Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 31076/96

by F.G. and Others

against Sweden

The European Commission of Human Rights (Second Chamber) sitting

in private on 10 September 1997, the following members being present:

Mrs. G.H. THUNE, President

MM. J.-C. GEUS

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

A. ARABADJIEV

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 12 January 1996

by F.G. and Others against Sweden and registered on 19 April 1996 under

file No. 31076/96;

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 applicants are two mothers and their respective children.

One family consists of B, born in 1961, and her children C, born in

1978, D, born in 1981, E, born in 1984, and F, born in 1990. The other

family consists of H, born in 1959, and her children K, born in 1978,

L, born in 1980, M, born in 1983, N, born in 1985, and O, born in 1989.

They are all Turkish citizens. Before the Commission they are

represented by Ms. Lena Isaksson, a lawyer practising in Umeå.

The applicants arrived in Sweden in September 1991. Together

with A and G, the husbands of B and H, and J, the eldest son of G and

H, they have previously lodged an application with the Commission (A.G.

and Others, No. 27776/95) in which they complained, under Article 3 of

the Convention, of the Swedish authorities' decision to refuse them

residence permits and to expel them to Turkey. After having obtained

the observations of the respondent Government, the Commission, by

decision of 26 October 1995, found the application manifestly

ill-founded and accordingly declared it inadmissible (cf. D.R. 83,

p. 101). The letter notations used in the present decision are

identical to those used in the previous decision.

The facts of the present case, as submitted by the applicants,

may be summarised as follows.

By decisions of 11 January 1996, the Government rejected the new

applications for residence permits lodged by the two families.

Also on 11 January 1996 the police authorities in southern

Lapland (Polismyndigheten i Södra Lappland) decided to take the family

members into custody in order to enforce the expulsion orders. At

about 5 pm the same day, C and E were taken by the police from the

school bus to the police station in Ã…sele where they were held for

almost six hours. At the same time, policemen surrounded the flats in

which the two families lived. Many local people gathered outside the

flats and scuffles broke out between them and the policemen. At the

time, A and G were on a journey somewhere in Sweden and thus avoided

being taken into custody. J managed to escape when he was led into a

bus. The other family members were taken by bus to a hotel in the

nearby town of Lycksele, where they were joined by C and E later the

same evening. During the police operation, the applicants' lawyer was

not able to contact them, as the applicants were not allowed to answer

the telephone. However, she met them at the hotel at about 1.15 am.

After being served breakfast the following morning, the eleven

applicants were taken to an airfield 60 km north of Lycksele. The

police had chartered a 35 year old turbo-propeller-driven aircraft to

take the applicants to Ankara. They were joined by policemen, a

clergyman, a medical doctor from the Clinic for Forensic Psychiatry in

Umeå and a nurse. The crew consisted of the captain, a co-pilot and

an air-hostess. The plane took off on 12 January at 10 am.

Intermediate landings for refuelling were planned in Rönne, Denmark,

and in Budapest. During the flight the applicants were served

ham-and-cheese sandwiches which, for religious reasons, they could not

eat.

The following information on the journey has been taken from an

official report drawn up by the Swedish Embassy in Ankara. No problems

were encountered on the flight to Budapest, except for B and D trying

to open the doors of the plane in an apparent attempt to escape. About

two hours after leaving Budapest, it was discovered that the back door

of the plane was unlocked. It was therefore necessary to land in

Bucharest to have that door repaired. After another two hours, the

plane took off again. However, just a few minutes after take-off one

of the plane's two engines cut out. The plane lost altitude and the

pilot had to turn around. He reached the runway by just a few metres

and made an emergency landing. No further damage was done to the

plane, but there could have been a serious accident had it not been for

the pilot's skilful handling of the situation. Apparently, he was

helped by favourable weather conditions. It was considered that the

incident was due to the poor mechanical state of the plane. Passengers

and crew were shocked by the incident but reacted in a composed manner.

However, the medical doctor refused to continue the journey and thus

left the group in Bucharest.

After the captain and some policemen had held lengthy

negotiations with the head of the Bucharest airport authority, they

were allowed to charter a Romanian plane. During these negotiations,

the applicants stayed in the damaged plane, at first because the

Romanian security personnel did not allow them to leave it and later

because some of the children were asleep. In the morning of

13 January, the chartered Romanian plane took off for Ankara where it

landed at 12 am local time. The applicants passed Turkish immigration

and passport controls without any problems. They were taken to the

airport police station where they were questioned for about one and a

half hour. At the same time, they were given something to eat. Soon

thereafter, they started an 11 hour bus journey to Diyarbakir where

they have since been staying.

In Diyarbakir the applicants first stayed with some relatives but

then moved to two flats. They have received financial support from

people in Ã…sele.

