AS TO THE ADMISSIBILITY OF
Application No. 23521/94
by Aleksander MILIC, Snezana MILIC
and Marija MILIC
against Sweden
The European Commission of Human Rights (Second Chamber) sitting
in private on 5 July 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 11 December 1993
by Aleksander MILIC, Snezana MILIC and Marija MILIC against Sweden and
registered on 22 February 1994 under file No. 23521/94;
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 facts of the case, as submitted by the applicants, may be
summarised as follows.
The applicants are husband and wife and their daughter. They are
of Serbian origin and citizens of the Federal Republic of Yugoslavia.
The husband was born in 1962, his wife in 1965 and their daughter in
1986. Before the Commission they are represented by their lawyer,
Mr. Leif Rydberg.
The first applicant performed his military service in the former
Yugoslav army from October 1982 to September 1983. As from 1986 he was
employed at a factory in Smed Palanka, Serbia, where also his wife was
employed. On 16 September 1991 he was called to participate in a
military manoeuvre close to the Bosnian border, lasting until
21 September 1991. The soldiers feared that they were to be transferred
to the front and they managed to negotiate a leave on the condition
that they would be ready for a possible mobilisation of the army. In
order to avoid such mobilisation the first applicant left for Sweden
on 29 September 1991. He arrived there on 1 October 1991. About 10 days
later the military authorities came to his house in order to hand over
a call-up order addressed to him. However, his wife refused to sign in
her husband's name and the authorities left again with the order. The
wife also began to feel insecure as she was allegedly being harassed
by colleagues, her employer, friends and neighbours due to her
husband's flight. She therefore decided to leave the country with her
daughter and arrived in Sweden on 20 November 1991.
In support of their applications for asylum in Sweden the
applicants submitted in particular that the first applicant would be
subject to a severe punishment, maybe even execution, for desertion.
He also feared being sent to the front. Moreover, the first and second
applicants referred to the fact that they had both been dismissed from
their jobs.
On 9 March 1993 the National Immigration Board (statens
indvandrarverk, "SIV") rejected the applications and ordered the
applicants' expulsion. The SIV found it established that the first
applicant did not run a risk of being punished upon return to
Yugoslavia. Neither would he run a risk of being sent to an area
suffering from armed conflict. The SIV furthermore found that the first
and second applicants had lost their jobs due to the fact that they had
left the country and not because of political persecution or
harassment.
The applicants' appeal against this decision was rejected by the
Aliens Appeals Board (utlänningsnämnden) on 16 November 1993. In its
decision the Board stated:
(translation)
"(The first applicant) has left his country in order to avoid
being called up for military service. According to what is known
to the Board the sanction (the first applicant) risks for his
failure to appear for military service is not such that it would
be a reason for granting asylum. Furthermore, (the first
applicant) does not risk being sent to an area struck by armed
conflict since the regular Yugoslav army is not involved in acts
of war.
The harassment to which the family furthermore maintains it will
be subjected is not of such a character that this would entitle
(the family) to asylum... ."
The applicants are at present hiding somewhere in Sweden in order
to avoid the deportation.
COMPLAINTS
The applicants complain that the first applicant risks being
sentenced to fifteen years' imprisonment or even execution for
desertion upon return to Yugoslavia. Moreover, they maintain that a new
law has been passed depriving deserters of a trial prior to their
conviction. The first applicant also fears to be enrolled in the
Yugoslav army and having to fight in the war in Bosnia-Hercegovina.
Finally, the applicants maintain that they will be harassed and
persecuted if returned. They invoke Article 3 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 11 December 1993 and registered
on 22 February 1994. By letter of 25 January 1994 the applicants
requested the Commission to stay their deportation until their
application had been examined. On 1 February 1994 the President of the
Commission decided not to indicate to the Government of Sweden,
pursuant to Rule 36 of the Commission's Rules of Procedure, the measure
suggested by the applicants.
THE LAW
The applicants complain that, if expelled to Yugoslavia, the
first applicant risks being sentenced to a maximum of fifteen years'
imprisonment or even execution for desertion. They furthermore fear
persecution and harassment upon return. They invoke 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 (ibid., p. 37, para. 111).
The Commission does not consider it established that the first
applicant would risk capital punishment for desertion if returned to
Yugoslavia. No question therefore arises under Article 1 of Protocol
No. 6 (P6-1) to the Convention. Even assuming the applicant would risk
imprisonment for that offence, the Commission does not find such a
possible penalty to be so severe as to raise an issue under Article 3
(Art. 3) of the Convention and the applicants have failed to submit
evidence of any special circumstances which could lead the Commission
to a different conclusion (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 and 21576/93,
Dec. 10.9.93; No. 22325/93, Dec. 8.9.93; No. 22508/93, Dec. 21.10.93;
No. 22509/93, Dec. 21.10.93, unpublished).
The Commission further finds no substantiation as regards the
allegations of persecution or harassment of the applicants upon their
return to Yugoslavia and their complaints in this respect thus disclose
no appearance of a violation of Article 3 (Art. 3) of the Convention.
Moreover, the Commission recalls from its case-law mentioned above that
Chapter 8, Section 1 of the Aliens Act (utlänningslagen) imposes an
absolute obligation on the enforcement authority in Sweden to refrain
from expelling an alien should the human rights situation in the
receiving country constitute a firm reason to believe that he, or she,
would be in danger of being subjected to capital or corporal
punishment, or torture, in that country.
In view of the above, the Commission finds no substantiation of
the applicants claim that they would be exposed to a real risk of being
subjected to treatment contrary to Article 3 (Art. 3) of the Convention
on their return to Yugoslavia.
In these circumstances 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, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy