AS TO THE ADMISSIBILITY OF
Application No. 22198/93
by Enver LLULLAKU and Family
against Finland
The European Commission of Human Rights (First Chamber) sitting
in private on 1 December 1993, the following members being present:
MM. A. WEITZEL, President
C.L. ROZAKIS
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
Mrs. M.F. BUQUICCHIO, 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 13 May 1993 by
Enver LLULLAKU and family against Finland and registered on 12 July
1993 under file No. 22198/93;
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 applicants, E., S., V., V., A. and S. L., are husband, wife
and four minor children born in 1963, 1966, 1986, 1987, 1990 and 1993,
respectively. They are Kosovo-Albanian Muslims and apparently all
citizens of the Federal Republic of Yugoslavia. They are presently
staying at a refugee centre at Vaasa, Finland. Before the Commission
they are represented by Mr. Sami Basota, Kerava, Finland.
The applicants arrived in Finland from Norway on
15 September 1990, having been refused asylum in Norway, where they had
arrived in September 1987. In Norway a further family member was born
and in Finland yet another one. The applicants' two asylum requests
in Finland were rejected on 10 January and 19 March 1991.
On 29 March 1991 the applicants went to Sweden, where their
asylum requests were also refused, most recently on 18 December 1991.
On 20 December 1992 the applicants re-entered Finland. A further
asylum requests were refused by the Ministry of the Interior
(sisäasiainministeriö, inrikesministeriet) on 24 March 1993. The
applicants were further ordered to be removed to Sweden. The decision
was served on the applicants on the same day and their removal was to
take place by ferry to Sweden on the next day. However, in order to
avoid their removal to Sweden the applicants on 25 March 1993 left by
car for Norway, where the youngest child was born on 27 March 1993.
The brother of the husband joined them on this trip. He was expelled
from Norway to the Federal Republic of Yugoslavia soon after their
arrival in Norway.
The applicants re-entered Finland on 3 May 1993 and again lodged
new asylum requests. These are apparently still pending.
COMPLAINTS
1. The applicants complain that, owing to their ethnic origin, they
will suffer ill-treatment by Serbian officials, if returned to Kosovo
in the Federal Republic of Yugoslavia. Although their return is likely
to be enforced by Swedish or Norwegian authorities, they consider their
removal from Finland as a de facto expulsion, having regard to their
previous unsuccessful asylum requests in the other Nordic countries.
The husband refers, in particular, to his political activities
in the "Marxist-Leninist Union" in Pristina. He would distribute
leaflets and paint slogans in public places calling for independence
for Kosovo. These activities could render him six years' imprisonment.
Due to these activities he was arrested twice, in 1981 and 1982, and
because of his participation in a demonstration in 1981 he was banned
from the public school. When serving in the federal army in 1984-85
he was arrested and assaulted. The final reason for leaving Kosovo in
1987 was that he had been warned by a relative that he was sought for
by the police.
Moreover, upon his expulsion from Norway, the brother of the
husband was robbed by Macedonian police officers and handed over to
Serbian police officers, who assaulted him during six hours.2. The
applicants also complain that they were forced to leave Finland by
travelling 1,300 kilometres in a car in March 1993 despite medical
opinions indicating that the wife was in a state of final pregnancy.
The applicants invoke mainly Articles 2 and 3 of the Convention
in respect of both complaints.
THE LAW
1. The applicants complain that they will suffer ill-treatment, if
returned to Kosovo in the Federal Republic of Yugoslavia, owing to
their ethnic origin and the first applicant's past political activities
there. They consider their imminent removal from Finland as a de facto
expulsion to the Federal Republic of Yugoslavia, having regard to their
previous unsuccessful asylum requests in Norway and Sweden.
The Commission has examined the complaint 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 the Contracting States have the
right, as a matter of well-established international law and subject
to their treaty obligations including Article 3 (Art. 3), 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 (ibid.,
p. 37, para. 111).
The examination of the present case involves, on the one hand,
the applicants' personal situation and, on the other, the general
situation in Kosovo. The Commission finds that the general situation
in Kosovo at present is not such that an expulsion to that region would
as such amount to a violation of the Convention or any of its Protocols
(e.g. No. 22199/93, Dec. 21.10.93, not published). In order to raise
an issue under Article 3 (Art. 3) of the Convention the existence of
a specific risk of treatment contrary to that provision should
therefore be substantiated in relation to the individual concerned.
As far as the first applicant's alleged political activities are
concerned the Commission observes that the applicants left Kosovo
already in 1987. Consequently, the relevance of those activities for
the first applicant's present risk of treatment contrary to Article 3
(Art. 3) if returned to the Federal Republic of Yugoslavia is
necessarily reduced. The first applicant has, thus, failed to
substantiate his allegation that he is presently being wanted by
authorities in Kosovo.
Moreover, the alleged ill-treatment of the first applicant's
brother cannot suffice to establish that the first applicant himself
or any of the other applicants would be in a particular situation of
risk.
The Commission concludes, on the evidence before it concerning
the applicants' background and the general situation in the Federal
Republic of Yugoslavia, that it has not been established that there are
substantial grounds for believing that the applicants would there 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. This
being the Commission's conclusion, it is not necessary to determine the
possible responsibility of Finland for the returning of the applicants
to their country of origin by actions of Swedish or Norwegian
authorities (cf. the above-mentioned No. 22199/93).
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.
2. The applicants also complain of having been "forced" to leave
Finland under unacceptable circumstances due to the wife's late stage
of pregnancy.
The Commission notes that the applicants had been informed by the
police that their removal from Finland was to take place by ferry on
the day after they had been served the removal order. The wife's
suffering as caused by the applicants' lengthy journey to Norway by car
was, however, an effect of their own decision to attempt to avoid
execution of the removal order.
In these circumstances the Commission sees no issue under
Article 3 (Art. 3) of the Convention or any other provision of the
Convention or its Protocols.
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.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (A. WEITZEL)
Full & Egal Universal Law Academy