AS TO THE ADMISSIBILITY OF
Application No. 22199/93
by M.A. and family
against Finland and Sweden
The European Commission of Human Rights sitting in private on
21 October 1993, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
A. WEITZEL
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
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 4 June 1993 by
M.A. and family against Finland and Sweden and registered on 12 July
1993 under file No. 22199/93;
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 M., Z., L. I. and V. A. are husband, wife and
three minor children, born in 1960, 1959, 1988, 1989 and 1992,
respectively. They are of Kosovo-Albanian origin and citizens of the
Federal Republic of Yugoslavia. Their present whereabouts are unknown.
Before the Commission they are represented by Mr. Sami Basota, Kerava,
Finland.
The applicants entered Sweden on 3 September 1991 and immediately
requested asylum. On 10 August 1992 the National Immigration Board
(statens invandrarverk) rejected the requests, considering that the
husband's political activity as a local leader of the "Democratic
Union" had not been such as to subject him to a risk of being
persecuted or punished upon return. His party had been allowed in
Kosovo and his activities had not been of any extensive character.
Moreover, the Federal Republic of Yugoslavia was not a country at war
and no general mobilisation was taking place there.
On 18 March 1993 the Aliens' Appeals Board (utlänningsnämnden)
upheld the decision despite a draft order issued by the federal army
and submitted to the Appeals Board by the applicants. Before the
Appeals Board the applicants had further stated that police had
searched for the husband on several occasions. The Appeals Board
considered that draft evaders were running very little risk of being
prosecuted and that, in any case, the husband's possible sentence could
not be a sufficient ground for granting asylum.
The applicants entered Finland on 28 March 1993 and immediately
requested asylum or residence permits. On 23 April 1993 the requests
were rejected by the Ministry of the Interior (sisäasiainministeriö,
inrikesministeriet).
On 24 June 1993 the Ministry of the Interior ordered the
applicants to be removed from Finland to Sweden. The decision was
served on the applicants on 30 July 1993.
The applicants' removal from Finland to Sweden was carried out
on 22 September 1993.
COMPLAINTS
The applicants complain against Finland that their removal from
that country to Sweden will result in ill-treatment once they are
returned to the Federal Republic of Yugoslavia. Given that their return
from Sweden to that country is most probable in view of their previous
unsuccessful asylum requests in Sweden, the applicants regard their
removal as a de facto expulsion to the Federal Republic of Yugoslavia.
They also direct their application against Sweden.
The applicants refer to their ethnic origin as a reason for the
feared ill-treatment in the Federal Republic of Yugoslavia. The husband
further fears persecution and punishment for having evaded the draft
as well as for having been active in the "Democratic Union". He
submits that the punishment for draft evasion could be execution. The
wife alleges that she will be punished, possibly by being raped by
Serbian officials, for having left the country together with her
husband. The applicants mainly invoke Articles 2 and 3 of the
Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 4 June 1993 and registered on
12 July 1993.
On 20 August 1993 the President of the Commission decided to
apply Rule 36 of the Rules of Procedure of the Commission, having found
that it was desirable not to remove the applicants from Finland to
Sweden until the Commission had had an opportunity to examine the case
further. The President further requested the Government of Finland to
submit certain information.
On 27 August 1993 the Finnish Government submitted the
information requested.
On 8 September 1993 the Commission decided to revoke the
President's indication under Rule 36.
THE LAW
(a) The applicants primarily complain against Finland of their
removal to Sweden, alleging that the removal would constitute a de
facto expulsion to the Federal Republic of Yugoslavia, where they risk
being subjected to ill-treatment owing to their ethnic origin and the
husband's and the wife's past activities in Kosovo.
The Commission has 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 the 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., 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. In order to raise an issue under Article 3 (Art. 3) of the
Convention there should accordingly be some substantiation of the
existence of a specific risk of treatment contrary to that provision.
In the present case such particular circumstances might be that
the husband has evaded military service. The Commission does not,
however, consider it established that he would risk capital punishment
for that offence if returned to the Federal Republic of Yugoslavia. No
question therefore arises under Article 1 of Protocol No. 6 (P6-1) to
the Convention. Concerning his possible imprisonment for the offence,
the Commission does not find such a penalty so severe as to raise an
issue under Article 3 (Art. 3) of the Convention (cf. No. 12364/86,
Dec. 17.10.86, D.R. 50 p. 280; No. 11017/84, Dec. 13.3.86, D.R. 46 p.
176; No. 21576/93, Dec. 10.9.93 and No. 22325/93, Dec. 8.9.93,
unpublished).
The Commission further finds no substantiation of the husband's
allegation of possible ill-treatment on account of his past political
activities nor of the wife's allegation of possible ill-treatment upon
their return to the Federal Republic of Yugoslavia.
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 from Sweden 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
authorities.
It follows that the application in this respect must be rejected
as being manifestly ill-founded, within the meaning of Article 27 para.
2 (Art. 27-2) of the Convention.
(b) In so far as the application is directed against Sweden, the
Commission does not at this stage consider it necessary to determine
under Article 25 (Art. 25) whether the applicants can claim to be a
"victim" of a violation of the Convention by that country. It refers
to its conclusions above with regard to the application as directed
against Finland and considers that same reasoning applies equally to
the application as directed against Sweden, given the information
presently available to the Commission.
It follows that the application also in this respect 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, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy