Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 32530/96

by O.H.S. and G.R.

against Finland

The European Commission of Human Rights (First Chamber) sitting

in private on 21 May 1997, the following members being present:

Mrs. J. LIDDY, President

MM. E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs. M. HION

Mr. R. NICOLINI

Mrs. M.F. BUQUICCHIO, 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 29 July 1996 by

O.H.S. and G.R. against Finland and registered on 6 August 1996 under

file No. 32530/96;

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 Iraqi citizens of Kurdish origin, born in 1963

and 1956, respectively. The first applicant is living in Kirkuk, Iraq,

while the second applicant is resident in Tampere, Finland. Before the

Commission they are represented by Mr Daryl Taylor, a language teacher

and translator in Helsinki.

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

summarised as follows.

The second applicant arrived in Finland on 19 December 1993,

holding an Iraqi passport and a visa issued by the Finnish authorities

with a view to enabling her to visit her brother. On 4 January 1994 she

requested asylum, alternatively a residence permit on humanitarian

grounds. As her Iraqi passport was about to expire, the Finnish police

apparently urged her to request that the Iraqi Embassy extend its

validity. She considered, however, that any contact with the Iraqi

authorities would endanger herself and other family members, in

particular as she had crossed the Iraq-Turkey border without the Iraqi

authorities' permission.

On 7 November 1994 the second applicant was granted a one-year

residence permit (with status A 10) and on 28 March 1995 she was

granted an alien's passport. In Finnish law such a passport may be

issued if an alien is unable to obtain a passport from the authorities

of his or her country of citizenship or if another particular reason

warrants the granting of an alien's passport. In the second applicant's

case the authorities relied on the latter grounds.

The validity of both the second applicant's residence permit and

her alien's passport has later been extended. Under Finnish law an

alien, who has been living in Finland for two consecutive years holding

an "A" status residence permit, is eligible for a permanent permit

unless the purpose of his or her stay calls for different

considerations.

The applicants and their families have a long history of mutual

association. They were practically neighbours and their fathers were

close friends for 50 years. The first applicant's sister is married to

the second applicant's brother. The applicants had been likely marriage

candidates long before the second applicant's arrival in Finland. A

widow since 1991, the second applicant's mother was opposed to the

applicants' marriage until her death in 1993. Also for other practical

family reasons the applicants' marriage could not be planned to take

place until 1995.

On 19 July 1995 the second applicant re-entered Iraq allegedly

at considerable personal risk in order to marry the first applicant in

Kirkuk, which is located in the so-called Kurdish area of the country.

The applicants contracted marriage on 25 July 1995, following which the

second applicant returned to Finland. On behalf of her husband she then

lodged a request for a residence permit with the Finnish Embassy in

Ankara, Turkey.

The Embassy requested an opinion from the Aliens Department

(ulkomaalaisvirasto, utlänningsverket) which heard the Security Police

(suojelupoliisi, skyddspolisen). In its opinion of 22 January 1996

the Security Police noted that it had no information concerning the

applicants which would be of any importance from the point of view of

state security. It noted, however, that when requesting asylum in 1994

the second applicant had stated that she was a single woman; that,

having left Iraq via the Kurdish part of the country, she would face

difficulties if she were to return to Iraq; that she had nevertheless

contracted marriage there in 1995; but that, judging from the entry

stamps in her passport she could only have spent some six days with her

future husband before their marriage. The Security Police therefore

suspected that the applicants' marriage was not a genuine one but

rather had been contracted so as to enable the first applicant to enter

Finland.

On 2 February 1996 the Aliens Department issued a negative

opinion concerning the first applicant's request for a residence

permit. It noted that in the asylum interview the second applicant had

stated that as an unmarried woman she could not live alone in Iraq but

wished to live with her brother in Finland. Moreover, she had stated

that she was unable to return to Iraq, given that she had left the

country via "Kurdistan" for Turkey.

The first applicant's request was subsequently refused by the

Embassy, basing itself on the Aliens Department's opinion. No appeal

lay against the refusal.

The first applicant's sister and nephew live in Finland. In

addition to one of her brothers the second applicant's eight nephews

and nieces also live in Finland. The second applicant's two further

brothers enjoy refugee status in Germany and Sweden, respectively.

COMPLAINTS

1. The applicants complain that the refusal to issue the first

applicant with a residence permit in Finland amounts to a violation of

their right to respect for their family life and their right to marry

and found a family. The applicants' place of origin is internationally

recognised as a source of refugees. Given their particular ethnic and

family background, it would be unreasonable to require them to

establish family life in Iraq, where the various persecution allegedly

facing them would be further exacerbated by the fact that the second

applicant has lived for a long time in a Western country. By granting

the second applicant an alien's passport the Finnish authorities

accepted that she could not safely and openly return to Iraq. Such a

passport would hardly be accepted by a third country as a basis for

long-term residence. Therefore, and having regard to the permanent

character of the second applicant's residence in Finland, this country

remains the only country where the applicants can live together as a

family.

The applicants furthermore submit that the Finnish authorities'

suspicion that the applicants' marriage is not genuine is based on

cultural bias and deeply offensive. According to Islamic tradition, the

most important element in a marriage is the consent and co-operation

of the respective families. The applicants were designated as marriage

candidates by their respective fathers long before the second

applicant's arrival in Finland in 1994. The Finnish authorities did not

properly investigate the genuine character of the applicants' marriage,

although a large of number of relatives of theirs are resident in

Finland. The second applicant strongly desires to bear children but is

approaching the age when this will no longer be possible. Apart from

the resultant anxiety her health has also been negatively affected by

the manner in which her husband's request for a residence permit was

dealt with. The applicants invoke Articles 3, 8, 9, 12 and 14 of the

Convention.

2. The applicants also complain about the lack of a remedy within

the meaning of Article 13 of the Convention against the Embassy's

refusal to issue the first applicant with a residence permit.

THE LAW

1. The applicants complain that the refusal to issue the first

applicant with a residence permit in Finland amounts to a violation of

their right to respect for their family life and their right to marry

and found a family. They invoke Articles 3, 8, 9, 12 and 14

(Art. 3, 8, 9, 12, 14) of the Convention.

(a) The Commission will first examine the complaint under Article 3

(Art. 3) of the Convention which reads as follows:

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

degrading treatment or punishment."

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.

Further, the suffering occasioned must attain a certain level before

treatment can be classified as inhuman. The assessment of that minimum

is relative and depends on all the circumstances of the case, such as

the duration of the treatment and its physical or mental effects (see,

e.g., Eur. Court HR, Ireland v. the United Kingdom judgment of 18

January 1978, Series A no. 25, p. 65, para. 162).

The decision of a Contracting State to expel a person may give

rise to an issue under Article 3 (Art. 3) of the Convention, and hence

engage the responsibility of that State under the Convention, where

substantial grounds have been shown for believing that the person

concerned faces a real risk of being subjected to torture or to inhuman

or degrading treatment or punishment in the receiving country. In such

circumstances Article 3 (Art. 3) implies the obligation not to expel

the person in question to that country (see, e.g., Eur. Court HR,

Vilvarajah and Others v. the United Kingdom judgment of 30 October

1991, Series A no. 15, p. 34, paras. 102-103).

The Commission notes that in July 1995 the second applicant left

Finland for a brief visit to Iraq, following which she returned to

Finland. There is no indication that she was the object of the Iraqi

authorities' interest during that visit. Nor have the applicants

substantiated their allegation that they would face persecution by the

Iraqi authorities, should they choose to take up family life in their

country of origin.

The Commission would furthermore observe that immigration

measures taken against one member of a family will inevitably entail

effects on the existing relationship with other members of that family.

Therefore an issue would be likely to arise under Article 3 (Art. 3)

only in exceptional circumstances (for example, where there is a

substantiated level of intense physical and mental suffering as a

direct result of the implementation of the immigration measure). Where,

however, the essence of the complaint is the impact of an immigration

measure on family relationships, the matter is more appropriately to

be examined under Article 8 (Art. 8) of the Convention (see, e.g. No.

26985/95, Dec. 15.5.96, unpublished).

In these circumstances the Commission does not consider that the

applicants' situation discloses treatment proscribed by Article 3

(Art. 3) of the Convention.

It follows that this part of the application must be rejected as

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

(b) The Commission has next considered the complaint under Article 8

(Art. 8) of the Convention which provides as relevant:

"1. Everyone has the right to respect for his private and

family life...

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."

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 into its territory. The extent of a State's obligation

to admit to its territory relatives of settled immigrants will vary

according to the particular circumstances of the persons involved and

the general interest. Where immigration is concerned, Article 8

(Art. 8) cannot be considered to impose on a State a general obligation

to respect immigrants' choice of the country of their matrimonial

residence and to authorise family reunion in its territory (see, e.g.,

Eur. Court HR, Gül v. Switzerland judgment of 19 February 1996, Reports

1996-I, pp. 174-175, para. 38 and Ahmut v. the Netherlands judgment of

28 November 1996, para. 71, to be published in Reports 1996). Whether

removal or exclusion of a family member from a Contracting State is

incompatible with the requirements of Article 8 (Art. 8) will depend

on a number of factors such as whether there are insurmountable

obstacles to taking up family life in another country (cf., e.g., No.

11333/85, Dec. 17.5.85, D.R. 43, p. 227).

In the present case the Commission recalls that the applicants

married in July 1995 when the second applicant, though having been

granted a temporary right of abode in Finland, could not yet expect to

be granted a permanent residence permit. She must accordingly be taken

to have been aware of her precarious immigration status at the time.

It is true that the "A" status of her residence permit would seem to

have indicated to her that she would later be eligible for a permanent

permit. It has not been substantiated, however, that she has been

actually granted such a permit. As this can nevertheless be assumed,

the Commission will take her permanent and lawful residence in Finland

into account.

The Commission nevertheless observes that the applicants are

currently living apart as a result of the second applicant's conscious

decision to settle in Finland rather than remain in Iraq. Above the

Commission has found no indication that her possible return to Iraq

would subject her to a real risk of being treated contrary to Article 3

(Art. 3) of the Convention.

The Commission furthermore notes that the applicants had been

likely marriage candidates long before the second applicant's arrival

in Finland in December 1993. Nevertheless, when requesting asylum or

a residence permit in January 1994 (ie. after the death of her mother,

who had been opposed to the marriage) the second applicant made no

reference to the marriage plans. On the contrary, she underlined that

as an unmarried woman she could not live alone in Iraq but wished to

live with her brother in Finland.

In the overall circumstances of this case the Commission

therefore finds that the Finnish authorities have reasonably been

entitled to refuse the first applicant a residence permit. It follows

that this refusal does not disclose a lack of respect for the

applicants' rights to family or private life as guaranteed by Article 8

para. 1 (Art. 8-1) of the Convention.

It follows that this part of the application must also be

rejected as manifestly ill-founded within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.

(c) The Commission finds no further issue under Articles 9, 12 or 14

(Art. 9, 12, 14) of the Convention.

It follows that this part of the application must also be

rejected as manifestly ill-founded within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.

2. The applicants also complain about the lack of a remedy within

the meaning of Article 13 (Art. 13) of the Convention against the

Embassy's refusal to issue the first applicant with a residence permit.

Article 13 (Art. 13) reads as follows:

"Everyone whose rights and freedoms as set forth in this

Convention are violated shall have an effective remedy

before a national authority notwithstanding that the

violation has been committed by persons acting in an

official capacity."

The Commission recalls that an applicant, who is found to have

no "arguable claim" that another Convention provision has been

violated, is not entitled to a remedy under Article 13 (Art. 13) (see,

e.g., Eur. Court HR, Powell and Rayner v. the United Kingdom judgment

of 21 February 1990, Series A no. 172, pp. 14-15, paras. 31-33 and p.

20, para. 46). The concept of an arguable claim nevertheless falls to

be determined having regard to the particular facts of the case and the

nature of the legal issues raised (cf., e.g., Eur Court HR, Plattform

"Ärzte für das Leben" v. Austria judgment of 21 June 1988, Series A

no. 139, p. 11, para. 27).

In view of its findings above in regard to the applicants' first

complaint the Commission concludes that they had no "arguable claim"

of a breach of any of the provisions invoked therein which would have

entitled them to a remedy under Article 13 (Art. 13). Accordingly,

there is no appearance of any violation of this provision either.

It follows that this part of the application must also be

rejected as 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.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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O.H.S. AND G.R. v. FINLAND

O.H.S. AND G.R. v. FINLAND

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