AS TO THE ADMISSIBILITY OF
Application No. 28071/95
by Fatih SACIC
against Sweden
The European Commission of Human Rights (Second Chamber) sitting
in private on 11 April 1996, the following members being present:
Mrs. G.H. THUNE, Acting President
MM. H. DANELIUS
G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
Ms. M.-T. SCHOEPFER, 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 22 October 1993
by Fatih Sacic against Sweden and registered on 31 July 1995 under file
No. 28071/95;
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 applicant, may be
summarised as follows.
The applicant, born in 1940, is from Novi Pazar which is situated
in the Serbian part of the Sandzak region. He is a muslim. According
to the passport he possessed upon arrival in Sweden he is a citizen of
the former Republic of Yugoslavia. At present he resides with his wife
at Valdemarsvik, Sweden. In the proceedings before the Commission the
applicant is represented by Mr. Thomas Wasteson, a lawyer practising
at Linköping, Sweden.
The applicant gave up a post as director of a transport company
in 1986. Subsequently, he worked as a lawyer in Novi Pazar, Serbia. In
1991 he allegedly participated in the creation of the Party for
Democratic Action (hereinafter the SDA) in the area. Due to his
affiliation to the SDA he and his wife were harassed by Serbian
soldiers who controlled the area in which they lived and the applicant
considered that he was under constant surveillance. Eventually the
applicant decided to leave Serbia together with his wife as he was
informed that he might be arrested. They arrived in Sweden on
22 June 1992 and applied for asylum with reference to the general
situation in Serbia and to his affiliation to the SDA. The applicant
maintained that he would be persecuted and arrested in Serbia due to
his political activities and since he carried military secrets obtained
while he was director of the transport company. He also referred to his
poor state of health, having suffered a heart attack in 1991.
On 17 September 1993 the National Immigration Authority (Statens
Invandrarverk, the SIV) rejected the applicant's request for asylum.
On the basis of the applicant's submissions the SIV found no reason to
believe that his situation was such that he was entitled to asylum. Nor
was his state of health such that a residence permit should be granted
on humanitarian grounds.
The applicant appealed against the decision to the Aliens Appeals
Board (Utlänningsnämnden). It appears that in the meantime the
applicant's adult son and daughter arrived in Sweden with their
families and obtained residence permits under a special provision
applicable to families with small children. Accordingly, the applicant
maintained, in addition to his previous submissions, that his request
for a residence permit ought to be granted for reasons of family
unification.
The Aliens Appeals Board rejected the applicant's application on
24 January 1995. As regards the applicant's affiliation to the SDA the
Board had obtained information from the Swedish Embassy
(ambassadutredning) according to which the applicant was unknown to the
SDA leadership. Accordingly, the Board found that his political
activity was not such that asylum could be granted. Furthermore, the
request for a residence permit for reasons of family unification was
rejected as provisions to that effect only applied to parents over
sixty. Finally, the Board found no other humanitarian reasons on the
basis of which a residence permit could be granted. A subsequent
application was rejected on 27 October 1995 as it contained no relevant
new information. It appears that the date of enforcement has not yet
been fixed.COMPLAINTS
The applicant complains that he risks torture or inhuman or
degrading treatment if returned to Serbia. He refers in this respect
to Article 3 of the Convention.
Under Article 8 of the Convention the applicant maintains that
an expulsion from Sweden would deny him the possibility to maintain
personal contacts with his children and grandchildren.
Finally, the applicant complains that his requests for asylum
were not examined fairly. He does not invoke any Articles of the
Convention in this respect.
THE LAW
The applicant complains that upon return to Serbia he will be
subjected to treatment contrary to 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 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 (cf. 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 the 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 applicant submits that he will be punished for his political
activities. In his applications to the Swedish immigration authorities,
he has further referred to the general situation in Serbia, in
particular the situation of the muslims living in the Sandzak region.
The Commission finds that the general situation in the Sandzak
region is not of a kind that an expulsion to that part of Serbia would
as such amount to a violation of the Convention or its Protocols. In
order to raise an issue under Article 3 (Art. 3) of the Convention,
there should, accordingly, be some substantiation as to the existence
of a specific risk for the applicant of treatment contrary to that
provision.
However, as to the specific problems alleged by the applicant the
Commission finds that it has not been established that there are
substantial grounds for believing that the applicant would be exposed
to a real risk of being subjected to treatment contrary to Article 3
(Art. 3) of the Convention if returned to Serbia.
Moreover, the Commission recalls that Chapter 8, Section 1 of the
Swedish Aliens Act (Utlänningslagen, 1989:529) 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.
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. The applicant also complains that as his son and daughter and
their families now live in Sweden an expulsion would prevent him from
maintaining a personal contact with them contrary to Article 8
(Art. 8) of the Convention which reads:
"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 Convention does not guarantee a
right to enter or reside in a particular country. However, the
Commission has held that, in view of the right to respect for family
life ensured by Article 8 (Art. 8) of the Convention, the exclusion of
a person from a country in which his or her close relatives reside may
raise an issue under this provision of the Convention (cf., for
example, No. 13654/88, Dec. 8.9.88, D.R. 57 p. 287).
In the present case the Commission notes that the applicant has
not submitted any evidence which could clarify the degree of dependency
which exists between him and his relatives. However, for the purposes
of this case the Commission accepts that the applicant's expulsion may
be considered as an interference with his right to respect for family
life.
The question which then must be examined is whether this
interference was justified under the second paragraph of Article 8
(Art. 8) of the Convention, i.e. whether it was in accordance with the
law, had a legitimate aim and was necessary in a democratic society in
order to achieve the aforesaid aim.
The Commission recalls that the decision of the Swedish
authorities not to grant the applicant a residence permit and to expel
him was taken in accordance with the Aliens Act (Utlänningslagen) which
inter alia aims at regulating the right of aliens to take up residence
in the country.
Having regard to the close connection between the policy of
regulating immigration and considerations pertaining to the economic
well-being of the country and the public order, the Commission
considers that the decision not to grant the applicant asylum and to
expel him was taken in pursuit of legitimate aims within the meaning
of Article 8 para. 2 (Art. 8-2) of the Convention, i.e. the economic
well-being of the country and the prevention of disorder.
What remains is accordingly to examine whether the interference
was "necessary". In this connection the Commission recalls, as already
indicated above, that the Convention does not in principle prohibit the
Contracting States from regulating the entry and length of the stay of
aliens, and the Commission's function is not to pass judgment on
immigration or residence policies as such. It only has to examine the
interference complained of and to weigh the legitimate aims pursued
against the seriousness of the interference with the applicant's right
to respect for his family life (cf. Eur. Court H.R., Berrehab judgment
of 8 March 1985, Series A no. 138, p. 16, para. 29).
In the present case the Commission recalls that when the
applicant applied for asylum in Sweden his application did not concern
a person who already lived there lawfully, but an alien seeking a
permanent residence permit for the first time. His wish to reside
permanently in Sweden was not based on any legitimate expectations, nor
was it based on a request for family unification as he and his wife had
left Serbia leaving the other relatives behind. Furthermore, it appears
that the applicant's two adult children were not in the former Republic
of Yugoslavia living at home with their parents but lived elsewhere
together with their spouses and children.
In these circumstances the Commission finds that respect for the
applicant's family life does not outweigh the general interest of the
economic well-being of the country and the prevention of disorder. The
interference with the applicant's right under Article 8 para. 1
(Art. 8-1) of the Convention was therefore justified under para. 2 of
Article 8 (Art. 8-2) of the Convention.
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. Finally, the applicant complains that his asylum applications
have not been examined fairly.
However, the Commission has constantly held that the procedures
followed by the public authorities to determine whether an alien should
be allowed to stay in a country or should be expelled do not come
within the scope of the Convention; in particular such proceedings do
not involve the determination of civil rights within the meaning of
Article 6 (Art. 6) of the Convention (cf., e.g., No. 12122/86, Lukka
v. the United Kingdom, D.R. 50 p. 268, and No. 12364/86, Kilic v.
Switzerland, D.R. 50 p. 280).
It follows that this part of the application is incompatible
ratione materiae with the provisions of the Convention 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 Acting President
the Second Chamber of the Second Chamber
(M.-T. SCHOEPFER) (G.H. THUNE)
Full & Egal Universal Law Academy