given by the applicants, the Commission finds, in these
circumstances, that their fears cannot be considered credible. In any
event, the applicants have failed to show that they face a real risk
of treatment contrary to Article 3 (Art. 3) of the Convention in Syria.
In regard to the children's situation, the Commission notes that
they have spent a major part of their lives in Sweden and, with the
exception of Margareta, have attended school in the country. However,
notwithstanding their mental state at the time of their departure from
Sweden as evidenced, inter alia, by the certificate from the Children's
Psychiatric Clinic, the Commission finds that their difficulties in
returning to Syria were not such that the decision to deport them could
be considered as ill-treatment attaining the minimum level of severity
required under Article 3 (Art. 3) of the Convention. In this
connection, the Commission has further regard to the fact that their
stay in Sweden was prolonged for a considerable time due to their
parents' failure to comply with the deportation order.
With respect to the applicants' complaint under Article 8
(Art. 8) of the Convention, the Commission recalls that the National
Immigration Board's deportation order of 19 January 1995 and the
subsequent decisions by the Aliens Appeals Board and the Government
concerned all the family members. Moreover, on 10 November 1996, they
all left Sweden for Syria. Thus, no decisions taken by the Swedish
authorities have had the effect of splitting up the family.
Consequently, the decisions have not interfered with the applicants'
right to respect for their family life under Article 8 (Art. 8).
Finally, the Commission, noting that the applicants have
submitted no arguments in respect of their complaint under Article 12
(Art. 12) of the Convention, finds that there is no evidence of a
violation of this provision.
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, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M. de SALVIA S. TRECHSEL
Secretary President
to the Commission of the Commission
Full & Egal Universal Law Academy