Application No. 33180/96
by Nabil SELMA
against Sweden
The European Commission of Human Rights sitting in private on
12 March 1998, the following members being present:
MM S. TRECHSEL, President
J.-C. GEUS
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
Mrs G.H. THUNE
MM F. MARTINEZ
C.L. ROZAKIS
L. LOUCAIDES
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
Mrs M. HION
MM R. NICOLINI
A. ARABADJIEV
Mr M. de SALVIA, 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 9 September 1996
by Nabil SELMA against Sweden and registered on 25 September 1996 under
file No. 33180/96; Having regard to the reports provided for in Rule
47 of the Rules of Procedure of the Commission;
Having regard to the observations submitted by the respondent
Government on 9 February 1998 and the applicant's reply of 23 February
1998;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an Algerian citizen, born in 1964 and currently
resident at Helsingborg, Sweden. He is represented by Mr Olle Karlsson,
a lawyer in Helsingborg.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
While living in Algeria, the applicant left the Muslim
fundamentalist movement "FIS" in 1984. As a result of his parents'
professional activities, the mother's feminist and generally Western
attitude and the stepfather's atheist beliefs the parents became
opponents to the fundamentalists and were threatened and harassed by
them. For security reasons, the parents left the country in the early
1990's together with their three further children. The applicant stayed
behind. After refusing to participate in a strike at his work place he
was eventually fired. In 1991 he went to Sweden on a short visit and
met a woman who became his girlfriend. He returned to Algeria so as to
request a residence permit in Sweden. He re-entered Sweden in
July 1992, having been granted a six-month residence permit on account
of the girlfriend. He did not return to Algeria after their
relationship ended and his residence permit expired. He eventually
married another Swedish woman and requested a new residence permit. In
March 1995 the National Immigration Board (Statens invandrarverk)
dismissed the applicant's request.
On 5 June 1996 the Aliens Appeals Board (Utlänningsnämnden)
dismissed the applicant's appeal. It noted, in particular, that he had
been staying illegally in Sweden from November 1992 to January 1995.
In the Board's practice a family connection established during an
illegal stay could normally not be considered a reason for granting a
residence permit. He would therefore not necessarily have been granted
a residence permit, even if he had lodged such a request abroad. The
Aliens Appeals Board nevertheless quashed the two-year re-entry ban
imposed on the applicant.
Subsequently the applicant lodged a fresh request with the Aliens
Appeals Board, seeking a residence permit on humanitarian grounds. He
referred, inter alia, to the serious concerns expressed by the Swedish
Ministry for Foreign Affairs in respect of the security situation in
Algeria. On 20 November 1996 the Aliens Appeals Board suspended the
enforcement of the expulsion order but, on 28 November 1997, it
dismissed the applicant's request after having heard the Swedish
Embassy in Algiers and concluding that the legitimate interests of the
Swedish immigration authorities outweighed the interests of the
applicant and his family.
On a further request lodged by the applicant the Aliens Appeals
Board, on 28 January 1998, granted him a permanent residence permit and
quashed the expulsion order.
COMPLAINTS
1. The applicant complained under Article 3 of the Convention that
his expulsion to Algeria would subject him to a risk of torture or
inhuman or degrading treatment. His parents were allegedly forced to
leave Algeria, since the police were unable to protect them against the
fundamentalists. The applicant would also lack such protection, should
he be returned there.
2. The applicant also complained under Article 8 of the Convention
that his expulsion would entail his separation from his Swedish family
who, for security reasons, could not join him in Algeria. He was unable
to obtain a new Algerian passport via the Algerian Embassy in Sweden.
The issuing of a new passport in Algeria could take up to a year, if
at all he were to be granted one.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 9 September 1996 and registered
on 25 September 1996.
On 13 September 1996 and 11 December 1997 the Commission decided
not to indicate to the respondent Government, pursuant to Rule 36 of
the Rules of Procedure, that it would be desirable in the interests of
the parties and the proper conduct of the proceedings not to enforce
the expulsion order concerning the applicant until the Commission had
examined the application further.
On 11 December 1997 the Commission decided to communicate to the
respondent Government the applicant's complaint concerning Article 8
of the Convention.
On 9 February 1998 the Government requested that the application
be struck off the Commissions's list of cases in view of the decision
to grant the applicant a permanent residence permit and to quash the
expulsion order. On 23 February 1998 the applicant withdrew his
application.
REASONS FOR THE DECISION
The applicant complained under Articles 3 and 8 of the Convention
that his expulsion to Algeria would subject him to a risk of torture
or inhuman or degrading treatment and separate him from his Swedish
family who, for security reasons, could not join him in Algeria.
In their observations of 9 February 1998 the respondent
Government referred to the Aliens Appeals Board's decision to grant the
applicant a permanent residence permit and to quash the expulsion
order. In the light of that decision the application could, in the
Government's opinion, be struck off the Commission's list of cases.
In his observations of 23 February 1998 the applicant withdrew
his application.
The Commission notes that the applicant has now been granted a
permanent residence permit in Sweden. In these circumstances the
Commission considers that the Convention issues underlying
the application has been resolved within the meaning
of Article 30 para. 1 (b) of the Convention. Moreover, the Commission
finds no reasons of a general character affecting the respect for Human
Rights, as defined in the Convention, which require the further
examination of the application by virtue of Article 30 para. 1 in fine
of the Convention.
For these reasons, the Commission, unanimously,
DECIDES TO STRIKE THE APPLICATION OUT OF ITS LIST OF CASES.
M. de SALVIA S. TRECHSEL
Secretary President
to the Commission of the Commission
Full & Egal Universal Law Academy