AS TO THE ADMISSIBILITY OF
Application No. 22325/93
by T. M., M. M.,
V. M. and N. M.
against Sweden
The European Commission of Human Rights sitting in private on
8 September 1993, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
A. WEITZEL
F. ERMACORA
E. BUSUTTIL
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
G.B. REFFI
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
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 22 July 1993 by
T. M., M. M., V. M. and N. M. against Sweden and registered on 26 July
1993 under file No. 22325/93;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to the observations submitted by the respondent
Government on 19 August 1993 and the observations in reply submitted
by the applicants on 3 September 1993;
Having deliberated;
Decides as follows:
THE FACTS
The applicants are husband and wife and their two children. They
are citizens of the Federal Republic of Yugoslavia. The husband and
wife were born in 1952 and the children in 1979 and 1983, respectively.
Before the Commission they are represented by Mr. Kjell Andersson, a
lawyer in Helsingborg, Sweden.
The facts of the case, as submitted by the parties, may be
summarised as follows.
Particular circumstances of the case
The first applicant is a Sergeant-Major in the reserve troops of
the former Yugoslav army. He performed his active service from February
1976 to February 1977. From 1982 to 1985 he participated in annual
reserve manoeuvres. His father, of Croatian origin, was a Colonel in
the Federal Yugoslav army; his mother was of Serbian origin.
From 31 August to 1 September 1991 the first applicant
participated in a reserve manoeuvre and was told to be ready for the
mobilisation of the army. On 19 September 1991 he left for Sweden,
where he arrived on 22 September. In October 1991 his wife was handed
a call-up order addressed to him. Subsequently the family was visited
on several occasions by military police searching for him. Following
the wife's dismissal from her work place, she too left for Sweden
together with the children. They arrived in Sweden on 19 December 1991.
On 8 January 1992 the family applied for asylum in Sweden. The
first applicant stated that he feared having to fight against Croatian
troops, thereby committing war crimes. Moreover, the second applicant
had been forced to leave her work place and she and the children had
been harassed. On 16 February 1993 the National Immigration Board
(statens invandrarverk) rejected the requests and ordered the
applicants to be expelled to the Federal Republic of Yugoslavia. On the
applicants' appeal, the Aliens' Appeals Board (utlänningsnämnden)
upheld the decision on 15 June 1993. On 16 July 1993 the Supreme
Administrative Court (regeringsrätten) rejected the applicants' request
for a re-opening of the case.
On 27 and 28 July 1993 the National Immigration Board rejected
two further requests for permission to stay in Sweden in the absence
of any new facts calling for a different assessment. In a further
decision of 28 July 1993, however, the National Immigration Board
decided to stay the enforcement of the expulsion order in the light of
the indication issued by the Acting President of the Commission (see
below "Proceedings before the Commission").
Relevant domestic law
Under Chapter 2, Section 5, subsection 3, of the 1989 Aliens Act
(utlänningslag 1989:529) a request for a residence permit lodged by an
alien, who is to be refused entry or expelled by a decision which has
acquired legal force, may only be granted provided the request is based
on new circumstances and the applicant is either entitled to asylum or
there are weighty humanitarian reasons for allowing him to stay in
Sweden.
Under Chapter 3, Section 1, an alien may be granted asylum
because he is a refugee or, without being a refugee, if he wishes not
to return to his home country because of the political situation there
and provided he can put forward weighty reasons in support of his wish.
The term "refugee" refers to an alien who is staying outside the
country of which he is a citizen because he feels a well-founded fear
of being persecuted in that country, having regard to his race,
nationality, membership of a special group in society or his religious
or political convictions, and who cannot or does not wish to avail
himself of his home country's protection (Chapter 3, Section 2).
An alien, as referred to in Chapter 3, Section 1, is entitled to
asylum. Asylum may, however, be refused inter alia if, in the case of
an alien falling under Chapter 3, Section 1, para. 3, there are special
grounds for not granting asylum (Chapter 3, Section 4). An alien may
be refused entry into Sweden if he lacks a visa, residence permit or
other permit required for entry, residence or employment in Sweden
(Chapter 4, Section 1, para. 2). When considering whether to refuse an
alien entry or to expel him, it must be examined whether he, pursuant
to Chapter 8, Sections 1-4, can be returned to a particular country
or whether there are other special obstacles to the enforcement of such
a decision (Chapter 4, Section 12). A refusal of entry issued by the
National Board of Immigration may be combined with a prohibition on
return for a specific period of time (Chapter 4, Section 14). In
refusing entry the Government may also issue a prohibition on return
for a specific period of time (Chapter 7, Section 5, subsection 2).
Under Chapter 7, Section 10, the National Board of Immigration
may review its decision if new circumstances have emerged or for any
other reason, provided it would not affect the alien negatively or be
irrelevant to him. A review may take place even if an appeal has been
lodged against the Board's decision. Once the Board has handed over the
file to the Government it may only review its decision if its opinion
is requested by the Government. The National Board of Immigration may,
for special reasons, refer a request for asylum to the Government
together with its opinion in the matter (Chapter 7, Section 11).
An alien who has been refused entry or who is to be expelled may
never be conveyed to a country where there is firm reason to believe
that he would be in danger of being subjected to capital or corporal
punishment or torture, or to a country where he is not protected from
being sent to a country where he would be in such danger (Chapter 8,
Section 1).
When a refusal of entry or an expulsion order is put into effect,
the alien may not be sent to a country where he would risk being
persecuted, or to a country where he would not be protected from being
sent on to a country where he would risk being persecuted (Chapter 8,
Section 2, subsection 1). An alien may, however, be sent to such a
country if he cannot be sent to any other and if he has shown, by
committing a particular offence, that public order and safety would be
seriously endangered by his being allowed to remain in Sweden. However,
this does not apply if the threatened persecution in the receiving
state implies danger to his life or is otherwise of a particularly
grave nature. Similarly, the alien may be sent to a country referred
to in subsection 1 if he has engaged in activities endangering the
national security of Sweden and if there is reason to suppose that he
would continue to engage in such activities in Sweden and he cannot be
sent to any other country (subsection 2).
If the enforcement is not subject to any obstacles under, inter
alia, Chapter 8, Sections 1 and 2, an alien who has been refused entry
or who is to be expelled is to be sent to his country of origin or, if
possible, to the country from which he came to Sweden. If the decision
cannot be put into effect in the manner indicated in subsection 1, or
there are other special grounds for doing so, the alien may be sent to
some other country instead (Chapter 8, Section 5).
When considering a request for a residence permit lodged by an
alien to be expelled according to a decision which has acquired legal
force, the National Board of Immigration (and in certain cases the
Government too) may stay execution of that decision. For particular
reasons, the Board may also otherwise stay execution (Chapter 8,
Section 10).
If the enforcing authority finds that enforcement cannot be
carried out or that further information is needed, the authority is to
notify the National Board of Immigration accordingly. In such a case,
the Board may decide on the question of enforcement or take such other
measures as are necessary (Chapter 8, Section 13).
COMPLAINTS
The applicants complain that, if they are returned to the Federal
Republic of Yugoslavia, the first applicant risks being sentenced to
death for desertion. They refer, in particular, to the first
applicant's status as an officer and to the high-ranking military
position held by his father. They further refer to Section 226 of the
Penal Code of that country, according to which the sentence for
desertion during a state of war, or immediately prior to such a state,
is between five years' imprisonment and capital punishment. They invoke
Article 3 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 22 July 1993 and registered on
26 July 1993. On 26 July 1993 the Acting President of the Commission
decided to bring the application to the notice of the respondent
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, that it was desirable in the
interests of the parties and the proper conduct of the proceedings not
to return the applicants to the Federal Republic of Yugoslavia until
the Commission had had an opportunity to examine the application.
The Government's observations were submitted on 19 August 1993,
to which the applicants replied on 3 September 1993.
On 8 September 1993 the applicants were granted legal aid.
THE LAW
The applicants complain that, if they are returned to the Federal
Republic of Yugoslavia, the first applicant risks being sentenced to
death for desertion. They invoke 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 Government submit that the first applicant entered Sweden as
a tourist in September 1991. In November 1991 he went to Hungary in
order to meet his family. The family did not apply for asylum until
8 January 1992. The Government consider that the army of the Federal
Republic of Yugoslavia is not presently involved in war. Thus, there
are no general obstacles to returning a person enlisted in this army.
The Swedish authorities are carefully following the events in former
Yugoslavia, including the treatment of deserters. The Government have
received no information indicating that deserters have been treated by
the military authorities in a way which could be considered contrary
to Article 3 (Art. 3) of the Convention. On the contrary, the
information shows that those who evade military service receive fairly
lenient punishments, if at all brought to trial. The risk that the
first applicant might be imprisoned for his evasion from military
service or compelled to perform such service is in no circumstances
sufficient to raise an issue under Article 3 (Art. 3). Finally, the
applicants have in no way been politically active in such a way as to
entitle them to asylum.
The Government therefore conclude that there are no substantial
grounds for believing that the applicants would run a real risk of
being subjected to treatment contrary to Article 3 (Art. 3) of the
Convention. The mere possibility of ill-treatment is not in itself
sufficient to give rise to a breach of Article 3 (Art. 3). The
Government emphasise that Chapter 8, Section 1, of the Aliens Act,
regarding the enforcement of an expulsion order, reflects almost
exactly the principles outlined by the European Court of Human Rights
when applying Article 3 (Art. 3) to expulsion or extradition cases.
The applicants point out that the law on desertion in the Federal
Republic of Yugoslavia provides for sentences from five years'
imprisonment to capital punishment. Thus, the first applicant clearly
runs a risk of being sentenced to death. The Swedish authorities have
not shown the contrary and the first applicant should therefore be
protected.
The applicants further refer to a statement by a Serbian lawyer
in August 1993, according to which draft evaders from the Federal
Republic of Yugoslavia will be perceived as traitors and that their
return would therefore clearly put their lives at risk. In any case,
they would be forced to fight in the war in Bosnia-Hercegovina. As the
first applicant is an officer in the reserve troops, he would be deemed
a deserter and would clearly be executed, if returned.
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., para. 103). A mere possibility of ill-
treatment is not in itself sufficient (ibid., p. 37, para. 111).
The Commission does not consider it established that the first
applicant would risk capital punishment for desertion if returned to
the Federal Republic of Yugoslavia. No question therefore arises under
Article 1 of Protocol No. 6 (Art. P6-1) to the Convention. Concerning
his possible imprisonment for that 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).
The Commission notes that the other applicants have not expressed
any fears of being subjected to treatment contrary to Article 3
(Art. 13) of the Convention on their return. The Commission also
observes that Chapter 8, Section 1, of the Aliens Act 1989 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 would be
in danger of being subjected to capital or corporal punishment, or
torture, in that country.
In conclusion, the Commission finds no substantiation of the
applicants' claim that they would be exposed to a real risk of being
subjected to treatment contrary to Article 3 (Art. 3) of the Convention
on their return to the Federal Republic of Yugoslavia.
In these circumstances 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.
Deputy Secretary to the Commission President of the Commission
(M. de SALVIA) (C.A. NØRGAARD)
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