Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 34025/96

by Abate GELAW

against Sweden

The European Commission of Human Rights sitting in private on

21 October 1997, the following members being present:

Mr S. TRECHSEL, President

Mrs G.H. THUNE

Mrs J. LIDDY

MM E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

C.L. ROZAKIS

L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

D. SVÁBY

G. RESS

C. BÎRSAN

P. LORENZEN

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 23 August 1996 by Abate Gelaw against Sweden

and registered on 3 December 1996 under file No. 34025/96;

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 applicant is an Ethiopian citizen born in 1966.

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

summarised as follows.

The applicant arrived in Sweden in 1992. In 1994 he was granted

a permanent residence permit on account of his relationship with Y.W.,

an Ethiopian woman living in Sweden, to whom he was engaged. From his

arrival he lived with that woman and her friend in a flat in Norsborg.

The relationship with Y.W. ended in May 1995 and the applicant moved

out of the flat.

By judgment of 16 October 1995, the District Court (tingsrätten)

of Huddinge found the applicant guilty of having raped the above friend

on 17 June 1995. He was also convicted of molestation of another woman

in September 1995. The applicant was sentenced to two years and eight

months in prison. The court further ordered his expulsion from Sweden,

in accordance with Chapter 4, Section 7 of the Aliens Act

(Utlänningslagen, 1989:529). In so deciding, the court noted that the

applicant, according to a statement from the National Immigration Board

(Statens invandrarverk), was not considered as a refugee and that he

had not invoked, before the Board, any political grounds for not

wanting to return to Ethiopia. The court further took into account

that the relationship with Y.W. had ended and that he had no other ties

to Sweden.

The applicant appealed against the expulsion order to the Svea

Court of Appeal (Svea hovrätt). He stated that, with the help of

members of Y.W.'s family, he and Y.W. were reconciled and were again

engaged to be married.

On 21 November 1995 the appellate court upheld the expulsion

order, finding that the renewed engagement did not constitute a

sufficient family tie to refrain from expelling him.

It appears that the Supreme Court (Högsta domstolen) later

refused the applicant leave to appeal.

On two occasions the applicant requested the Government to

exercise its power under Chapter 7, Section 16 of the Aliens Act

(Utlänningslagen) to annul the expulsion order. By decisions of 2 May

and 5 September 1996, the Government rejected the requests.

On 10 December 1996 the applicant married Y.W.

On 3 January 1997 he was released on probation.

COMPLAINTS

The applicant complains that, in view of his relationship with

Y.W. and the time he had spent in Sweden, the expulsion order was not

fair. He invokes Article 12 of the Convention and Article 1 para. 1

of Protocol No. 7 to the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 23 August 1996. The applicant

requested the Commission to petition the Swedish Government to stay his

expulsion.

On 6 December 1996 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 applicant.

The application was registered on 3 December 1996.

THE LAW

The applicant complains that, in view of his relationship with

Y.W. and the time he had spent in Sweden, the expulsion order was not

fair. He claims that he does not have any relatives in Ethiopia and

will not be able to support himself there. Moreover, he allegedly

belongs to a minority tribe in Ethiopia, Amhara, and has been a member

of an Ethiopian anti-government organisation in Sweden. He invokes

Article 12 (Art. 12) of the Convention and Article 1 para. 1 of

Protocol No. 7 (P7-1-1) to the Convention.

Article 12 (Art. 12) of the Convention reads as follows:

"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."

Article 1 para. 1 of Protocol No. 7 (P7-1-1) to the Convention

provides the following:

"1. 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:

a. to submit reasons against his expulsion,

b. to have his case reviewed, and

c. to be represented for these purposes before the competent

authority or a person or persons designated by that authority."

The Commission notes that the applicant married Y.W. on

10 December 1996. Furthermore, the District Court's expulsion order

was reviewed by the Court of Appeal and, in deciding not to grant leave

to appeal, the Supreme Court. On two occasions, the Government refused

to annul the order. The applicant has not claimed that he could not

exercise his rights under Article 1 para. 1 of Protocol No. 7 (P7-1-1)

before these bodies.

In these circumstances, the Commission finds that there is no

evidence of a violation of the Articles invoked by the applicant. The

Commission, however, considers that his complaints fall to be examined

also under Articles 3 and 8 (Art. 3, 8) of the Convention.

Article 3 (Art. 3) of the Convention states as follows:

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

degrading treatment or punishment." The Commission notes,

in this regard, that the applicant originally was granted

a permit to reside in Sweden on account of his relationship

with Y.W. He did not invoke any political grounds when

applying for that permit. Neither did he refer to his

alleged membership of a minority tribe and an Ethiopian

anti-government organisation at any stage of the

proceedings in Sweden. Moreover, he has not indicated that

these connections will lead to any adverse consequences for

him in Ethiopia. The Commission, therefore, finds that no

grounds have been shown for believing that the applicant

will face the risk of being subjected to treatment contrary

to Article 3 (Art. 3).

Article 8 (Art. 8) of the Convention provides the following:

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

freedoms of others."

The Commission recalls 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).

Noting that the applicant lived with Y.W. since his arrival in

Sweden in 1992, the Commission considers that the applicant's expulsion

could be considered as an interference with his right to respect for

his family life. However, as the expulsion was ordered under the

applicable provision of the Aliens Act following the applicant's

conviction for rape and molestation, the interference was in accordance

with the law and pursued the legitimate aim of preventing crime.

Furthermore, having regard to the seriousness of the crimes in question

and taking into account that the applicant and Y.W. had been reconciled

and married at a time when the expulsion had already been ordered, the

Commission concludes that the Swedish authorities have not failed to

fulfil their obligation to strike a fair balance between the relevant

interests. Accordingly, the interference with the applicant's right

to respect for his family life under Article 8 (Art. 8) of the

Convention is justified in that it can reasonably be considered

necessary in the interest of preventing crime.

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, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

M. de SALVIA S. TRECHSEL

Secretary President

to the Commission of the Commission

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GELAW v. SWEDEN

GELAW v. SWEDEN

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