Lexploria

Application No. 33180/96

by Nabil SELMA

against Sweden

The European Commission of Human Rights sitting in private on

12 March 1998, the following members being present:

MM S. TRECHSEL, President

J.-C. GEUS

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

C.L. ROZAKIS

L. LOUCAIDES

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

E. BIELIUNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

MM R. NICOLINI

A. ARABADJIEV

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 9 September 1996

by Nabil SELMA against Sweden and registered on 25 September 1996 under

file No. 33180/96; Having regard to the reports provided for in Rule

47 of the Rules of Procedure of the Commission;

Having regard to the observations submitted by the respondent

Government on 9 February 1998 and the applicant's reply of 23 February

1998;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Algerian citizen, born in 1964 and currently

resident at Helsingborg, Sweden. He is represented by Mr Olle Karlsson,

a lawyer in Helsingborg.

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

summarised as follows.

While living in Algeria, the applicant left the Muslim

fundamentalist movement "FIS" in 1984. As a result of his parents'

professional activities, the mother's feminist and generally Western

attitude and the stepfather's atheist beliefs the parents became

opponents to the fundamentalists and were threatened and harassed by

them. For security reasons, the parents left the country in the early

1990's together with their three further children. The applicant stayed

behind. After refusing to participate in a strike at his work place he

was eventually fired. In 1991 he went to Sweden on a short visit and

met a woman who became his girlfriend. He returned to Algeria so as to

request a residence permit in Sweden. He re-entered Sweden in

July 1992, having been granted a six-month residence permit on account

of the girlfriend. He did not return to Algeria after their

relationship ended and his residence permit expired. He eventually

married another Swedish woman and requested a new residence permit. In

March 1995 the National Immigration Board (Statens invandrarverk)

dismissed the applicant's request.

On 5 June 1996 the Aliens Appeals Board (Utlänningsnämnden)

dismissed the applicant's appeal. It noted, in particular, that he had

been staying illegally in Sweden from November 1992 to January 1995.

In the Board's practice a family connection established during an

illegal stay could normally not be considered a reason for granting a

residence permit. He would therefore not necessarily have been granted

a residence permit, even if he had lodged such a request abroad. The

Aliens Appeals Board nevertheless quashed the two-year re-entry ban

imposed on the applicant.

Subsequently the applicant lodged a fresh request with the Aliens

Appeals Board, seeking a residence permit on humanitarian grounds. He

referred, inter alia, to the serious concerns expressed by the Swedish

Ministry for Foreign Affairs in respect of the security situation in

Algeria. On 20 November 1996 the Aliens Appeals Board suspended the

enforcement of the expulsion order but, on 28 November 1997, it

dismissed the applicant's request after having heard the Swedish

Embassy in Algiers and concluding that the legitimate interests of the

Swedish immigration authorities outweighed the interests of the

applicant and his family.

On a further request lodged by the applicant the Aliens Appeals

Board, on 28 January 1998, granted him a permanent residence permit and

quashed the expulsion order.

COMPLAINTS

1. The applicant complained under Article 3 of the Convention that

his expulsion to Algeria would subject him to a risk of torture or

inhuman or degrading treatment. His parents were allegedly forced to

leave Algeria, since the police were unable to protect them against the

fundamentalists. The applicant would also lack such protection, should

he be returned there.

2. The applicant also complained under Article 8 of the Convention

that his expulsion would entail his separation from his Swedish family

who, for security reasons, could not join him in Algeria. He was unable

to obtain a new Algerian passport via the Algerian Embassy in Sweden.

The issuing of a new passport in Algeria could take up to a year, if

at all he were to be granted one.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 9 September 1996 and registered

on 25 September 1996.

On 13 September 1996 and 11 December 1997 the Commission decided

not to indicate to the respondent Government, pursuant to Rule 36 of

the Rules of Procedure, that it would be desirable in the interests of

the parties and the proper conduct of the proceedings not to enforce

the expulsion order concerning the applicant until the Commission had

examined the application further.

On 11 December 1997 the Commission decided to communicate to the

respondent Government the applicant's complaint concerning Article 8

of the Convention.

On 9 February 1998 the Government requested that the application

be struck off the Commissions's list of cases in view of the decision

to grant the applicant a permanent residence permit and to quash the

expulsion order. On 23 February 1998 the applicant withdrew his

application.

REASONS FOR THE DECISION

The applicant complained under Articles 3 and 8 of the Convention

that his expulsion to Algeria would subject him to a risk of torture

or inhuman or degrading treatment and separate him from his Swedish

family who, for security reasons, could not join him in Algeria.

In their observations of 9 February 1998 the respondent

Government referred to the Aliens Appeals Board's decision to grant the

applicant a permanent residence permit and to quash the expulsion

order. In the light of that decision the application could, in the

Government's opinion, be struck off the Commission's list of cases.

In his observations of 23 February 1998 the applicant withdrew

his application.

The Commission notes that the applicant has now been granted a

permanent residence permit in Sweden. In these circumstances the

Commission considers that the Convention issues underlying

the application has been resolved within the meaning

of Article 30 para. 1 (b) of the Convention. Moreover, the Commission

finds no reasons of a general character affecting the respect for Human

Rights, as defined in the Convention, which require the further

examination of the application by virtue of Article 30 para. 1 in fine

of the Convention.

For these reasons, the Commission, unanimously,

DECIDES TO STRIKE THE APPLICATION OUT OF ITS LIST OF CASES.

M. de SALVIA S. TRECHSEL

Secretary President

to the Commission of the Commission

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SELMA v. SWEDEN

SELMA v. SWEDEN

LEXI