SUR LA RECEVABILITÉ
Application No. 23761/94
by Yusuf, Sabriye and Edibe KÜLEN
against Sweden
The European Commission of Human Rights sitting in private
on 14 April 1994, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
A. WEITZEL
F. ERMACORA
A.S. GÖZÜBÜYÜK
J.-C. SOYER
H.G. SCHERMERS
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 21 March 1994
by Yusuf, Sabriye and Edibe KÜLEN against Sweden and registered
on 28 March 1994 under file No. 23761/94;
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 first and the second applicant are husband and wife and
the third one is their daughter. They were born in 1930, 1934 and
1977, respectively and are all Turkish citizens. They are
currently residing in Stockholm. Before the Commission they are
represented by Mr. Leif Rydberg, a lawyer at Bergshamra.
The facts of the case, as submitted by the applicants, may
be summarised as follows.
The applicants are Assyrian Christians from Idil in the
province of Sirnak in the southeast of Turkey. Two of the first
and the second applicant's sons are lawfully resident in Sweden.
One of them received Swedish citizenship in 1993. Two further
sons are resident in Switzerland. The first applicant also has
three siblings who appear to be resident in Sweden.
The first applicant suffers from heart problems and
diabetes.
In 1986 and 1990 the applicants requested a residence permit
in Sweden in order to join the first applicant's mother there.
This was refused.
On 6 November 1991 the applicants were granted a short-term
visa for entering Sweden in order to attend the funeral of the
first applicant's mother.
On 2 December 1991 the applicants requested asylum,
alternatively a residence permit in Sweden. The first applicant
alleged that in 1986 he had, under a threat of being killed, been
forced to assist members of the Kurdish Workers' Party ("the
PKK") in transporting weapons. In May 1989 he had been arrested
together with some five other inhabitants of Idil. He claimed to
have been tortured by the military in Diyarbakir, suspected of
having assisted the PKK in smuggling weapons. He had allegedly
been beaten with a truncheon and wooden sticks as a result of
which one of his toes had been broken. He had been released after
fifteen days.
In the asylum investigation the first applicant further
stated that as from the autumn of 1989 up to the summer of 1991
he had been arrested on three further occasions, each time for
a few days. During the first of these arrests he had allegedly
been assaulted and during the second one again tortured. In
connection with his release after the third arrest he had been
informed by the military in Mardin that it had no evidence
against him and that the military in Diyarbakir had also been
informed accordingly. Subsequently the first applicant had
refused to assist the PKK, who had then allegedly extorted money
from him on five occasions under the threat of otherwise killing
him unless he would comply with their demands. Following his
refusal to comply with a sixth request for money he had received
a death threat by mail. He had turned to the police, but in vain.
The applicants had then decided to leave Idil.
On 29 October 1992 the National Immigration Board (statens
invandrarverk) rejected the applicants' request. The Board mainly
noted the indication by the military that it had no evidence
against the first applicant and that this information had also
been conveyed to the military in Diyarbakir. The Board therefore
found no reason to believe that the first applicant would be
persecuted by the authorities if returned to Turkey. The
harassment to which he had been subjected by members of the PKK
was not such as to warrant the granting of asylum to the
applicants. Finally, their family ties with Sweden in the form
of the first and second applicant's two sons were not considered
so strong as to warrant the granting of residence permits.
On 5 February 1993 the Aliens Appeals Board
(utlänningsnämnden) upheld the decision of the National
Immigration Board.
In a further request for a residence permit lodged in 1993
the applicants also referred to their Christian belief. They also
stated that their property in Idil had been taken by the Kurds.
This request was rejected by the National Immigration Board
on 8 June 1993. The Board found that the general situation of
Christians in Turkey did not warrant the granting of asylum to
the applicants. Neither was the alleged deprivation of their
possessions considered as persecution supported by the Turkish
Government.
A further request by the applicants for a residence permit
was rejected by the National Immigration Board on 14 September
1993.
In October 1993 the applicants requested the Supreme
Administrative Court (Regeringsrätten) to re-open the proceedings
before the Aliens Appeals Board, referring to the fact that
certain documents submitted by them in the asylum proceedings had
not been translated. This request was apparently rejected.
In December 1993 the applicants lodged a yet further request
for a residence permit, referring, inter alia, to an incident in
November 1993 when Turkish military forces burned down a village
near Idil inhabited largely by Christians. They also referred to
their allegedly difficult mental state.
This request was rejected by the National Immigration Board
on 19 January 1994, considering that no new circumstances had
been shown in the case.
COMPLAINTS
The applicants complain that their impending expulsion to
Turkey would violate Articles 2, 3, 5, 8, 9, 10 and 14 of the
Convention. They fear further persecution in that country on
account of their Christian belief and assert that persecution of
Christians is wide-spread there, as Turkey is a Muslim-dominated
country. The applicants refer, in particular, to the death threat
by the PKK directed against the first applicant and to the
alleged deprivation by the PKK of their belongings in Turkey.
The applicants finally refer to the fact that two of the
first and second applicant's sons are lawfully resident in
Sweden.
THE LAW
The applicants complain about their impending expulsion to
Turkey. They fear further persecution there on account of their
Christian belief. They also refer to the fact that two of the
first and the second applicant's sons are lawfully resident in
Sweden. They invoke Articles 2, 3, 5, 8, 9, 10 and 14 (Art. 2,
3, 5, 8, 9, 10, 14) of the Convention.
(a) The Commission has first 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., p. 34, 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).
The Commission concludes, on the evidence before it
concerning both the applicants' individual background and the
general situation in Turkey, that it has not been established
that there are substantial grounds for believing that they would
be exposed to a real risk of being subjected to treatment
contrary to Article 3 (Art. 3) of the Convention, if expelled to
that country. In reaching this conclusion, the Commission also
notes that the State which is to receive the applicants is a
member of the Council of Europe and has accepted the right of
individual petition in accordance with Article 25 (Art. 25) of
the Convention.
It follows that this complaint must be rejected as being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
(b) The Commission has next considered the application as far
as the applicants' family ties to Sweden have been invoked. It
has examined this complaint under Article 8 (Art. 8) of the
Convention, which reads:
"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 considers that the refusal to grant the
applicants a residence permit in Sweden raises the question
whether there has been a lack of respect for their family life.
It recalls that the notion of "respect" enshrined in Article 8
(Art. 8) of the Convention is not clear-cut. This is the case
especially where the positive obligations implicit in that
concept are concerned. Its requirements will vary considerably
from case to case according to the practices followed and the
situations obtaining in the Contracting States. In determining
whether or not such an obligation exists, regard must be had to
the fair balance that has to be struck between the general
interest and the interests of the individual, as well as to the
margin of appreciation afforded to the Contracting States (Eur.
Court H.R., B. v. France judgment of 25 March 1992, Series A no.
232-C, pp. 47 et seq., paras. 44 et seq.).
The Commission further recalls that in the field of
immigration "Contracting States enjoy a wide margin of
appreciation in determining the steps to be taken to ensure
compliance with the Convention with due regard to the needs and
resources of the community and of individuals". A State's
obligation to admit to its territory foreign relatives of its
citizens will vary according to the particular circumstances of
the persons involved. Moreover, "as a matter of well-established
international law and subject to its treaty obligations, a State
has the right to control the entry of non-nationals to its
territory" (Eur. Court H.R., Abdulaziz, Cabales and Balkandali
judgment of 28 May 1985, Series A no. 94, pp. 33-34, para. 67).
The Commission finally recalls that the existence or not of
family life falling within the scope of Article 8 (Art. 8) will
depend on a number of factors and on the circumstances of each
particular case (e.g. No. 12402/86, Dec. 9.3.88, D.R. 55 p. 224).
Turning to the present case, the Commission considers that
it has not been established that those of the first and the
second applicant's sons who are resident in Sweden would in any
way be dependent on them or that the applicants would be
dependent on their sons. Thus, the applicants' relationship with
them cannot be regarded as "family life" within the meaning of
Article 8 (Art. 8).
In the above circumstances, the duties imposed by Article
8
(Art. 8) of the Convention cannot be considered as extending to
an obligation on the part of Sweden to grant the applicants a
residence permit (cf., mutatis mutandis, the above-mentioned
Abdulaziz, Cabales and Balkandali judgment, p. 34, para. 68). The
Commission concludes, therefore, that there has been no lack of
respect for their family life.
It follows that this complaint must also be rejected as
being manifestly ill-founded, within the meaning of Article 27
para. 2
(Art. 27-2) of the Convention.
(c) Finally, the Commission finds no appearance of any violation
of Articles 2, 5, 9, 10 or 14 (Art. 2, 5, 9, 10, 14) of the
Convention.
It follows that the complaints relating to these Articles
must also 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