Apparently, A and G are still in hiding in Sweden. On

31 October 1996 the Government granted J a permanent residence permit

in Sweden for humanitarian reasons.

After an investigation of the events that took place in

connection with the expulsion of the applicants, the Parliamentary

Ombudsman (Justitieombudsmannen), on 10 June 1997, found no reason to

criticise the police authorities for the way in which the expulsion

orders had been enforced.

COMPLAINTS

1. The applicants complain that the expulsion orders were enforced

in such a way that they were subjected to inhuman and degrading

treatment under Article 3 of the Convention.

2. They further claim that the expulsion violated Article 8 of the

Convention as it led to the splitting up of the families.

THE LAW

1. The applicants complain that the expulsion orders were enforced

in such a way that they were subjected to inhuman and degrading

treatment. They invoke Article 3 (Art. 3) of the Convention, which

provides the following:

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

degrading treatment or punishment."

The applicants claim, inter alia, that, in carrying out the

expulsion orders, the police authorities did not take into account the

children's fragile mental state. The medical doctor who accompanied

the applicants until Bucharest had allegedly said that he was not

instructed to assess the applicants' mental health but should be

available if something happened during the journey. Further, the

applicants were subjected to serious physical and mental risks. Due

to the poor mechanical state of the first plane, there was almost a

serious accident. During the journey, they were not given any food

they could eat. Moreover, due to the way in which the expulsion was

enforced and the lack of psychological support, the expulsion was very

traumatic for the children.

The Commission recalls that ill-treatment must attain a minimum

level of severity if it is to fall within the scope of Article 3

(Art. 3) of the Convention. 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. Eur.

Court HR, Cruz Varas and Others judgment of 20 March 1991, Series A no.

201, p. 31, paras. 83-84).

The Commission first recalls its conclusion in the decision of

26 October 1995 that the applicants' return to Turkey would not amount

to a violation of Article 3 (Art. 3). It further recalls that, on the

journey to Ankara, the applicants were accompanied by a clergyman, a

nurse and, until Bucharest, a medical doctor from the Clinic for

Forensic Psychiatry in Umeå. Thus, notwithstanding the applicants'

allegation that the doctor was not instructed to assess their mental

health, the Commission considers that the police authorities had

provided for reasonable medical and other support during the journey.

As regards the incident with the first plane, which was apparently due

to its poor mechanical state, and the fact that the applicants, during

the journey, were served food they could not eat, the Commission finds

that these circumstances, however unfortunate, were not such as to

constitute ill-treatment under Article 3 (Art. 3) of the Convention.

It follows that this part of the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2. The applicants complain of the splitting up of the families.

They invoke Article 8 (Art. 8) of the Convention, which reads as

follows:

"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."

The applicants state that the families, as a consequence of the

expulsion, were split up, temporarily as C and E were held at the

police station in Ã…sele for several hours and permanently as A, G and

J are still in Sweden.

The Commission considers that the separation of family members,

resulting from the enforcement of an expulsion order, raises the

question whether there has been a lack of respect for family life under

Article 8 (Art. 8) of the Convention. It recalls that as a matter of

well-established international law and subject to its treaty

obligations, a State has the right to control the entry of

non-nationals to its territory. In the field of immigration,

Contracting States enjoy a wide margin of appreciation in determining

the steps to be taken to ensure compliance with the Convention with due

regard to the needs and resources of the community and of individuals

(cf. Eur. Court HR, Abdulaziz, Cabales and Balkandali v. the United

Kingdom judgment of 28 May 1985, Series A no. 94, pp. 33-34, para. 67).

Insisting on family unity when, for instance, part of the family has

gone into hiding to avoid expulsion could seriously impede the

effectiveness of the immigration control (cf. Cruz Varas and Others v.

Sweden, Comm. Report 7.6.90, para. 101, Eur. Court HR, Series A

no. 201, p. 48).

In the present case, the Commission observes that the intention

of the Swedish authorities was to expel all members of the two families

at the same time. However, A and G were not at home when the police

came to take the family members into custody and they later went into

hiding. Moreover, J managed to escape during the police operation and

was also in hiding for some time.

The Commission further notes that the family members remaining

in Sweden are free to leave Sweden and join the applicants in Turkey.

In this connection, the Commission recalls its conclusion in the

decision of 26 October 1995 that it had not been established that there

were substantial grounds for believing that these family members would

be exposed to a real risk of being subjected to treatment contrary to

Article 3 (Art. 3) of the Convention in Turkey.

In the above circumstances, the Commission finds that the

responsibility for the splitting up of the two families cannot be

attributed to the Swedish State. The duties imposed by Article 8

(Art. 8) of the Convention did not extend to an obligation on the

Swedish authorities to refrain from expelling the applicants.

It follows that this part of the application is also 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.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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F.G. AND OTHERS v. SWEDEN

F.G. AND OTHERS v. SWEDEN

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