AS TO THE ADMISSIBILITY OF
Application No. 19373/92
by Igor VOULFOVITCH, and Maria OULIANOVA
and Marina VOULFOVITCH
against Sweden
The European Commission of Human Rights sitting in private on
13 January 1993, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Sir Basil HALL
MM. F. MARTINEZ
Mrs. J. LIDDY
MM. J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
Mr. H.C. KRÜGER, 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 20 December 1992
by Igor VOULFOVITCH, and Maria OULIANOVA and Marina VOULFOVITCH aginst
Sweden and registered on 20 January 1992 under file No. 19373/92;
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 26 June 1992 and the observations in reply submitted by
the applicant on 18 August 1992;
Having deliberated;
Decides as follows:
THE FACTS
Particular circumstances of the case
The facts of the case as submitted by the parties can be
summarised as follows.
The first applicant was born in 1961. He is an engineer and
tennis coach by profession. Before coming to Sweden he lived in St.
Petersburg with his wife, the second applicant, born in 1964. Together
they have a child, the third applicant. All applicants have been
citizens of the Soviet Union.
The family arrived in Sweden on 12 July 1991 on a one-day visa
expiring on 15 July 1991. In Sweden they applied for political asylum,
travel documents and residence and work permits in accordance with the
provisions of the 1989 Aliens Act (utlänningslagen 1989:529).
The applicants provided the Swedish authorities with the
following background to their application.
While at university the first applicant participated in certain
actions against the Soviet Union's war in Afghanistan. In 1983, after
the applicant's participation in one such demonstration had been
discovered, the university authorities threatened him with expulsion
from the studies and also the stopping of his father's research work
unless he cooperated with the KGB by spying on Jews. After having
discussed the matter with his father the applicant accepted. He was
thereafter asked to provide information on a Jew who was suspected of
giving secret lessons of Hebrew. He managed to meet the person in
question, but instead of following the KGB's directives, he warned the
man of the organisation's interest in his person. When in 1984 he was
summoned to do military service he was ordered by the KGB to report on
problems within his unit. After his return to university he was asked
to try to befriend a student of Greek origin in order to see if that
student possessed illegal literature. The applicant never managed to
get this information and the KGB did not give him any new assignments.
However, in 1987 he was ordered to sign a document whereby he promised
not to reveal anything of what he knew about the KGB. He signed.
Between 1987 and 1990 nothing happened. However, in December 1990 he
was again contacted by the KGB which wished him to continue to spy on
Jews in the Soviet Union. He received a proposal to make friends with
and to provide information on two Jews. However, this time the
applicant refused stating that it had been a mistake from the beginning
to cooperate with the KGB. His interlocutor ordered him to sign a new
promise not to reveal anything of what he knew about the KGB. The
applicant refused this also. The interlocutor then told him in reply
that he would regret his attitude.
At the end of January 1991 he received an anonymous and unstamped
letter stating "Jewish swine get out of here - unless you disappear
something will happen to you and your family !". Up till February 1991
he received two more letters and also telephone calls containing
threats to kill him. Also the second applicant received insulting and
threatening telephone calls. They reported the matter to the police but
the police did not take any action.
When arriving at his home on 1 April 1991 unknown men gave the
first applicant a violent blow on his head. He lost consciousness and
was taken to hospital with a brain concussion. He does not think that
it was a robbery as he carried a lot of money which was not stolen.
On 10 April 1991 unknown men in a car without number plates tried
to kidnap the third applicant while she was taken out for a walk by the
second applicant and a friend. However, thanks to the intervention of
the friend and of a passer-by who had a big dog the kidnapping attempt
failed.
Some time during the spring of 1991 someone made a fire outside
the applicants' front door and painted a swastika on the door.
On 2 July 1991 the first applicant was summoned to the local
department for internal affairs (MVD) charged with dealing with
currencies on the black market. He had to sign a paper whereby he
promised not to leave St. Petersburg and on 8 July he received a new
summons to appear on 12 July. However, on 11 July, the applicants left
St. Petersburg for Sweden on board the steamer Iljitj, availing
themselves of a permit, previously issued, for them to leave the
country to go to Sweden and the USA. They did not encounter any
problems entering Sweden.
While still in St. Petersburg, the applicants had hoped to
continue from Sweden to the USA with the financial help of a friend
there. However the friend got into economic difficulties and could no
longer provide any such help. The first applicant accordingly decided
to take his family to Sweden.
According to information provided by a friend residing in
Stockholm the local militia in St. Petersburg has been searching for
the first applicant inter alia at his parents' home. In addition, the
applicants received information that the windows of their home, where
the second applicant's parents now live, had been smashed by stones and
that anti-semitic slogans had been carved into the front door.
Furthermore the parents had received anti-semitic telephone calls. The
father had reported the matter to the police which had not taken any
action.
On 25 November 1991 the National Board of Immigration (statens
invandrarverk) decided to hand the cases over to the Government for
decision in accordance with Chapter 7, Section 11 of the Aliens Act
because of the special circumstances obtaining. In a memorandum annexed
to this decision the Board concluded that the applicant's
trustworthiness could be questioned but that, even if their story was
accepted, the circumstances were not sufficiently serious to warrant
the granting of their applications for political asylum.
On 19 December 1991 the Government (Ministry of Labour) decided
to reject the applicants' requests and to forbid the applicants to
return to Sweden before 1 January 1994 without authorization from the
National Immigration Board. It also recalled that the decision
contained material which might be secret under the Secrecy Act
(sekretesslagen 1980:100). The reasons given were the following:
"In support of his request Igor Voulfovitch has mainly submitted
that he has refused to cooperate with the KGB in order to spy on
Jews and that he and his family have been exposed to anti-semitic
harassment through anonymous letters, telephone calls and
Swastika paintings.
The harassment to which Igor Voulfovitch has been exposed in his
home country is not of such a serious character and not in such
a way supported by the State that he and his wife Marina
Oulianova and their child can be considered as refugees in
accordance with Chapter 3, Section 2 of the Aliens Act. Nor does
there exist any such weighty reason as is referred to in Chapter
3, Section 1 § 3 of the same law. Nor are there any other grounds
for allowing them to remain in the country."
On 14 April 1992 the applicants applied to the Board for a
residence permit and for the suspension of the Government's expulsion
decision. They referred to continued reports of harassment of Jews in
Russia and to the fact that the third applicant's personal development
was seriously endangered as a result of the stress following the
rejection of their application for political asylum. On the last point
they invoked inter alia a certificate from the Psychiatric Child and
Youth Care Centre of the Stockholm County Council (psykiatriska barn-
och ungdomsvården, Stockholms landsting). They also emphasised that
they risked 3 to 5 years imprisonment because they had violated the
foreign exchange regulations when they left St. Petersburg: the customs
authorities had caught them while attempting to bring 1,470 USD with
them instead of the authorised 100 USD. They submitted three summonses
to appear before the public prosecutor relating to these charges, the
first dated 16 January 1992.
On 5 May 1992 the Board rejected their application. The Board
stated inter alia:
"According to Chapter 2, Section 5 of the Aliens Act a
request for residence permit, submitted by an alien who is
to be refused entry or expelled in accordance with a
decision which has gained legal force can only be granted
if the request is based on circumstances that have not been
previously examined in connection with the question of
refusal of entry or expulsion and if the applicant has a
right to political asylum here or if there are otherwise
very special grounds (synnerliga skäl) of a humanitarian
character.
...
The circumstances invoked in the present case regarding
ethnic harassment and suspicion of certain criminality, the
trustworthiness of which may be questioned, do not change
the Government's assessment that there is no ground for
asylum. Nor are there sufficiently strong reasons of a
humanitarian character to annul the Government's decision
and to grant a residence permit."
The applicants are at present in hiding somewhere in Sweden. The
details of their expulsion, including the date, have not been fixed.
However, under Chapter 8 of the Aliens Act, the police authority is to
enforce, as soon as possible, their expulsion to their home country.
Relevant domestic law
The relevant provisions of the Aliens Act read:
Chapter 1: Conditions applying to the residence of aliens in
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Sweden etc...
- - - - - - -
Section 4: "An alien staying more than three months in Sweden
shall have a residence permit unless he is a citizen of Denmark,
Finland, Norway or Iceland. ... ."
Chapter 2: Further provisions on visas, residence and work
- - - - - - - - - - - - - - - - - - - - - - - - - - - - -
permits
- - - -
Section 5: " ... If, however, the alien is to be refused entry
or to be expelled under an order which has acquired legal force, an
application by him for a residence permit may only be granted if it is
based on circumstances which have not previously been examined in the
case concerning refusal of entry or expulsion and if
1. the alien is entitled to asylum in Sweden, or
2. there are other exceptional grounds of a humanitarian nature
involved."
Chapter 3: Asylum
- - - - - - - - -
Section 1: "The term asylum as used in this Act refers to a
residence permit awarded to an alien because
1. he is a refugee,
...
3. without being a refugee, he is unwilling to return to
his country of origin on account of the political situation
there and is able to plead very strong grounds in support
of this."
Section 2: "The term refugee in the present Act refers to any
foreigner 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 because of his race, nationality, belonging to a special group
in society or his religious or political convictions and who cannot or
who does not wish to avail himself of his home country's protection
..."
Section 4: "An alien as referred to in Section 1 is entitled to
asylum.
Asylum may, however, be refused if
1. in view of what is known concerning the alien's
previous activities or, for considerations of national
security, there are exceptional grounds for not granting
asylum,
2. in the case of an alien coming under Section 1 ...
(3), there are special grounds for not granting asylum
..."
Chapter 4: Refusal of entry and expulsion
- - - - - - - - - - - - - - - - - - - - -
Section 1: "An alien may be refused entry
...
2. if he lacks a visa, residence permit or other document
required for entry, residence or employment in Sweden,
..."
Section 12: "When a question concerning refusal of entry or
expulsion is examined, it is to be considered whether the alien,
pursuant to the provisions of Chapter 8, Sections 1 - 4, cannot be sent
to a particular country or whether there are other special obstacles
to the decision being enforced.
Decisions made by the Government or the ... Board are to include
such directions with regard to enforcement as this examination may call
for."
Chapter 8: Enforcement
- - - - - - - - - - - -
Section 1: "An alien who has been refused entry or who is to be
expelled may never be sent to a country where there is firm reason to
believe that he would be in danger of suffering capital or corporal
punishment or of being subjected to torture, nor to a country where he
is not protected from being sent to a country where he would be in such
danger."
Section 2: "When a refusal-of-entry or expulsion order is to be
put into effect, the alien may not be sent to a country where he would
risk being persecuted, nor to a country where he would not be protected
from being sent on to a country where he would risk being persecuted.
An alien may, however, be sent to a country as referred to in
sub-paragraph 1 if he cannot be sent to any other country 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.
This does not apply if the persecution threatening him in the other
country 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 sub-
paragraph 1 if he has conducted activities endangering the national
security of Sweden and if there is reason to suppose that he would
continue to engage in such activities here and he cannot be sent to any
other country."
Section 5: "If enforcement is not subject to any obstacles under
Sections 1-4, 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 sub-paragraph 1 or there are other special grounds for doing so, the
alien may be sent to some other country instead."
Section 13: "If the enforcing authority finds that enforcement
cannot be carried out or that further information is needed, the
authority is to notify the ... Board accordingly. In such a case, the
... Board may decide on the question of enforcement or take such other
measures as are necessary. ... "
COMPLAINTS
The applicants complain of the decision to refuse them entry into
Sweden. They maintain that:
1. their expulsion to Russia would be contrary to Article 3 of the
Convention: they run a great risk of being persecuted there on account
of the first applicant's Jewish origins and his previous collaboration
with the KGB; the first applicant also risks criminal sanctions for
having left St. Petersburg without permission and for having violated
the foreign exchange regulations;
2. they have been the victims of a violation of Article 13 of the
Convention as they have had no effective remedy before any domestic
authority in respect of the Government's decision;
3. they have also been the victims of a violation of Article 1, sub-
paragraph 1, sub-section b, of Protocol No. 7 to the Convention in that
the National Immigration Board handed the case over to the Government
which, accordingly, took the expulsion decision as first and final
instance, thus depriving the applicants of their right under this
Article to have a review of their case.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 20 December 1991. On 17 January
1992 the Commission rejected the applicants' request under Rule 36 of
the Commission's Rules of Procedure for interim assistance in order to
prevent their expulsion to Russia, but it decided to bring the case to
the notice of the respondent Government and to invite them to submit
observations in writing on the admissibility and merits of the
application. The application was registered on 20 January 1992.
On 26 June 1992 the Government submitted their observations to
which the applicants replied on 18 August 1992.
THE LAW
1. The applicants complain that their expulsion to Russia would be
contrary to Article 3 (Art. 3) of the Convention because of the risk
of persecution and prosecution there. Article 3 (Art. 3) reads:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
According to the constant case-law of the Convention organs a
person facing extradition or expulsion to a foreign state may, where
the measure is imminent, claim to be a victim of a violation of, inter
alia, Article 3 (Art. 3) of the Convention if the measure might expose
him in that other country to a serious risk of treatment contrary to
this Article (see, inter alia, No. 10479/83, Dec. 12.3.84, D.R. 37 p.
158; Eur. Court H.R., Vilvarajah and Others judgment of 30 October
1991, Series A No. 215, p. 34, para. 103).
As regards the seriousness of the risk of treatment in their home
country the applicants have pointed out the first applicant's Jewish
origins, his past collaboration with the KGB, the threats, harassments
and persecution which he and his family experienced in St. Petersburg
before they fled from the country and the subsequent information
regarding continued harassments of Jews in Russia in general and in
St. Petersburg in particular which he has received inter alia from his
wife's parents. The first applicant also stresses that he risks serious
sanctions - 3 to 5 years imprisonment - as a result of the breach of
foreign exchange regulations and of having left the city without
permission despite his having signed a clear undertaking not to do so.
The Government maintain that the applicants' expulsion to Russia
would not violate Article 3 (Art. 3) of the Convention. The mere fact
that the applicants may have experienced harassments and threats there
before fleeing to Sweden - something which has not been proved - is not
sufficient to establish that there is still a sufficiently great risk
of such treatment to make their expulsion to Russia today contrary to
Article 3 (Art. 3) of the Convention. In this context the Government
emphasise the changes which have taken place in the former Soviet Union
and the rest of the world during the last few years and which have led
to the dissolution of the Union, with its more than one hundred
different population groups, into a number of independent states united
in a commonwealth. They state that the ensuing situation caused - not
unexpectedly - some general instability and unrest.
The information available to the Government in the last part of
the autumn 1991 with regard to the situation of ethnic minorities in
the former Soviet Union included the following. As a rule there seemed,
at the time, to exist no state-sanctioned discrimination of minority
groups. However, there was an increase of anti-Russian sentiments in
many peripheral republics. Increasing frustration in society also gave
rise to racism on the grass root level. This racism was directed
against all available dissentient groups, including the Jewish
community. Jews existed as minority groups all over the Soviet Union
and were therefore at risk of harassment in various republics. However,
reports of serious harassment had been few. During the previous year,
Jewish cultural centres and synagogues had opened in different parts
of the former Soviet Union.
The Government claim that, bearing in mind the unsubstantiated
character of the applicants' allegations and the developments in the
former Soviet Union, the existence of a mere possibility of ill-
treatment is not in itself sufficient to make the expulsion of the
applicants to Russia a violation of Article 3 (Art. 3) of the
Convention; the incidents relied upon are not severe enough, and the
connection to the authorities of Russia is too vague.
The Commission recalls that the Contracting States have the
right, as a matter of well-established international law and subject
to their treaty obligations including Article 3 (Art. 3), to control
the entry, residence and expulsion of aliens and furthermore that the
right to political asylum is not protected by either the Convention or
its Protocols (see, inter alia, Eur. Court H.R., Vilvarajah and Others
judgment of 30 October 1991, Series A No. 215, p. 34, para. 102).
However, the expulsion of an alien may give rise to an issue under
Article 3 (Art. 3), and hence engage the responsibility of the
expelling State under the Convention, where substantial grounds have
been shown for believing that the person concerned could 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 returned; a mere
possibility of ill-treatment is not in itself sufficient in this
context (ibid., pp. 34 and 37, paras. 103 and 111). Furthermore, ill-
treatment must attain a minimum level of severity if it is to fall
within the scope of Article 3 (Art. 3) (ibid., p. 36, para. 107).
The Commission has examined the applicants's allegations of risk
of ill-treatment if returned to Russia in the light of the above case-
law. It notes first of all that it is still not clear if the applicants
must be expelled to that country or if they could also seek to be sent
to some other country willing to accept them, e.g. Israel. However the
Commission has not found it necessary to clarify this question as, in
any event, it does not find that there are substantial grounds for
believing that the applicants are faced with a real risk of being
subjected to treatment contrary to Article 3 (Art. 3) if returned to
Russia. In reaching this conclusion the Commission has in particular
noted the changes which have taken place in Russia in the last few
years and which have led to significant progress towards increased
respect for human rights and the absence of evidence of any government-
supported discrimination against persons of Jewish origin.
The Commission accordingly concludes that the applicants'
complaints under Article 3 (Art. 3) of the Convention have to be
rejected as being manifestly ill-founded, in accordance with Article
27 para. 2 (Art. 27-2) of the Convention.
2. The applicants also allege a violation of Article 13 (Art. 13)
of the Convention in that they claim not to have had any effective
remedy before a national authority in respect of their allegations of
a violation of Article 3 (Art. 3) of the Convention.
The Commission recalls that Article 13 (Art. 13) requires that
any individual who has an arguable claim to be the victim of a
violation of the rights set forth in the Convention, should have a
remedy before a national authority in order both to have his claim
decided and, if appropriate, to obtain redress (see, inter alia, Eur.
Court H.R., Leander judgment 26 March 1987, Series A No. 116, pp. 29 -
30, para. 77 and Boyle and Rice judgment of 27 April 1988, Series A
no. 131, pp. 23 - 24, paras. 52 - 55). In the present case, the
Commission has rejected the applicants' main complaints as manifestly
ill-founded as it has not found that there are substantial grounds for
believing that they are faced with a real risk of being subjected to
treatment contrary to Article 3 (Art. 3) of the Convention if sent back
to Russia. Against this background the Commission does not consider
that the applicants' have any "arguable" claims for the purposes of
Article 13 (Art. 13) of the Convention.
It follows that this part of the application is also manifestly
ill-founded and has to be rejected in accordance with Article 27
para. 2 (Art. 27-2) of the Convention.
3. The applicants also complain about a violation of Article 1, sub-
paragraph 1 (b) of Protocol No. 7 (P7-1-1-b) to the Convention in that
they had no right to have the Government's decision to expel them
reviewed. The Article in question reads in its relevant parts:
"An alien lawfully resident in the territory of a State shall not
be expelled therefrom except in pursuance of a decision reached
in accordance with law and shall be allowed:
...
b. to have his case reviewed ... ."
The applicants maintain that, according to Swedish law, they were
lawfully resident in the country until the Government took the
expulsion decision. They also maintain that, as the Board sent their
case to the Government for decision, it was also the Government which
in first and final instance decided to expel them, thus depriving them
of their right under Article 1, sub-paragraph 1 (b) (Art. 1-1-b), to
have their case reviewed.
The Government contend in the first place that the application
is incompatible ratione materiae with the provisions of the Convention
and its Protocols since the applicants cannot be said to have been
lawfully resident in Sweden. They entered the country on a one-day visa
valid until 15 July 1991. The Government stress in this context that
persons admitted to the territory of the state for non-residential
purposes or who are awaiting the decision on a request for a residence
permit do not fall within the scope of the protection afforded by
Article 1 of Protocol No. 7 (P7-1). The also maintain that it must be
up to national law to determine the conditions for a person's presence
on the national territory to be "lawful" within the meaning of this
Article and that, as soon as an alien does not comply with one or more
of these conditions, his presence can no longer be considered "lawful"
within the meaning of Article 1 of Protocol No. 7 (P7-1).
The Commission recalls that the point of departure for the
interpretation of the Convention is the ordinary meaning of the terms
used, read in their context and having regard inter alia to the object
and purpose of the Convention (see, inter alia, Eur. Court H.R., Golder
judgment of 21 February 1975, Series A No. 18, p. 14, paras. 29-30).
In the context of an instrument which, like the Convention, does not
guarantee a right to asylum or other residence authorization, the term
"lawfully resident" used in Article 1 of Protocol No. 7 (P7-1) must be
interpreted to refer basically to lawfulness of the presence according
to national law. Thus an alien whose visa or residence permit has
expired cannot, at least normally, be regarded as being "lawfully
resident" in the country.
Whatever the exact scope of the term lawfully resident it clearly
does not comprise aliens in the applicants' situation. The applicants
only had a transit visa for a one-day visit to Sweden and have
remained, after the expiry of the visa, in the country solely in order
to await, first, a decision on their request for political asylum or
residence permits and, subsequently, the enforcement of the expulsion
decision.
Their complaints under this provision must therefore be declared
inadmissible as being incompatible ratione materiae with the provisions
of the Convention and its Protocols, in application of Article 27
para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. Krüger) (C.A. Nørgaard)
Full & Egal Universal Law Academy