Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 35557/97

by Aphram KORKIS and 6 Others

against Sweden

The European Commission of Human Rights sitting in private on

18 May 1998, the following members being present:

MM S. TRECHSEL, President

J.-C. GEUS

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

H. DANELIUS

L. LOUCAIDES

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

Mr M. de SALVIA, 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 29 October 1995

by Aphram KORKIS and 6 Others against Sweden and registered on 25 April

1997 under file No. 35557/97;

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 applicants - father, mother and five children - are Syrian

citizens. The father, Aphram Korkis, was born in 1937 and the mother,

Silva Chabo, in 1956. Their children - Haytham, Meriana, Lilian,

Natali and Margareta - were born in 1981, 1983, 1987, 1989 and 1994,

respectively. Before the Commission they are represented by

Mr Hans Engström, a lawyer practising in Skärholmen.

The facts of the case, as submitted by the applicants, may be

summarised as follows.

On 30 April 1987 the parents and Haytham, Meriana and Lilian

arrived in Sweden. They applied for asylum, claiming that the father,

being a medical doctor, risked persecution from the security police and

retaliation from a bedouin family. They were given permanent residence

permits on 25 January 1989. For personal reasons they returned to

Syria in July 1989 together with Natali, who had been born in Sweden.

They came back to Sweden on 28 December 1991, almost two and a half

years later. At that time, the question arose whether to revoke their

residence permits, as it was doubtful whether the family could be

considered resident in Sweden. The applicants stated that they had not

intended to move from Sweden but that, for various reasons, they had

had to stay in Syria longer than planned. On 27 November 1992, after

having investigated the matter, the National Immigration Board (Statens

invandrarverk) decided not to revoke the permits.

On 18 July 1993 the family travelled again to Syria. About a

year later - on 7 July 1994 - the father entered Sweden together with

the two eldest children, Haytham and Meriana. He applied for social

welfare assistance as, allegedly, he was not able to support himself

and the children. The other family members - including Margareta who

had been born in Syria - remained in Syria where they lived in the

family home.

By decision of 20 September 1994, the Immigration Board revoked

the residence permits for the mother, Lilian and Natali as their

residence in Sweden was considered to have ended. The Board also

requested the police authorities to investigate the family's situation.

Heard by the police, the father stated that, in July 1993, the family

had travelled to Syria for a short visit but that, owing to illness in

the family, it had been necessary for them to stay for a much longer

period of time. He claimed that he had no income or place to live in

Syria and that the children had become accustomed to living in Sweden.

He stated further that only by paying large bribes had the family been

able to avoid reprisals in Syria.

On 13 October 1994, invoking family ties and previous residence,

the mother and the three youngest children applied for Swedish

residence permits. On 29 October they arrived in Sweden.

By decision of 19 January 1995, the Immigration Board revoked the

residence permits for the father and the two eldest children. The

Board noted that, after having been granted residence permits in

January 1989, they had lived in Syria for three and a half years.

Furthermore, the father had not had any employment in Sweden.

Consequently, their permits should be revoked as they could not be

considered to have settled in Sweden and as the father's fears of

reprisals in Syria lacked credibility. By the same decision, the Board

rejected the applications lodged by the mother and the three youngest

children, finding that they had no longer any family ties to Sweden and

that there were no other grounds for granting them residence permits.

The Board ordered the deportation from Sweden of all the family members

and issued a two-year prohibition on their return.

The applicants appealed to the Aliens Appeals Board (Utlännings-

nämnden). They stated that the children had become accustomed to

living in Sweden and had attended school in the country. Allegedly,

the children refused to return to Syria and the two eldest children had

threatened to commit suicide if they were deported. The applicants

reiterated also that their visits to Syria had been prolonged because

of family reasons and unforeseen events. Further, during the second

visit in 1993/94, the mother had had a miscarriage and then later had

become pregnant again. They maintained that the family's safety in

Syria and their exit visas had been secured through bribes and that,

upon return, the father would face prosecution for his Christian-

Communist views.

By decision of 5 September 1995, agreeing with the findings of

the Immigration Board, the Aliens Appeals Board rejected the appeal.

The applicants avoided deportation by going into hiding. Fresh

applications for residence permits were rejected by the Appeals Board

on 4 October 1995 and 17 January 1996. On 28 January 1996 the

applicants lodged another application. They submitted a statement made

by the archbishop of the Syrian-Orthodox church in Sweden, according

to which the family would be in great danger if they returned to Syria.

A further document submitted by the applicants allegedly confirmed that

an arrest order concerning the father had been issued by the

intelligence service of the Syrian army. The applicants also adduced

a certificate from the Children's Psychiatric Clinic (Barn- och

ungdomspsykiatriska mottagningen) in Södertälje stating that Haytham,

Meriana and Lilian gave the impression of being depressed and that, in

the long run, there was a considerable risk that their mental health

would be impaired. The applicants claimed that, having regard to their

long stay in Sweden, the deportation of the children would constitute

a violation of the United Nations Convention on the Rights of the

Child.

On 30 January 1996 the Appeals Board stayed the enforcement of

the deportation order. On 3 July 1996 it referred the latest

application to the Government. Mainly relying on the reasons given in

previous decisions and adding that, due to the continued journeys

between Syria and Sweden, the responsibility for the children's

situation rested with their parents, the Appeals Board recommended that

the application be rejected.

By decision of 24 October 1996, agreeing with the reasons given

by the immigration authorities in their respective decisions and

finding that the applicants had invoked no new circumstances, the

Government rejected the referred application.

Another application for residence permits was lodged by the

applicants on 7 November 1996 and dismissed by the Appeals Board on

13 November. In its decision, the Board noted that the family had

returned to Syria on 10 November.

COMPLAINTS

The applicants contend that their deportation from Sweden

constitutes a violation of Articles 3, 8 and 12 of the Convention.

They refer to the fact that the parents and the three eldest children

arrived in Sweden already on 30 April 1987 and state that, on account

of their prolonged stay and schooling in Sweden, the children have

become part of Swedish society. They speak Swedish fluently whereas

most of them have difficulties in speaking Arabic. Allegedly, their

education is not recognised in Syria, partly due to their status as

Christian refugees. Furthermore, as shown by the certificate from the

Children's Psychiatric Clinic and other statements invoked before the

Swedish authorities, there were medical and social reasons not to

deport the family to Syria. The family's journeys to Syria should not

be decisive; instead their situation at the time of the deportation is

to be taken into account. The applicants also maintain that, upon

return to Syria, they have encountered serious difficulties of a

religious and political character.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 29 October 1995. The

applicants requested the Commission to petition the Government of

Sweden to stay their deportation from Sweden.

On 31 October 1995 the President of the Commission decided not

to indicate to the Government, pursuant to Rule 36 of the Commission's

Rules of Procedure, the measure suggested by the applicants.

On 4 November 1996 the applicants again requested the Commission

to secure a stay of their deportation. On 8 November the President of

the Commission rejected the request.

Following further correspondence with the applicants, the

application was registered on 5 April 1997.

THE LAW

The applicants contend that their deportation from Sweden

constitutes a violation of Articles 3, 8 and 12 (Art. 3, 8, 12) of the

Convention, which read as follows.

Article 3 (Art. 3):

"No one shall be subjected to torture or to inhuman or

degrading treatment or punishment."

Article 8 (Art. 8):

"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 and morals, or for the protection of the rights and

freedoms of others."

Article 12 (Art. 12):

"Men and women of marriageable age have the right to marry

and to found a family, according to the national laws

governing the exercise of this right."

The Commission recalls that Contracting States have the right to

control the entry, residence and expulsion of aliens (cf., e.g., Eur.

Court HR, Vilvarajah and Others v. the United Kingdom judgment of

30 October 1991, Series A no. 215, p. 34, para. 102). However, an

expulsion decision may give rise to an issue under Article 3 (Art. 3)

of the Convention, and hence engage the responsibility of the State,

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 expelled (ibid., p. 34, para. 103). A mere possibility

of ill-treatment is not in itself sufficient (ibid., p. 37, para. 111).

Furthermore, ill-treatment must attain a minimum level of severity if

it is to fall within the scope of Article 3 (Art. 3). The assessment

of this minimum is relative; it depends on all the circumstances of the

case, such as the nature and context of the treatment, the manner and

method of its execution, its duration, its physical or mental effects

and, in some instances, the sex, age and state of health of the victim

(cf., e.g., Eur. Court HR, Cruz Varas and Others v. Sweden judgment of

20 March 1991, Series A no. 201, p. 31, paras. 83-84).

The Commission recalls further that the expulsion of a person

from a country in which close members of his family live may amount to

an unjustified interference with his right to respect for his family

life as guaranteed by Article 8 (Art. 8) of the Convention (cf., e.g.,

Eur. Court HR, Moustaquim v. Belgium judgment of 18 February 1991,

Series A no. 193, pp. 19-20, paras. 43-46).

In the present case, the Commission first notes that, except for

the allegation that the family has encountered serious difficulties of

a religious and political character upon their return to Syria on

10 November 1996, the applicants have not invoked, before the

Commission, that the father or the other members of the family risk

treatment contrary to Article 3 (Art. 3) of the Convention in Syria.

Instead, they have claimed that the deportation of the children from

Sweden, as such, constitutes a violation of that Article on account of

their long stay in Sweden and their integration into Swedish society.

Nevertheless, the Commission will take into account the submissions

made to the Swedish authorities as to the risk of ill-treatment in

Syria.

In this respect, the Commission has regard to the applicants'

statements that the father will face prosecution for his Christian-

Communist views and that an order to arrest him has been issued by the

intelligence service of the Syrian army. Furthermore, according to the

archbishop of the Syrian-Orthodox church in Sweden, the family will be

in great danger in Syria. It is recalled, however, that,

notwithstanding these alleged threats to the father's and the family's

safety, the applicants have returned to Syria for longer periods of

time, almost two and a half years between July 1989 and December 1991

and about a year between July 1993 and - respectively - July 1994 (as

regards the father and the two eldest children) and October 1994 (with

respect to the other family members). Not disregarding the

explanations given by the applicants, the Commission finds, in these

circumstances, that their fears cannot be considered credible. In any

event, the applicants have failed to show that they face a real risk

of treatment contrary to Article 3 (Art. 3) of the Convention in Syria.

In regard to the children's situation, the Commission notes that

they have spent a major part of their lives in Sweden and, with the

exception of Margareta, have attended school in the country. However,

notwithstanding their mental state at the time of their departure from

Sweden as evidenced, inter alia, by the certificate from the Children's

Psychiatric Clinic, the Commission finds that their difficulties in

returning to Syria were not such that the decision to deport them could

be considered as ill-treatment attaining the minimum level of severity

required under Article 3 (Art. 3) of the Convention. In this

connection, the Commission has further regard to the fact that their

stay in Sweden was prolonged for a considerable time due to their

parents' failure to comply with the deportation order.

With respect to the applicants' complaint under Article 8

(Art. 8) of the Convention, the Commission recalls that the National

Immigration Board's deportation order of 19 January 1995 and the

subsequent decisions by the Aliens Appeals Board and the Government

concerned all the family members. Moreover, on 10 November 1996, they

all left Sweden for Syria. Thus, no decisions taken by the Swedish

authorities have had the effect of splitting up the family.

Consequently, the decisions have not interfered with the applicants'

right to respect for their family life under Article 8 (Art. 8).

Finally, the Commission, noting that the applicants have

submitted no arguments in respect of their complaint under Article 12

(Art. 12) of the Convention, finds that there is no evidence of a

violation of this provision.

It follows that the application is 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.

M. de SALVIA S. TRECHSEL

Secretary President

to the Commission of the Commission

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KORKIS AND 6 OTHERS v. SWEDEN

KORKIS AND 6 OTHERS v. SWEDEN

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