AS TO THE ADMISSIBILITY OF
Application No. 18417/91
by Nebil and Maryem KÜCÜKASLAN
against Sweden
The European Commission of Human Rights (Second Chamber) sitting
in private on 2 December 1992, the following members being present:
MM. S. TRECHSEL, President of the Second Chamber
G. JÖRUNDSSON
A. WEITZEL
J.-C. SOYER
H. G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
MM. F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
Mr. K. ROGGE, Secretary to the Second 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 28 March 1991 by
Nebil and Maryem KÜCÜKASLAN against Sweden and registered on
26 June 1991 under file No. 18417/91;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to the observations submitted by the respondent
Government on 6 May 1992 and the observations in reply submitted by the
applicant on 31 August and 20 November 1992;
Having deliberated;
Decides as follows:
THE FACTS
The first applicant, born in 1968, is a Turkish and the second
applicant, born in 1970, is a Swedish citizen. The applicants are
husband and wife and reside at Norsborg. Before the Commission they are
represented by Mr. Hans Engström, a lawyer practising at Skärholmen.
The facts of the case, as submitted by the parties, may be
summarised as follows.
Particular circumstances of the case
The first applicant came to Sweden in the beginning of 1988. He
is a Christian Syrian-Orthodox. The second applicant arrived in Sweden
as a young girl; her family are Syrian-Orthodox refugees from Turkey.
From 1989 the applicants have lived together and on 24 November 1990
they married.
On 2 February 1988 the first applicant's Turkish passport
expired, as he had not performed military service in Turkey. The
passport cannot be renewed before he has performed that service.
On 23 April 1988 the first applicant requested a residence and
work permit in Sweden, referring to his forthcoming military service
in Turkey and his having testified as a witness in the trial of a
muslim and member of the Kurdish Workers' Party ("PKK") suspected of
having murdered a person in the first applicant's home town in 1982.
The person convicted had subsequently escaped from prison and intended
to kill the first applicant in retaliation for his testimony. That
person had also previously been engaged in persuading Orthodox
Christian youths to join the PKK, those refusing to do so having been
killed. Most Christians had, therefore, left the Midyat area.
On 14 September 1988 the National Immigration Board (statens
invandrarverk) refused the request, finding that the political reasons
involved were not sufficient to consider the first applicant a refugee
under Section 3 of the 1980 Aliens Act (utlänningslag 1980:376).
Moreover, the circumstances did not warrant granting him permission to
stay in accordance with Section 6. Finally, as the requirements of
Section 33 of the 1980 Aliens Ordinance (utlänningsförordning 1980:373)
were not met he could not be granted a residence permit (see Relevant
domestic law below). Accordingly, he was ordered to be expelled and
prohibited from returning before 1 October 1990.
On 3 May 1989 the Government rejected his appeal.
On 12 June 1989 the police authority of Huddinge ordered that the
first applicant be detained for the purposes of enforcing the expulsion
order. He could, however, not be found.
In a petition of 2 August 1989 to the police authority he
requested a stay of execution of the expulsion order and that the
matter be referred to the National Immigration Board. He referred to
a detention order issued by a Turkish military court.
On 11 August 1989 the police authority quashed its detention
order and referred the matter to the National Immigration Board, which
on 23 January 1990 referred it to the Government.
On 30 August 1990 the Government found that there were no
obstacles to the first applicant's expulsion to Turkey.
On 18 October 1990 the first applicant again requested a stay of
execution of the expulsion order.
On 29 October 1990 the National Immigration Board, considering
the petition also as a new request for a residence permit, rejected
this as well as the request for a stay of execution.
On 14 January and 12 March 1991 the National Immigration Board
rejected his further requests for a residence permit. It further found
no reason to suspend the enforcement of the expulsion order.
On 26 June 1991 the first applicant lodged a fresh request for
a residence permit, referring, inter alia, to a report by the Swedish
Embassy in Turkey on persecution of Syrian-Orthodox Christians.
On 20 December 1991 he was granted a permanent residence permit
in Sweden.
Relevant domestic law
Up to 1 July 1989 the provisions regarding entry and expulsion
of aliens were contained in the 1980 Aliens Act and the 1980 Aliens
Ordinance.
On 1 July 1989 these statutes were replaced by the 1989 Aliens
Act (utlänningslag 1989:529) and the 1989 Aliens Ordinance (utlännings-
förordning 1989:547).
Under Section 3 of the 1980 Act an alien was not to be refused
asylum in Sweden without weighty reasons, provided he was in need of
such protection. An alien not eligible for refugee status but still in
need of protection was not, unless special reasons warranted a refusal,
to be refused permission to stay, provided he was unwilling to return
to his home country due to the political situation there and alleged
weighty reasons in support of his request (Section 6).
An alien intending to settle in Sweden or to remain there for
more than three months had to obtain a residence permit before entering
the country. An alien having entered Sweden in contravention of this
rule could only under certain circumstances be granted a permit while
in the country or upon an application lodged in the country (Section
33 of the 1980 Ordinance).
PROCEEDINGS BEFORE THE COMMISSION
On 3 April 1991 the applicants requested the Commission to apply
Rule 36 of its Rules of Procedure. This request was rejected by the
President on the same day.
On 12 September 1991 the Rapporteur decided pursuant to Rule 47
para. 2 (a) of the Commission's Rules of Procedure to request further
information from the respondent Government. Following two extensions
of the time-limit the information was submitted by the Government on
25 October 1991. The applicants' comments were submitted on 28 November
1991.
On 6 January 1992 the Commission decided pursuant to Rule 48
para. 2 (b) to invite the Government to submit written observations on
the admissibility and merits of the application. It further decided to
refer the application to the Second Chamber.
Following two extensions of the time-limit the Government's
observations were submitted on 6 May 1992. Following an extension of
the time-limit the applicants' observations in reply were submitted on
31 August and 20 November 1992.
COMPLAINTS
The applicants initially complained that the first applicant, if
expelled to Turkey, would be imprisoned for desertion as well as
possibly persecuted and killed; that, in any case, he would have to
perform "two years of hard military service in a Muslim army"; that the
applicants would be separated possibly for three years or longer, as
the second applicant's family was living in Sweden, she did not speak
Turkish and she would not be granted a residence permit in Turkey. The
first applicant having been granted a permanent residence permit in
Sweden in December 1991 the applicants now complain of their fear of
an enforcement of the expulsion order up to the issuing of that permit.
They invoke Articles 8 and 12 of the Convention.
THE LAW
The applicants initially complained that the first applicant, if
deported to Turkey, would be imprisoned for having deserted from the
Turkish army and possibly persecuted and killed. In any case, he would
have to perform two years of hard military service in a Muslim army.
Finally, the applicants would be separated possibly for three years or
longer. The applicants now complain of their fear of an enforcement of
the expulsion order up to the issuing of a residence permit to the
first applicant. They invoke Articles 8 and 12 (Art. 8, 12) of the
Convention.
Article 8 (Art. 8) reads as follows:
"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."
Article 12 (Art. 12) states:
"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 Government submit that the application is incompatible
ratione personae with the provisions of the Convention, as the
applicants can no longer claim to be "victims" under Article 25
(Art. 25) of the Convention, the first applicant having been granted
a permanent residence permit in Sweden on 20 December 1991. As the
applicants' marriage was brought to the Government's knowledge already
on 14 January 1991 no active steps were taken between that date and
20 December 1991 to have the then valid expulsion order enforced.
The applicants contend that they are still victims within the
meaning of Article 25 (Art. 25) of the Convention. Execution of the
expulsion order was never formally stayed. The first applicant was
wanted by the police in order to have the expulsion order enforced.
Thus, the applicants had lived under a permanent threat of enforcement
of the expulsion order until the issuing of the permanent residence
permit.
Under Article 25 para. 1 (Art. 25-1) of the Convention the
Commission may deal with an application from a person, non-governmental
organisation or group of individuals only if the applicant can claim
to be a victim of a violation, by one of the High Contracting Parties,
of the rights set forth in the Convention or its Protocols.
On the question whether notwithstanding the permanent residence
permit granted to the first applicant the applicants may still claim
to be "victims" under Article 25 para. 1 (Art. 25-1), the Commission
observes that, although the first applicant was subject to expulsion
from Sweden by a decision of the Government made already in 1989, this
order was never enforced. Even accepting that between the issuing of
the expulsion order and the granting of the permanent residence permit
the applicants felt a certain anxiety this effect of the expulsion
order no longer exists, with the result that the applicants can no
longer claim to be victims under the Convention (cf. No. 9856/82, Dec.
14.5.87, D.R. 52 p. 38 [72-73]).
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.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy