AS TO THE ADMISSIBILITY OF
Application No. 23634/94
by Ibrahim TANKO
against Finland
The European Commission of Human Rights sitting in private on
19 May 1994, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
A. WEITZEL
F. ERMACORA
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
MM. 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
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
D. SVÁBY
Mr. H.C. KRÜGER, Secretary to the Commission assisted by
Mr. L. BERG.
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 4 March 1994 by
Mr. Ibrahim TANKO against Finland and registered on 8 March 1994 under
file No. 23634/94;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
- the observations submitted by the respondent Government on
4 April 1994 and the observations in reply submitted by the
applicant on 24 April 1994; and
- the additional observations submitted by the applicant on
5 May 1994 and the additional observations in reply submitted by
the Government on 10 May 1994;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a citizen of Ghana born in 1957. He is a
bricklayer by profession. Before the Commission he is represented by
Ms. Kirsi Tarvainen, a lawyer of the Refugee Advice Centre in Helsinki.
The facts of the case, as submitted by the parties, may be
summarised as follows.
Particular circumstances of the case
On 1 April 1988 the applicant was allegedly arrested and detained
for two days by his employer on suspicion of having participated in a
demonstration arranged by Muslims at his work place. During his
detention he was allegedly assaulted. He allegedly managed to escape
from detention with the help of a friend.
The applicant left Ghana for Burkina Faso on 5 April 1988,
leaving his family behind in Ghana. From Burkina Faso he continued on
the same day to Libya. In Libya he remained until 10 April 1989, when
he left for Tunisia. On 27 April 1989 he left Tunisia for Turkey, from
where he went to Cyprus on 30 April 1989. On 1 May he returned to
Turkey and on 6 May 1989 he went back to Cyprus. On 9 May 1989 he again
returned to Turkey, from where he went to Syria. On 19 September 1989
he left Syria for Egypt, from where he went to Saudi-Arabia on
8 March 1990. In June 1990 he returned to Egypt.
On 22 September 1990 he left Egypt for Finland, where he
immediately requested asylum and a residence permit. This was refused
by the Ministry of the Interior (sisäasiainministeriö, inrikes-
ministeriet) on 13 November 1992.
The applicant appealed, referring, inter alia, to the fact that
in the autumn of 1992 it had been discovered that he is suffering from
glaucoma, an eye illness, which had most likely been caused by the
assault to which he had allegedly been subjected during his detention
in Ghana. The appeal was rejected by the Asylum Board (turvapaikka-
lautakunta, asylnämnden) on 10 February 1993 after it had obtained a
negative opinion from the Ministry of the Interior.
On 8 June 1993 the Ministry of the Interior ordered the
applicant's expulsion. The applicant's appeal against the expulsion
order was rejected by the Supreme Administrative Court (korkein
hallinto-oikeus, högsta förvaltningsdomstolen) on 11 February 1994.
In a report of 24 August 1993 submitted by ophthalmologist A.V.
the following is stated in regard to the applicant's illness:
(translation from Finnish)
"[The applicant's illness] requires regular ophthalmological
controls and probably an operation in the near future. The
operation might have to be carried out at very short notice. It
requires at least the resources of a university hospital and
could not successfully be carried out in [Ghana]. [If the
applicant is not operated on], the suppression of [his] illness
will require continuous medication. If the medication is
interrupted [due to] its uncertain availability in [Ghana], ...
[the applicant] might lose his eyesight. [H]e might suffer severe
pain and his eye might have to be removed. [An eye removal could
only be carried out] by a hospital specialised in ophthalmology.
..."
In a further medical report of 22 February 1994 A.V. stated that
a sudden increase of the pressure in the applicant's eye might render
him blind and necessitate an operation. A.V. further confirmed that the
applicant was awaiting examination at the University Hospital of
Helsinki in order to have his need for an operation determined.
On 31 March 1994 the Ministry of the Interior decided to postpone
the enforcement of the applicant's expulsion order until a possible
operation has taken place and his necessary follow-up treatment has
been concluded.
A medical report of 27 April 1994, submitted by ophthalmologist
P.P. of the Helsinki University Hospital in regard to the applicant's
disease, concludes as follows:
(translation from Finnish)
" ... [The applicant] suffers from a secondary glaucoma in
his left eye. ... The eye pressure is normal with [his]
current medication. [There is] no need for an operation or
laser treatment. The applicant [should] continue his
[present] medication. ... [As from now on he should]
undergo an ophthalmological examination twice a year and
later possibly once a year. ..."
In a further medical report of 5 May 1994 P.P. confirmed that the
applicant's illness could for the time being be treated with eye drops
twice a day and that an operation was therefore not required. No
prediction as to possible further treatment needed by the applicant
could be made at present. An ophthalmological examination was
recommended in about six months.
In the light of the medical reports of 27 April and 5 May 1994
the Ministry of the Interior on 9 May 1994 revoked its decision of
31 March 1994 and considered that the applicant's expulsion could be
carried out.
Relevant domestic law
The 1991 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. In the application of
the Act aliens' rights shall not be unnecessarily restricted (section
1, subsections 1 and 3).
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 (section 20, subsection 1, para. 3).
Whenever the deportation of an alien is being considered, all
relevant circumstances must be taken into account and, at least the
duration of his stay in Finland, his family or other ties with that
country and, if criminal behaviour would form the basis for his
deportation, the character of his offence or offences (section 41,
subsection 1).
COMPLAINTS
1. The applicant complains that the enforcement of his expulsion
would subject him to a risk of losing his eyesight in view of the
inadequate facilities for treating him and possibly operating on him
in Ghana. He invokes Article 3 of the Convention.
2. On 9 March 1994 the applicant supplemented his application by
complaining that his return to Ghana would also constitute a lack of
respect for his physical integrity and thereby for his private life,
as guaranteed by Article 8 of the Convention.
3. In his observations of 9 March 1994 the applicant also invoked
Article 14 of the Convention in conjunction with the above-mentioned
provisions, given that his return to Ghana would interrupt his care
merely on the basis that he is no longer lawfully resident in Finland.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 4 March 1994 and registered on
8 March 1994.
On 7 March 1994 the Commission decided, pursuant to Rule 36 of
the Commission's Rules of Procedure, that it was desirable in the
interests of the parties and the proper conduct of the proceedings not
to return the applicant to Ghana until the Commission had had an
opportunity to examine the application. The Commission further decided,
pursuant to Rule 48 para. 2 (b), to bring the application to the notice
of the respondent Government and to invite them to submit written
observations on its admissibility and merits with reference to Articles
3 and 8 of the Convention.
The Government's observations were submitted on 4 April 1994.
On 15 April 1994 the Commission prolonged its indication under
Rule 36 until 20 May 1994.
The applicant's comments on the Government's observations were
submitted on 24 April 1994.
Additional observations were submitted by the applicant on
5 May 1994 and by the Government on 10 May 1994.
THE LAW
1. The applicant complains that the enforcement of his expulsion
would subject him to a risk of losing his eyesight in view of the
inadequate facilities for treating him and operating on him in Ghana.
He invokes 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 Government consider that this complaint is manifestly
ill-founded. No substantial grounds have been shown for believing that
the applicant, due to the current state of his illness and his
allegedly insufficient possibilities of obtaining adequate care in
Ghana, would face a real risk of being subjected to treatment contrary
to Article 3 (Art. 3), should he be returned to that country. The
applicant's assertion that the care facilities in Ghana are
insufficient is only corroborated by the statement of ophthalmologist
A.V. dated 24 August 1993. His opinion, however, cannot in this respect
be regarded as authoritative.
The applicant considers that he has shown that his present
treatment and regular ophthalmological examinations are necessary and
that an interruption of this care would lead to severe pain and
possibly to the loss of his eyesight. Ghana is a poor developing
country and the applicant has no financial means of his own. The
effects of his expulsion would therefore be serious and irrevocable and
subject him to inhuman treatment. Should an operation be considered
necessary, it is uncertain when this could take place in Finland and
how long his recuperation would last. Both his individual situation at
that stage and the general situation in Ghana at that time would be
uncertain.
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, 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., p. 34, para. 103). A mere possibility of
ill-treatment is not in itself sufficient to give rise to a breach of
Article 3 (Art. 3) (ibid., p. 37, para. 111). The Commission does not
exclude that a lack of proper care in a case where someone is suffering
from a serious illness could in certain circumstances amount to
treatment contrary to Article 3 (Art. 3).
In the present case the Commission observes, however, that the
most recent expert opinions concerning the applicant's disease conclude
that for the time being he is not in need of an operation, but that he
should continue to receive his present medication. On the evidence
before it concerning both his individual situation and the general
situation in Ghana, the Commission does not find it established that
the applicant could not obtain this medication in that country or bring
it with him when returned there. The Commission also notes that the
applicant's family is residing in Ghana. For the above reasons, there
are no substantial grounds for believing that he would be exposed to
a real risk of being subjected to treatment contrary to Article 3
(Art. 3) of the Convention, if expelled to that country in his present
state of health.
It follows that this aspect 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 considers that his return to Ghana would
constitute a lack of respect for his physical integrity and thereby his
private life, as guaranteed by Article 8 (Art. 8) of the Convention.
This provision reads as follows:
"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 Government primarily submit that Article 8 (Art. 8) of the
Convention is not applicable in the case, given that neither the
Convention nor any of its Protocols guarantee any explicit or implicit
right to obtain medical care. In the alternative, the Government
consider that the interference with the applicant's private life caused
by the enforcement of the expulsion order would be in accordance with
the law, pursue the legitimate aim of preventing disorder, would be in
the interests of the economic well-being of the country and, finally,
would be proportionate to those aims and thereby necessary in a
democratic society.
In the applicant's view it cannot be argued that every expulsion
of an alien would be necessary in pursuance of the legitimate aim of
maintaining public order. In his case there is no indication that
public order would be jeopardised if he were permitted to remain in
Finland until his necessary care has come to an end.
The Commission considers that the refusal to grant the applicant
asylum or a residence permit in Finland raises the question whether
there has been a lack of respect for his private life. It recalls that
the notion of "respect" enshrined in Article 8 (Art. 8) is not clear-
cut. This is the case especially where the positive obligations
implicit in that concept are concerned. Its requirements will vary
considerably from case to case according to the practices followed and
the situations obtaining in the Contracting States. In determining
whether or not such an obligation exists, regard must be had to the
fair balance that has to be struck between the general interest and the
interests of the individual, as well as to the margin of appreciation
afforded to the Contracting States (Eur. Court H.R., B. v. France
judgment of 25 March 1992, Series A no. 232-C, pp. 47 et seq., paras.
44 et seq.). In the field of immigration "Contracting States enjoy a
wide margin of appreciation in determining the steps to be taken to
ensure compliance with the Convention with due regard to the needs and
resources of the community and of individuals" (Eur. Court H.R.,
Abdulaziz, Cabales and Balkandali judgment of 28 May 1985, Series A no.
94, pp. 33-34, paras. 67 and 68).
In the present case the Commission refers to the factual
conclusions it has already drawn when examining the application under
Article 3 (Art. 3) of the Convention above. In the light of these
conclusions, it also finds no elements indicating that the respondent
Government would exceed their margin of appreciation in striking a fair
balance between the general interests of the community and the
individual interests of the applicant, should he be returned to Ghana.
The Commission concludes, therefore, that his return to that country
would not in his present state of health amount to a lack of respect
for his private life.
It follows that this aspect 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. The applicant has finally invoked Article 14 (Art. 14) of the
Convention in support of his application. This provision reads as
follows:
"The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any ground
such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national
minority, property, birth or other status."
The Commission recalls that Article 14 (Art. 14) of the
Convention prohibits discrimination in the securement of Convention
rights and freedoms. Article 14 (Art. 14) has no independent existence,
since it has effect solely in relation to the "rights and freedoms"
safeguarded by those provisions (Eur. Court H.R., Inze judgment of 28
October 1987, Series A no. 126, p. 17, para. 36).
The Commission has found the application to be manifestly
ill-founded under both Articles 3 and 8 (Art. 3, 8) of the Convention.
In the light of the factual circumstances upon which those findings
were made, the Commission also finds no elements in the case which
might disclose any appearance of discriminatory treatment of the
applicant compared to others in a comparable situation to his.
Therefore no issue under Article 14 (Art. 14) of the Convention arises
in the present application.
It follows that this aspect of the case 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, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy