AS TO THE ADMISSIBILITY OF
Application No. 32530/96
by O.H.S. and G.R.
against Finland
The European Commission of Human Rights (First Chamber) sitting
in private on 21 May 1997, the following members being present:
Mrs. J. LIDDY, President
MM. E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs. M. HION
Mr. R. NICOLINI
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 29 July 1996 by
O.H.S. and G.R. against Finland and registered on 6 August 1996 under
file No. 32530/96;
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 are Iraqi citizens of Kurdish origin, born in 1963
and 1956, respectively. The first applicant is living in Kirkuk, Iraq,
while the second applicant is resident in Tampere, Finland. Before the
Commission they are represented by Mr Daryl Taylor, a language teacher
and translator in Helsinki.
The facts of the case, as submitted by the applicants, may be
summarised as follows.
The second applicant arrived in Finland on 19 December 1993,
holding an Iraqi passport and a visa issued by the Finnish authorities
with a view to enabling her to visit her brother. On 4 January 1994 she
requested asylum, alternatively a residence permit on humanitarian
grounds. As her Iraqi passport was about to expire, the Finnish police
apparently urged her to request that the Iraqi Embassy extend its
validity. She considered, however, that any contact with the Iraqi
authorities would endanger herself and other family members, in
particular as she had crossed the Iraq-Turkey border without the Iraqi
authorities' permission.
On 7 November 1994 the second applicant was granted a one-year
residence permit (with status A 10) and on 28 March 1995 she was
granted an alien's passport. In Finnish law such a passport may be
issued if an alien is unable to obtain a passport from the authorities
of his or her country of citizenship or if another particular reason
warrants the granting of an alien's passport. In the second applicant's
case the authorities relied on the latter grounds.
The validity of both the second applicant's residence permit and
her alien's passport has later been extended. Under Finnish law an
alien, who has been living in Finland for two consecutive years holding
an "A" status residence permit, is eligible for a permanent permit
unless the purpose of his or her stay calls for different
considerations.
The applicants and their families have a long history of mutual
association. They were practically neighbours and their fathers were
close friends for 50 years. The first applicant's sister is married to
the second applicant's brother. The applicants had been likely marriage
candidates long before the second applicant's arrival in Finland. A
widow since 1991, the second applicant's mother was opposed to the
applicants' marriage until her death in 1993. Also for other practical
family reasons the applicants' marriage could not be planned to take
place until 1995.
On 19 July 1995 the second applicant re-entered Iraq allegedly
at considerable personal risk in order to marry the first applicant in
Kirkuk, which is located in the so-called Kurdish area of the country.
The applicants contracted marriage on 25 July 1995, following which the
second applicant returned to Finland. On behalf of her husband she then
lodged a request for a residence permit with the Finnish Embassy in
Ankara, Turkey.
The Embassy requested an opinion from the Aliens Department
(ulkomaalaisvirasto, utlänningsverket) which heard the Security Police
(suojelupoliisi, skyddspolisen). In its opinion of 22 January 1996
the Security Police noted that it had no information concerning the
applicants which would be of any importance from the point of view of
state security. It noted, however, that when requesting asylum in 1994
the second applicant had stated that she was a single woman; that,
having left Iraq via the Kurdish part of the country, she would face
difficulties if she were to return to Iraq; that she had nevertheless
contracted marriage there in 1995; but that, judging from the entry
stamps in her passport she could only have spent some six days with her
future husband before their marriage. The Security Police therefore
suspected that the applicants' marriage was not a genuine one but
rather had been contracted so as to enable the first applicant to enter
Finland.
On 2 February 1996 the Aliens Department issued a negative
opinion concerning the first applicant's request for a residence
permit. It noted that in the asylum interview the second applicant had
stated that as an unmarried woman she could not live alone in Iraq but
wished to live with her brother in Finland. Moreover, she had stated
that she was unable to return to Iraq, given that she had left the
country via "Kurdistan" for Turkey.
The first applicant's request was subsequently refused by the
Embassy, basing itself on the Aliens Department's opinion. No appeal
lay against the refusal.
The first applicant's sister and nephew live in Finland. In
addition to one of her brothers the second applicant's eight nephews
and nieces also live in Finland. The second applicant's two further
brothers enjoy refugee status in Germany and Sweden, respectively.
COMPLAINTS
1. The applicants complain that the refusal to issue the first
applicant with a residence permit in Finland amounts to a violation of
their right to respect for their family life and their right to marry
and found a family. The applicants' place of origin is internationally
recognised as a source of refugees. Given their particular ethnic and
family background, it would be unreasonable to require them to
establish family life in Iraq, where the various persecution allegedly
facing them would be further exacerbated by the fact that the second
applicant has lived for a long time in a Western country. By granting
the second applicant an alien's passport the Finnish authorities
accepted that she could not safely and openly return to Iraq. Such a
passport would hardly be accepted by a third country as a basis for
long-term residence. Therefore, and having regard to the permanent
character of the second applicant's residence in Finland, this country
remains the only country where the applicants can live together as a
family.
The applicants furthermore submit that the Finnish authorities'
suspicion that the applicants' marriage is not genuine is based on
cultural bias and deeply offensive. According to Islamic tradition, the
most important element in a marriage is the consent and co-operation
of the respective families. The applicants were designated as marriage
candidates by their respective fathers long before the second
applicant's arrival in Finland in 1994. The Finnish authorities did not
properly investigate the genuine character of the applicants' marriage,
although a large of number of relatives of theirs are resident in
Finland. The second applicant strongly desires to bear children but is
approaching the age when this will no longer be possible. Apart from
the resultant anxiety her health has also been negatively affected by
the manner in which her husband's request for a residence permit was
dealt with. The applicants invoke Articles 3, 8, 9, 12 and 14 of the
Convention.
2. The applicants also complain about the lack of a remedy within
the meaning of Article 13 of the Convention against the Embassy's
refusal to issue the first applicant with a residence permit.
THE LAW
1. The applicants complain that the refusal to issue the first
applicant with a residence permit in Finland amounts to a violation of
their right to respect for their family life and their right to marry
and found a family. They invoke Articles 3, 8, 9, 12 and 14
(Art. 3, 8, 9, 12, 14) of the Convention.
(a) The Commission will first examine 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."
Ill-treatment must attain a minimum level of severity if it is
to fall within the scope of Article 3 (Art. 3) of the Convention.
Further, the suffering occasioned must attain a certain level before
treatment can be classified as inhuman. The assessment of that minimum
is relative and depends on all the circumstances of the case, such as
the duration of the treatment and its physical or mental effects (see,
e.g., Eur. Court HR, Ireland v. the United Kingdom judgment of 18
January 1978, Series A no. 25, p. 65, para. 162).
The decision of a Contracting State to expel a person 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 faces a real risk of being subjected to torture or to inhuman
or degrading treatment or punishment in the receiving country. In such
circumstances Article 3 (Art. 3) implies the obligation not to expel
the person in question to that country (see, e.g., Eur. Court HR,
Vilvarajah and Others v. the United Kingdom judgment of 30 October
1991, Series A no. 15, p. 34, paras. 102-103).
The Commission notes that in July 1995 the second applicant left
Finland for a brief visit to Iraq, following which she returned to
Finland. There is no indication that she was the object of the Iraqi
authorities' interest during that visit. Nor have the applicants
substantiated their allegation that they would face persecution by the
Iraqi authorities, should they choose to take up family life in their
country of origin.
The Commission would furthermore observe that immigration
measures taken against one member of a family will inevitably entail
effects on the existing relationship with other members of that family.
Therefore an issue would be likely to arise under Article 3 (Art. 3)
only in exceptional circumstances (for example, where there is a
substantiated level of intense physical and mental suffering as a
direct result of the implementation of the immigration measure). Where,
however, the essence of the complaint is the impact of an immigration
measure on family relationships, the matter is more appropriately to
be examined under Article 8 (Art. 8) of the Convention (see, e.g. No.
26985/95, Dec. 15.5.96, unpublished).
In these circumstances the Commission does not consider that the
applicants' situation discloses treatment proscribed by Article 3
(Art. 3) of the Convention.
It follows that this part of the application must be rejected as
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
(b) The Commission has next considered the complaint under Article 8
(Art. 8) of the Convention which provides as relevant:
"1. Everyone has the right to respect for his private and
family life...
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."
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 into its territory. The extent of a State's obligation
to admit to its territory relatives of settled immigrants will vary
according to the particular circumstances of the persons involved and
the general interest. Where immigration is concerned, Article 8
(Art. 8) cannot be considered to impose on a State a general obligation
to respect immigrants' choice of the country of their matrimonial
residence and to authorise family reunion in its territory (see, e.g.,
Eur. Court HR, Gül v. Switzerland judgment of 19 February 1996, Reports
1996-I, pp. 174-175, para. 38 and Ahmut v. the Netherlands judgment of
28 November 1996, para. 71, to be published in Reports 1996). Whether
removal or exclusion of a family member from a Contracting State is
incompatible with the requirements of Article 8 (Art. 8) will depend
on a number of factors such as whether there are insurmountable
obstacles to taking up family life in another country (cf., e.g., No.
11333/85, Dec. 17.5.85, D.R. 43, p. 227).
In the present case the Commission recalls that the applicants
married in July 1995 when the second applicant, though having been
granted a temporary right of abode in Finland, could not yet expect to
be granted a permanent residence permit. She must accordingly be taken
to have been aware of her precarious immigration status at the time.
It is true that the "A" status of her residence permit would seem to
have indicated to her that she would later be eligible for a permanent
permit. It has not been substantiated, however, that she has been
actually granted such a permit. As this can nevertheless be assumed,
the Commission will take her permanent and lawful residence in Finland
into account.
The Commission nevertheless observes that the applicants are
currently living apart as a result of the second applicant's conscious
decision to settle in Finland rather than remain in Iraq. Above the
Commission has found no indication that her possible return to Iraq
would subject her to a real risk of being treated contrary to Article 3
(Art. 3) of the Convention.
The Commission furthermore notes that the applicants had been
likely marriage candidates long before the second applicant's arrival
in Finland in December 1993. Nevertheless, when requesting asylum or
a residence permit in January 1994 (ie. after the death of her mother,
who had been opposed to the marriage) the second applicant made no
reference to the marriage plans. On the contrary, she underlined that
as an unmarried woman she could not live alone in Iraq but wished to
live with her brother in Finland.
In the overall circumstances of this case the Commission
therefore finds that the Finnish authorities have reasonably been
entitled to refuse the first applicant a residence permit. It follows
that this refusal does not disclose a lack of respect for the
applicants' rights to family or private life as guaranteed by Article 8
para. 1 (Art. 8-1) of the Convention.
It follows that this part of the application must also be
rejected as manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
(c) The Commission finds no further issue under Articles 9, 12 or 14
(Art. 9, 12, 14) of the Convention.
It follows that this part of the application must also be
rejected as manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
2. The applicants also complain about the lack of a remedy within
the meaning of Article 13 (Art. 13) of the Convention against the
Embassy's refusal to issue the first applicant with a residence permit.
Article 13 (Art. 13) reads as follows:
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy
before a national authority notwithstanding that the
violation has been committed by persons acting in an
official capacity."
The Commission recalls that an applicant, who is found to have
no "arguable claim" that another Convention provision has been
violated, is not entitled to a remedy under Article 13 (Art. 13) (see,
e.g., Eur. Court HR, Powell and Rayner v. the United Kingdom judgment
of 21 February 1990, Series A no. 172, pp. 14-15, paras. 31-33 and p.
20, para. 46). The concept of an arguable claim nevertheless falls to
be determined having regard to the particular facts of the case and the
nature of the legal issues raised (cf., e.g., Eur Court HR, Plattform
"Ärzte für das Leben" v. Austria judgment of 21 June 1988, Series A
no. 139, p. 11, para. 27).
In view of its findings above in regard to the applicants' first
complaint the Commission concludes that they had no "arguable claim"
of a breach of any of the provisions invoked therein which would have
entitled them to a remedy under Article 13 (Art. 13). Accordingly,
there is no appearance of any violation of this provision either.
It follows that this part of the application must also be
rejected as 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.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy