AS TO THE ADMISSIBILITY OF
Application No. 22508/93
by R.B. 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
F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
Mr. H.C. KRÜGER, Secretary to the Commission
Mr. M. de SALVIA, Deputy 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 23 August 1993 by
R.B. and family against Finland and Sweden and registered on 23 August
1993 under file No. 22508/93;
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, R., I., M. and R.B., are husband and wife born
in 1964 and two minor children, born in 1988 and 1990. They are Muslims
and citizens of the Federal Republic of Yugoslavia and come from Novi
Pazar in the region of Sandzak, Serbia, which has about 300,000
Muslims. Presently they are staying in Finland, where they are
represented before the Commission by Mrs. Kristina Stenman, a lawyer
of the Refugee Advice Centre at Vaasa.
Particular circumstances of the case
The husband left the Federal Republic of Yugoslavia on 11 March
1992 allegedly after he had been called up to serve in the federal army
and searched for by the police. Allegedly he was later called up a
second time to report for "military exercises" on 15 July 1992.
The husband entered Sweden on 17 March 1992 and immediately
requested asylum. The rest of the family arrived on 14 May 1992 and
requested asylum on 18 May 1992.
The requests were refused by the National Immigration Board
(statens invandrarverk) on 14 August 1992 and by the Aliens Appeals
Board (utlänningsnämnden) on 28 May 1993.
The Immigration Board considered that, as far as it was informed,
the Serbian authorities do not take measures against Yugoslav citizens
who return to the Federal Republic of Yugoslavia after having evaded
the draft for whatever reason. The tension between the ethnic groups
in that country was not considered sufficient for the granting of
asylum or a residence permit on humanitarian grounds.
The Aliens Appeals Board largely upheld this reasoning and
further considered that religious tension was not sufficient to warrant
the granting of a residence permit on humanitarian grounds. The Board
noted that the husband had been drafted both during and after the so-
called mobilisation phase. Nevertheless, he did not run a risk of ill-
treatment upon return. The Board further considered that the Federal
Yugoslav Army was not involved in any war.
On 26 June 1993 the applicants arrived in Finland, where they
again applied for asylum. This request was rejected by the Ministry of
the Interior (sisäasiainministeriö, inrikesministeriet) on 12 August
1993, stating:
(translation from Finnish)
"The applicants have entered Finland from another Nordic State.
They have invoked no such grounds for the granting of residence
permits as stated in section 20 of the Aliens Act. [Nor have
they] invoked any particular grounds as required under section
32, subsection 3 ... showing that the country from which they
arrived is not safe for them.
The Ministry ... considers that the applicants may be returned
to Sweden without running any risk of there being subjected to
inhuman treatment or persecution referred to in section 30 ...,
or of being expelled from there to any such area."
The applicants were notified of the decision on 23 August 1993,
following which they were to be immediately removed to Sweden.
The applicants appealed to the Supreme Administrative Court
(korkein hallinto-oikeus, högsta förvaltningsdomstolen), where the case
is still pending.
Relevant domestic law
Chapter 1, section 1, subsection 1, of the 1991 Finnish Aliens
Act (ulkomaalaislaki 378/91, utlänningslag 378/91) provides that this
Act, any provisions of a lower rank and international treaties by which
Finland is bound shall be applied to aliens' entry into and departure
from Finland. The preparatory works to the Act underline the binding
character of applicable human rights treaties and prescribes that these
shall be duly considered in the application of domestic law (Bill No.
47/90, p. 7).
An alien may be granted asylum if, owing to a well-founded fear
of persecution for reasons of his race, religion, nationality,
membership of a particular social group or political opinion, he has
left his country of origin or permanent residence and if, due to such
fear, he does not wish to avail himself of the protection of that
country (chapter 5, section 30, subsection 1).
An alien may be refused asylum if he has previously stayed in a
country which has acceded to the Convention Relating to the Status of
Refugees, or if he has stayed in another safe country where he has
applied, or has had an opportunity to apply, for asylum (subsection 2,
para. 3).
Asylum may also be refused if, according to the 1958 Treaty
between Denmark, Finland, Iceland, Norway and Sweden Concerning the
Waiver of Passport Control at the Intra-Nordic Frontiers (sopimus
passintarkastuksen poistamisesta pohjoismaisilla rajoilla, överens-
kommelsen om upphävande av passkontrollen vid de internordiska
gränserna), another signatory to the Convention is obliged to readmit
the alien (subsection 2, para. 4).
An alien who has not been granted asylum, but is nevertheless
deemed unable to return safely to his country of origin or habitual
residence, may be issued a residence permit in Finland in view of his
need for protection (section 31, as amended by Act no. 639/93).
An alien who has entered Finland without a residence permit may
be granted a fixed-term residence permit if he is in need of protection
or if there are strong humanitarian or other particular reasons for
issuing such a permit (chapter 3, section 20, subsection 1, para. 3).
An asylum request may be immediately rejected if the asylum
seeker has entered Finland from another Nordic country, or from a
country to which he may be returned having regard to chapter 6, section
38, subsection 2, provided no grounds exist for issuing him with a
residence permit under chapter 3, section 20, and provided that he
cannot show any specific grounds for considering the country in
question unsafe for him (chapter 5, section 32, subsection 3, as added
by Act no. 639/93).
Asylum requests are decided by the Ministry of the Interior. The
Aliens' Ombudsman shall be given an opportunity to be heard, unless
this would be clearly unnecessary (section 33).
If the Ministry in its decision concludes that an asylum request
is manifestly unfounded, it must request an opinion from the Chairman
or Deputy Chairman of the Asylum Appeals Board (turvapaikkalautakunta,
asylnämnden). If this opinion also concludes that the request is
manifestly unfounded, there is no appeal against the Ministry's
decision (section 34, as amended by Act no. 639/93).
No one may be returned to an area where he may be subjected to
inhuman treatment or such persecution as referred to in section 30, or
to an area from which he could be sent on to another such area
(chapter 6, section 38, subsection 2, as amended by Act no. 639/93).
An alien who considers that a refusal of entry has infringed his
rights may appeal to the Supreme Administrative Court (chapter 8,
section 58, as amended by Act no. 639/93). A refusal of entry may,
however, be enforced regardless of an appeal (section 62, as amended
by Act no. 639/93).
Under Article 10 of the 1958 Treaty a Contracting State
undertakes to readmit an alien to its territory from that of another
Contracting State if the alien has entered the latter directly from the
former without a valid passport or a special permit.
COMPLAINTS
1. The applicants complain against Finland that, if they are
returned to the Federal Republic of Yugoslavia, they risk ill-treatment
in view of the first applicant's evasion from service in the federal
Yugoslav army and their Muslim origin. They refer to a letter of August
1992 from a lawyer in their home town according to which charges have
been brought against the first applicant for draft evasion. They
further allege harassment because of their Muslim origin and submit
that the situation of Muslims in the region of Sandzak is particularly
difficult. The husband allegedly had to stop working because of
harassment at his workplace. The applicants refer to a statement by the
Embassy in Sweden of the Republic of Bosnia and Herzegovina according
to which Bosnians from Sandzak can be granted Bosnian citizenship on
request.
As the applicants will be removed to Sweden, where their asylum
request was already rejected, the Finnish removal order constitutes a
de facto expulsion of the applicants to the Federal Republic of
Yugoslavia. The applicants invoke Article 3 of the Convention.
2. In their submissions of 7 October 1993 the applicants also
complain against Finland of the lack of an effective remedy against the
removal order, as their appeal to the Supreme Administrative Court has
no suspensive effect. There is also no appeal against the refusal of
entry. They invoke Article 13 of the Convention.
3. In their submissions of 7 October 1993 the applicants also direct
their complaint under Article 3 of the Convention against Sweden.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced and registered on 23 August 1993.
On the same day the Acting President of the Commission decided to bring
the complaint under Article 3 of the Convention to the notice of the
Finnish Government and to invite them to submit written observations
on its admissibility and merits. He further decided, pursuant to
Rule 36 of the Commission's Rules of Procedure, to indicate to the
Finnish Government that it was desirable in the interests of the
parties and the proper conduct of the proceedings not to remove the
applicants to Sweden until the Commission had had an opportunity to
examine the application.
On 8 September 1993 the Commission prolonged the indication under
Rule 36 until 22 October 1993.
The Government's observations were submitted on 17 September 1993
and the applicants' observations in reply on 7 October 1993.
THE LAW
1. The applicants complain that their removal to Sweden will
constitute a de facto expulsion to the Federal Republic of Yugoslavia
in view of their previous unsuccessful asylum requests in Sweden. They
submit that, if returned to the Federal Republic of Yugoslavia, they
risk ill-treatment in view of the first applicant's evasion from
military service and their Muslim origin. They invoke Article 3
(Art. 3) of the Convention, which reads:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
The Finnish Government recognise that the applicants' pending
appeal to the Supreme Administrative Court is not a remedy with
suspensive effect. They submit, however, that the refusal of entry was
made in accordance with the Aliens Act and was in no way arbitrary. It
was based on the fact that the applicants had arrived in Finland from
Sweden, where they had already requested asylum. The husband's draft
evasion as such, and even the imposition of a criminal sanction for
that offence, do not constitute sufficient reasons for granting the
applicants asylum. A mere possibility of ill-treatment in the
circumstances presently prevailing in the Federal Republic of
Yugoslavia is not in itself sufficient to give rise to a violation of
Article 3 (Art. 3). As Sweden has agreed to readmit the applicants and
the applicants will, from there, not be returned to an area where they
would risk treatment contrary to Article 3 (Art. 3), their removal can
be carried out. The Government cannot be held responsible for measures
affecting the applicants at a later stage in Sweden.
Finally it is contended that, even if Finland could be held
responsible for the applicants' final return to the Federal Republic
of Yugoslavia, the Government have no reason to doubt the lawfulness
and appropriateness of the Swedish decisions refusing the applicants
asylum. No substantial grounds have been shown for believing that the
applicants would thereby risk being exposed to treatment contrary to
Article 3 (Art. 3). Should, subsequently, obstacles arise to the
applicants' return, they have the possibility to lodge a new asylum
request in Sweden.
The applicants contend that there is a real risk that they would
be subjected to treatment contrary to Article 3 (Art. 3) if returned
to the Federal Republic of Yugoslavia via Sweden, having regard both
to the general situation in the region of Sandzak, Serbia, from where
they come and their individual circumstances. They consider themselves
ethnic Bosnians. Following the dissolution of the Socialist Federal
Republic of Yugoslavia the family was subjected to humiliating
treatment entailing, inter alia, the use of a derisive nickname. The
first applicant evaded military service because he would surely have
had to serve in the federal Yugoslav army in the war against Croatia
and later Bosnia-Herzegovina, that is against his own people. In order
to evade the call-up the husband went into hiding. When Serbian
officials visited the applicants' home searching for him they treated
the other family members in a threatening and brutal manner.
The applicants further submit that the refusal of entry into
Finland was based exclusively on the fact that the applicants had
entered the country from Sweden. Under chapter 6, section 38,
subsection 2, of the 1991 Aliens Act, however, the Finnish authorities
must also examine the substance of an asylum request before refusing
entry and issuing a removal order, so as to comply with the principle
of non-refoulement transformed into Finnish law. Given that the
applicants' asylum requests in Sweden have already been rejected, their
immediate expulsion to the Federal Republic of Yugoslavia is beyond all
reasonable doubt. The decision to remove the applicants to Sweden
contains no conditions regarding their possible expulsion from that
country.
The applicants underline that the Vilvarajah judgment of the
European Court of Human Rights (Eur. Court H.R., Vilvarajah and Others
judgment of 30 October 1991, Series A no. 215) was based on a general
improvement of the situation in the receiving country. It cannot
therefore be derived from this case-law that the general situation in
a receiving country could never be such as to constitute a real risk
of treatment contrary to Article 3 (Art. 3). The present situation in
Sandzak is most precarious. The region of Sandzak forms part of Serbia
and about 300.000 Muslims live there. Bosnia-Herzegovina considers the
Muslims to be Bosnians and is prepared to grant citizenship to them.
Partly for this reason, there have been gross human rights violations
by the Serbs in Sandzak.
The applicants submit that in 1992 criminal proceedings were
being conducted against 2000 ethnic Muslims in Sandzak who had evaded
military service in the federal Yugoslav army. The United Nations High
Commissioner for Refugees has called for careful examination of asylum
requests by draft evaders. No information is available regarding the
outcome of the criminal proceedings instituted against the husband. No
amnesty appears, however, to have been accepted for those who have
evaded military service. Having regard to the ongoing "Serbification"
of Serbia and Montenegro, it cannot be excluded that such Muslims would
be subjected to severe punishments and prison conditions. Should the
husband be imprisoned on the applicants' return, this would render the
situation of the other family members extremely vulnerable.
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 (the above-mentioned Vilvarajah and Others judgment, 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 Sandzak. The Commission finds that the general situation
in Sandzak 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 allegations
of possible ill-treatment of other family members 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 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 this part of the application must be rejected as
being manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
2. In their submissions of 7 October 1993 the applicants also
complain of the lack of an effective remedy against the removal order,
as their appeal to the Supreme Administrative Court has no suspensive
effect. There is also no appeal against the refusal of entry. They
invoke Article 13 (Art. 13) of the Convention, which reads:
"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."
In view of its above conclusion with regard to the complaint
under Article 3 (Art. 3) of the Convention, the Commission considers
that the applicants have no "arguable claim" of a breach of this
provision which warrants a remedy under Article 13 (Art. 13) (cf. Eur.
Court H.R., Boyle and Rice judgment of 27 April 1988, Series A no. 131,
pp. 23-24, paras. 52-54).
It follows that this part of the application must also be
rejected as being manifestly ill-founded within the meaning of Article
27 para. 2 (Art. 27-2) of the Convention.
3. In their submissions of 7 October 1993 the applicants also direct
their complaint under Article 3 (Art. 3) of the Convention against
Sweden, relying on the same arguments. The Commission does not
consider it necessary to determine under Article 25 (Art. 25) whether
the applicants may at this stage claim to be a "victim" of a violation
of the Convention by Sweden. In view of its conclusions above with
regard to the complaint under Article 3 (Art. 3) directed against
Finland, the Commission considers that the same reasoning applies
equally to the complaint against Sweden, given the information
presently available to the Commission.
It follows that this part of the application 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, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NORGAARD)
Full & Egal Universal Law Academy