AS TO THE ADMISSIBILITY OF
Application No. 25129/94
by Dalip TAHIRI
against Sweden
The European Commission of Human Rights (First Chamber) sitting
in private on 11 January 1995, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. F. ERMACORA
E. BUSUTTIL
M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
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 15 June 1994 by
Dalip TAHIRI against Sweden and registered on 13 September 1994 under
file No. 25129/94;
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 applicant, may be
summarised as follows.
The applicant is a so-called Kosovo Albanian, born in 1971. He
is a Muslim. He is at present residing at Lidköping, Sweden. Before the
Commission he is represented by Mr. Haxhi Osmanaj, who is a free-lance
journalist by profession.
Before the applicant came to Sweden he lived with his family in
the town Mushtisht in Suharek county, Kosovo, where he had been unable
to continue his high school studies (gymnasieskolan) since the schools
were closed. He was hereafter unemployed. The applicant submits that
he became a member of an illegal political party called Beslidhja
demokratike kombetare shiptare (BDKSH) which is working for Kosovo's
secession from former Yugoslavia and its annexation to Albania.
Furthermore, he submits that he was harassed by the Serbian police
during an incident around New Year 1991/92 where he was taken to the
local police station and interrogated for three hours apparently due
to his participating in a demonstration.
The applicant also submits that he was called to serve in the
Federal Yugoslav army on two occasions in June and once in July 1992.
It was the Serbian police which came looking for him. However, he had
managed to hide each time. Therefore, he decided to leave the country
on 13 September 1992.
The applicant came to Sweden on 17 September 1992 as a tourist.
One of his brothers has been living in Sweden since 1989 whereas the
rest of his family, i.e. his parents and his five other brothers and
sisters are still in Kosovo. On 18 January 1993 the applicant requested
that his tourist visa be prolonged. This was rejected by the National
Immigration Board (Statens Invandrarverk, the "SIV") in May 1993 and
he was requested to leave the country. On 20 June 1993 the applicant
went to Norway and applied for asylum there. The Norwegian authorities
rejected his request and the applicant was returned to Sweden.
In Sweden the applicant then submitted a request for asylum. In
his application he submitted, in addition to the above-mentioned facts,
that he had left former Yugoslavia in order to avoid the draft orders
as he feared being sent to the front in Bosnia or Croatia.
The SIV held a hearing on 13 July 1993 where the applicant
explained the above and added, inter alia, that he risked imprisonment
in Kosovo if his membership of BDKSH would be disclosed.
On 28 October 1993 the applicant requested an additional hearing
and submitted new facts in support of his application. He now claimed
that his family had been harassed by the Serbian police since the end
of the 1980's. This had the effect that he was excluded from the school
and his family was allegedly considered to be an enemy of the country
by the Federal Committee of Internal Security. He had never been able
to keep an employment for a longer period of time as the employers were
harassed by the police when they employed him. The applicant also
stated that the reason for the harassment was his membership, since
1984, of BDKSH. The applicant finally submitted that he feared long-
term imprisonment for his refusal to serve in the army and his
political activities in Kosovo and Sweden. On 4 February 1994 the SIV
rejected the applicant's request for asylum. It noted that the new
facts in support of his application were submitted by the applicant
only a year after his arrival, which it found unacceptable as the
applicant had had ample opportunities to submit this new information.
The SIV, accordingly, did not find the applicant trustworthy.
The SIV further stated that it considered the risk of persecution
of draft evaders insignificant and in any event a possible punishment
was not considered to be of such severity that it could justify asylum.
Furthermore, the applicant did not, in the SIV's opinion, run any risk
of being sent to the front and, finally, the general conditions in
Kosovo as such could not constitute a reason for granting asylum.
The applicant appealed against this decision to the Aliens
Appeals Board (Utlänningsnämnden). In his appeal he maintained the
facts submitted to the SIV and in addition submitted a draft order of
20 August 1993 and a statement asserting that, since 8 January 1993,
he had been living with a Swedish woman.
By decision of 31 May 1994 the Board rejected the applicant's
appeal. It found that the applicant could not be considered a refugee
within the meaning of the Aliens Act (utlänningslagen). The Board also
considered whether the alleged cohabitation with a Swedish woman could
establish a ground on which a permission to remain in Sweden could be
granted. It came to the conclusion that, when looking at the submitted
information as a whole, the applicant had not been able to render
credible that the cohabitation or attachment was of such a nature that
a permission to remain in Sweden should be granted on that ground.
On 7 June 1994 the applicant submitted a request for pardon
(nådansökan) to the Government which by decision of 16 June 1994
refused to examine the request as the decision of the Aliens Appeals
Board was not considered to concern a matter in which the Government
could grant pardon.
Following the introduction of his case with the Commission, the
applicant requested the SIV to stay his planned expulsion. By decision
of 20 October 1994 the SIV adjourned the expulsion proceedings pending
the outcome of the applicant's case before the Commission.
COMPLAINTS
The applicant complains of a violation of Articles 3 and 6 of the
Convention and Article 4 of Protocol no. 4 to the Convention.
As regards Article 3, he refers to the fact that he has refused
to join the Federal Yugoslav army and to his political activities. He
maintains that he risks up to 10 years imprisonment, torture,
harassment and that he will be forced to do military service if he is
expelled to Kosovo. Furthermore, he submits that he has now married the
Swedish woman and that they are expecting a child.
Regarding Article 6 the applicant complains that his application
for asylum cannot be examined by the administrative courts. Finally,
regarding Article 4 of Protocol no. 4, the applicant complains that he
is being expelled to Kosovo by Sweden in execution of a policy of
expelling all asylum seekers and deserters from former Yugoslavia. He
alleges that he is subjected to a collective expulsion and that the
Swedish authorities' rejection of his application for asylum is a
standard-form decision which has been given the appearance of an
individual decision.
THE LAW
1. The applicant complains that, if returned to Kosovo, he risks
being subjected to treatment contrary to 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, where substantial
grounds have been shown for believing that the person concerned would
face a real risk of being subjected to torture or 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).
Before the Commission the applicant submits that upon return to
Kosovo he risks torture, harassment, long-term imprisonment or to be
sent to the front due to his refusal to follow the draft order and due
to his political activities. To expel him would, therefore, constitute
a breach of Article 3 (Art. 3). Furthermore, he submits that he has
allegedly married a Swedish woman which also renders the expulsion
impossible.
The Commission recalls that in order to raise an issue under the
provision invoked there should be a specific risk of treatment contrary
to Article 3 (Art. 3) of the Convention. In the present case, as
submitted by the applicant, the Commission finds no substantiation as
regards the allegations of torture and persecution or harassment of the
applicant upon his return to Kosovo. Furthermore, the Commission finds
that even assuming that the applicant would risk imprisonment for
desertion, this possible punishment is not of such a kind as to raise
an issue under Article 3 (Art. 3). The applicant has failed to submit
evidence which could lead the Commission to a different conclusion in
the present case.
In view of the above, the Commission finds no substantiation of
the applicant's claim that he would be exposed to a real risk of being
subjected to treatment contrary to Article 3 (Art. 3) of the Convention
on his return to Kosovo. As to the argument concerning the marriage,
the Commission considers that it does not 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 and No. 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 and No. 23521/94, Dec. 5.7.94,
unpublished).
Moreover, the Commission recalls from its case-law mentioned
above that Chapter 8, section 1, of the Aliens Act imposes an absolute
obligation on the enforcement authorities 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 complains that his application for asylum cannot
be examined by the administrative courts. He invokes Article 6
(Art. 6) of the Convention which reads, as far as relevant, as follows:
"1. In determination of his civil rights or of any criminal
charge against him, everyone is entitled to a fair and
public hearing within a reasonable time by an independent
and impartial tribunal established by law ... ."
However, the Commission has constantly held that the procedure
followed by public authorities to determine whether an alien should be
allowed to stay in a country, or should be expelled, does not involve
the determination of civil rights and obligations within the meaning
of Article 6 para. 1 (Art. 6-1) of the Convention (cf., for example,
no. 13162/87, Dec. 9.11.87, D.R. 54, p. 211). The Commission finds that
the applicant's application for asylum falls within this category of
procedures which do not determine civil rights within the meaning of
Article 6 (Art. 6) of the Convention. Nor did the applicant's case
involve the determination of a criminal charge.
Accordingly, the Commission rejects this part of the application
as being incompatible ratione materiae with the provisions of the
Convention, pursuant to Article 27 para. 2 (Art. 27-2).
3. The applicant finally complains that the Swedish authorities, by
using standard-form decisions, are expelling asylum seekers from former
Yugoslavia collectively. He invokes Article 4 of Protocol no. 4 (P4-4)
to the Convention which reads as follows:
"Collective expulsion of aliens is prohibited."
The Commission recalls that it has previously held that
collective expulsion must be understood as any measure compelling
aliens, as a group, to leave a country, except where such a measure is
taken on the basis of a reasonable and objective examination of the
particular case of each individual alien of the group. Moreover, the
Commission has held that in case of expulsion, the fact that a number
of aliens receive similar decisions does not lead to the conclusion
that there is a collective expulsion when each person concerned has
been able on an individual basis to put the arguments against his
expulsion to the competent authorities (cf. No. 14209/88, Dec.
16.12.88, D.R. 59 p. 274).
The Commission notes that the SIV when deciding on the
applicant's application for asylum took into consideration the specific
facts which the applicant had submitted and made a specific decision
based on the applicant's case for rejecting the application. Upon
appeal the applicant had the possibility to present his objections to
the refusal of his request for asylum. Subsequently, the Aliens Board
reviewed the submitted personal facts and took an individual decision
involving only the applicant's situation.
In these circumstances the Commission considers that the
applicant was given an individual decision and finds that his possible
expulsion does not reveal any appearance of a collective expulsion
within the meaning of Article 4 Protocol no. 4 (P4-4) to the
Convention.
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.
For these reasons the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy