AS TO THE ADMISSIBILITY OF
Application No. 27442/95
by Abdulkerim TUNC and Family
against Sweden
The European Commission of Human Rights (Second Chamber) sitting
in private on 19 October 1995, the following members being present:
MM. G. JÖRUNDSSON, Acting President
H. DANELIUS
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 17 March 1995 by
Abdulkerim TUNC and Family against Sweden and registered on 31 May 1995
under file No. 27442/95;
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 applicants, may be
summarised as follows.
All applicants are Turkish citizens. The first applicant was born
in 1964 and the second applicant, his wife, was born in 1963. The
third, fourth, fifth, sixth, seventh and eighth applicants are their
children, born in 1982, 1984, 1986, 1987, 1992 and 1993 respectively.
The ninth applicant is the first applicant's sister, born in 1966 and
the tenth and eleventh applicants are her children, born in 1993 and
1994 respectively. All applicants are at present living in a church at
Sollefteå, Sweden. They are represented by Mr. Claes Åberg.
At the age of sixteen the first applicant became involved in the
political activities of the Kurdish Democratic Party - the KDP - in the
area near Durakbasi in the South-east of Turkey. In September 1980 he
was arrested at Diyarbakir and detained for 45 days, during which he
was allegedly tortured. His family managed to buy him out of the
prison. In January 1982 he was arrested and detained again for 45 days.
He was allegedly tortured again but released from prison after his
family had once more paid a sum of money. During both periods of
detention the police wanted to obtain information about the KDP and its
members.
In 1985 the first applicant was called up for military service
and was stationed in eastern Turkey. He submits that he participated
in several operations against the Kurdish PKK guerillas and in 1986 he
was furthermore sent to Iraq to fight against the Kurds living there.
While in Iraq he deserted from the army and remained there until
September 1988 when he returned to Turkey. He stayed in Istanbul until
25 January 1989 when he flew to Warsaw using a passport, visa and air
tickets which had been "arranged" by the KDP. He submits that his
family paid 3 million Turkish lira for the assistance. From Poland the
first applicant went by boat to Sweden where he arrived on
28 January 1989 and applied for asylum referring to his political
activities and to the fact that he had deserted from the army.
On 26 May 1989 the National Immigration Authority (Statens
invandrarverk - the SIV) rejected the application. The appeal was
rejected by the Government on 1 February 1990. Two new applications
were rejected by the SIV on 5 and 23 March 1990.
Subsequently the first applicant applied for asylum under a false
identity, claiming to come from Iraq. On 7 May 1991 he was granted a
permanent residence permit. His wife and four children, the second,
third, fourth, fifth and sixth applicants, obtained a residence permit
on 17 September 1991 and thus joined the first applicant in Sweden,
also using false identities.
In 1993 the SIV obtained information about the above
irregularities and requested clarification from the family. Admitting
the use of false identities the family now applied for asylum referring
to the first applicant's above-mentioned political activities, to his
desertion from the army and to the fact that the family had now been
in Sweden for some years. On 11 January 1994 the SIV withdrew the
family's residence permits as these had been obtained on the basis of
incorrect submissions and rejected the requests for asylum.
In the meantime the first applicant's sister, the ninth
applicant, had arrived in Sweden and also obtained a residence permit
using a false identity. Following the discovery thereof her residence
permit was withdrawn on 14 January 1994 and her new application for
asylum, which was also submitted on behalf of her son, the tenth
applicant, was rejected the same day.
All applicants appealed against these decisions to the Aliens
Board (Utlänningsnämnden). On 1 November 1994 the Board rejected the
appeals stating inter alia as follows:
(translation)
"(The first applicant) has in this case admitted that he
has applied for asylum using two different identities. The
Board agrees with the SIV that (the first applicant) and
also his wife ... deliberately gave false information about
their and their children's identities and previous
activities in order to obtain a residence permit in Sweden.
The false information was of importance for the evaluation
of the permit question. Therefore there is reason to
withdraw (the first applicant's) permanent residence
permit... .
The Board is aware of the fact that the situation in the
South-east of Turkey from where the family comes recently
has become more difficult for those living there. However,
having regard to what is otherwise known about the
situation in Turkey and after consultation with the UNHCR,
the Board finds that a person from the South-east of
Turkey, by staying in other parts of Turkey, can avoid the
troubles which exist in this region. Accordingly, the fact
that a person comes from the South-east of Turkey is not as
such a reason to grant asylum or an impediment to
refoulement to Turkey. The reasons submitted by asylum
seekers from the South-east of Turkey shall therefore be
examined in the usual individual manner.
The Board agrees with the SIV that what (the first
applicant) and (the second applicant) have alleged in
regard to Turkey is not sufficient for considering them and
their children as refugees according to Chapter 3 section 2
of the Aliens Act (Utlänningslagen). ...
Since there are otherwise no humanitarian or other reasons
to change the decision appealed against (the first
applicant's) permanent residence permit shall be withdrawn
and an expulsion ... of the family shall follow. ..."
A similar decision was taken by the Aliens Board concerning the
first applicant's sister and her two children.
Further applications for residence permits were rejected by the
Aliens Board on 13 January, 9 May and 7 July 1995.
COMPLAINT
The applicants complain that their expulsion to Turkey would be
in violation of Article 3 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 17 March 1995 together with a
request, under Rule 36 of the Commission's Rules of Procedure, to take
the measures necessary to stay the execution of the expulsion order.
On 23 March 1995 the President of the Commission decided not to
apply Rule 36 of the Rules of Procedure.
THE LAW
The applicants complain that in particular the first applicant
risks treatment contrary to Article 3 (Art. 3) of the Convention if
returned to Turkey. Article 3 (Art. 3) of the Convention reads:
"No one shall be subjected to torture or to inhuman or
degrading treatment or punishment."
The applicants maintain that due to the first applicant's
desertion he risks being subjected to torture, inhuman or degrading
treatment or punishment by the Turkish military. Furthermore, they
maintain that he risks similar treatment from members of the PKK since
he participated in operations against this organisation. The applicants
also refer to the first applicant's political activities and to the
fact that they have all now lived in Sweden for some years.
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 to inhuman or
degrading treatment or punishment in the country to which he or she 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 notes that the expulsion in question is foreseen
to a State, Party to the Convention, which has declared that it
recognises the competence of the Commission to receive individual
petitions lodged under Article 25 (Art. 25) of the Convention.
Furthermore, the Commission considers that the general situation in
Turkey is not such that an expulsion to that country would in itself
amount to a violation of the Convention or any of its Protocols.
As regards the particular circumstances of the present case the
Commission does not consider that the first applicant's affiliation to
the KDP is of such a character that he would risk treatment contrary
to Article 3 (Art. 3) in Turkey for that reason. Concerning his
possible imprisonment for the offence of desertion from the army, 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 and No. 11017/84, Dec. 13.3.86, D.R. 46,
p. 176).
The Commission further finds no substantiation of the allegations
of possible ill-treatment of other family members upon their return to
Turkey.
The Commission concludes, on the evidence before it concerning
the applicants' background and the general situation in Turkey, that
it has not been established that there are substantial grounds for
believing that the applicants would be exposed to a real risk of being
subjected to treatment, contrary to Article 3 (Art. 3) of the
Convention, if expelled from Sweden to that country.
Moreover, the Commission recalls from its previous case-law that
Chapter 8, section 1 of the Swedish Aliens Act 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 (cf., e.g., No. 25387/94, Kas Ibrahim and
Parsom v. Sweden, Dec. 4.7.95, unpublished).
It follows that 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 Acting President
the Second Chamber of the Second Chamber
(M.-T. SCHOEPFER) (G. JÖRUNDSSON)
Full & Egal Universal Law Academy