AS TO THE ADMISSIBILITY OF
Application No. 22696/93
by Patrick LUMUMBA
against Sweden
The European Commission of Human Rights (Second Chamber) sitting
in private on 12 October 1994, the following members being present:
MM. S. TRECHSEL, President
H. DANELIUS
G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
MM. F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
Mr. K. ROGGE, 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 2 September 1993
by Patrick LUMUMBA against Sweden and registered on 28 September 1993
under file No. 22696/93;
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 applicant is a Kenyan citizen, born in 1959 and currently
serving a prison sentence at Tidaholm, Sweden. He is a boxer by
profession. Before the Commission he is represented by Mr. Carl Magnus
Lilienberg, a lawyer practising in Stockholm.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
Particular circumstances of the case
In the beginning of the 1980s the applicant entered Sweden. In
1981 he was expelled, his request for a residence and work permit
having been rejected. In 1982 the applicant was granted a short-term
residence and work permit and re-entered Sweden. This permit was
subsequently extended. From 1983 to 1990 he lived with a Swedish woman.
In 1985 a daughter was born to them. In 1990 his relationship with the
woman ended and his request for a permanent residence permit in Sweden
was rejected.
In November 1983 the District Court (tingsrätten) of Karlstad
convicted the applicant of assault and violation of domiciliary peace
and sentenced him to one month's imprisonment.
In April 1985 the Svea Court of Appeal (Svea hovrätt) convicted
the applicant of assault and illegal threat and sentenced him to four
months' imprisonment.
In December 1990 the Court of Appeal of Western Sweden (Hovrätten
för västra Sverige) convicted him of drunken driving and driving
without a driving licence and sentenced him to one month's
imprisonment.
On 3 May 1991 the District Court (tingsrätten) of Stockholm
convicted the applicant of assault, malicious damage as well as of
aggravated arson in combination with gross negligent manslaughter and
sentenced him to ten years' imprisonment. The District Court also
issued a deportation order and prohibited him from returning to Sweden.
It considered that in spite of the fact that his daughter was resident
in Sweden his ties to Sweden were not particularly strong. His
knowledge of Swedish was very limited, he had no permanent employment
and no financial means to support himself. On 27 September 1991 the
Svea Court of Appeal confirmed the applicant's conviction, but reduced
the sentence to six years' imprisonment. In maintaining the deportation
order and prohibition on return the Court of Appeal had special regard
to the applicant's criminal behaviour in Sweden, his weak ties to that
country and his lack of permanent employment there. On 8 November 1991
the Supreme Court (Högsta domstolen) refused him leave to appeal.
Subsequently the applicant lodged a petition with the Government,
requesting that the deportation order be revoked or that the
prohibition on his return be of only limited duration. He referred to
his close relationship with his daughter which would be interrupted if
the deportation order would be enforced. On 22 April 1993 the
Government rejected the petition.
The applicant is to be released on parole in November 1994.
Relevant domestic law
Under the 1989 Aliens Act (utlänningslag 529/89) an alien can be
deported on account of his criminal behaviour on certain conditions
prescribed in Chapter 4, Sections 7 and 10. When considering whether
to order an alien's deportation the Court shall take into account his
living and family conditions as well as the duration of his stay in
Sweden (Section 10, subsection 1).
A prohibition on return may be issued either for a certain period
of time or indefinitely (Chapter 4, Section 14). An alien who has been
prohibited from returning to Sweden may, nevertheless, be granted a
permit to visit the country for extremely important purposes. For
particular reasons, such a permit may be granted at the request of
someone other than the alien himself (Section 15).
If a judgment or a decision ordering the deportation of an alien
on account of his criminal behaviour cannot be enforced, the Government
may revoke the judgment or decision either wholly or partly (Chapter 7,
Section 16).
COMPLAINT
The applicant complains that his deportation to Kenya and the
related prohibition on his return to Sweden would, if enforced, violate
his right to respect for his family life. He claims to have a close and
continuous relationship with his daughter. As his relationship with the
mother of his daughter has ended, it is allegedly not possible for his
daughter to follow him to any other country. The enforcement of the
deportation order and the prohibition on return would therefore result
in a permanent disruption of his relationship with his daughter. He
invokes Article 8 of the Convention.
THE LAW
The applicant complains of his imminent deportation to Kenya and
prohibition on return to Sweden and refers to his relationship with his
daughter in the last-mentioned country. He invokes Article 8 (Art. 8)
of the Convention which provides:
"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 recalls that the Contracting States are in
principle free to control the entry, residence and expulsion of aliens.
Expulsion of a person from a country in which close members of his
family live may, however, amount to an unjustified interference with
his right to respect for his family life as guaranteed by Article 8
(Art. 8) of the Convention (e.g., Eur. Court H.R., Moustaquim judgment
of 18 February 1991, Series A no. 193, pp. 19 et seq., paras. 43 et
seq.).
The Commission considers that the applicant's deportation from
Sweden and the related prohibition on his return to that country would
interfere with his right to respect for his family life due to his
relationship with his daughter residing in Sweden. It must next be
examined whether this interference would be justified under the terms
of para. 2 of Article 8 (Art. 8-2). Under that paragraph such an
interference must satisfy three conditions: it must be "in accordance
with the law", it must pursue one or more of the aims enumerated in
para. 2 and it must be "necessary in a democratic society" for that aim
or those aims. The necessity criterion implies the existence of a
pressing social need and, in particular, requires that the measure be
proportionate to the legitimate aim pursued (the above-mentioned
Moustaquim judgment, pp. 18 et seq., paras. 37 et seq.). Regard should
further be had to the margin of appreciation afforded to the
Contracting States (Eur. Court H.R., Berrehab judgment of 21 June 1988,
Series A no. 138, pp. 15-16, para. 28).
The Commission is satisfied that the deportation order was issued
"in accordance with the law". It also considers that the enforcement
of the deportation order would pursue a legitimate aim under Article
8 para. 2 (Art. 8-2), namely the interest of public safety and the
prevention of crime and disorder. As regards the question whether the
interference was "necessary in a democratic society" in pursuit of the
above- mentioned aims, the Commission takes note of the applicant's
criminal record in Sweden. One of his offences must be considered
particularly serious, namely the aggravated arson combined with gross
negligent manslaughter. The Commission further observes that, while the
applicant would, as a general rule, be prohibited from returning to
Sweden following the enforcement of the deportation order, this would
not prevent him or his daughter from applying for a short-term permit
enabling him to visit her there.
Taking into account the margin of appreciation left to the
Contracting States, the Commission concludes that the enforcement of
the deportation order would be justified under Article 8 para. 2
(Art. 8-2) of the Convention in that it can reasonably be considered
as "necessary in a democratic society" in pursuance of the above-stated
aims. Accordingly, the enforcement of the deportation order would not
violate Article 8 (Art. 8).
It follows that 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, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy