Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 27057/95

by Mohammad ASLAM

against Norway

The European Commission of Human Rights (Second Chamber) sitting

in private on 9 April 1997, the following members being present:

Mr. J.-C. GEUS, Acting President

Mrs. G.H. THUNE

MM. G. JÖRUNDSSON

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

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 10 April 1995 by

Mohammad ASLAM against Norway and registered on 20 April 1995 under

file No. 27057/95;

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 a Pakistani citizen, born in 1950. He resides

in Kharian, in the district of Gujrat, Pakistan. Before the Commission

the applicant is represented by Mr Leidulv Digernæs, a lawyer

practising in Oslo.

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

summarised as follows.

The applicant was raised in Pakistan where he finished elementary

school. In 1969 he married B, a Pakistani citizen, and two daughters,

S and M, were born in Pakistan in 1973 and 1974 respectively.

The applicant came to Norway in 1973. He received a residence

and work permit there. The applicant's wife and daughters joined him

in Norway in 1979. Four children were born in Norway in 1979, 1980,

1983 and 1988 respectively. While in Norway the family remained in

contact with their families in Pakistan. The daughters S and M spent

several years in Pakistan where they went to school and the four

children, born in Norway, visited Pakistan on several occasions. Today

S is married and lives in the northern part of Norway. M returned to

Pakistan in 1992 and is living there today. The applicant's wife and

the four children born in Norway reside today in Oslo whereas the

applicant lives in Pakistan due to the circumstances set out below.

In 1989 the applicant's eldest daughter, S, commenced a

relationship with another Pakistani citizen residing in Norway. The

applicant did not approve of this and on 30 August 1990 around

15.00 hours he confronted his daughter, who at the time was 16 years

old, with his views thereon. Over a period of approximately 11 hours

he beat his daughter in the face and on the body with his fists and

with different tools, including a plank and the handle of a knife. He

forced her to take off all her clothes following which he raped her

four times while hitting her when she tried to defend herself. The

applicant's wife tried in vain to intervene. S suffered numerous

bruises to her head and body and was hospitalised for three days. She

was subsequently taken into care and the applicant was arrested and

detained on remand.

By judgment of 22 August 1991 the Eidsivating High Court

(Lagmannsrett) found the applicant guilty of inter alia assault and

rape in particularly aggravating circumstances and sentenced him to

three years' imprisonment. Furthermore, he was ordered to pay

60,000 NOK in damages to his daughter.

Following this judgment the Aliens Directorate

(utlendingsdirektoratet) decided, on 3 March 1992, to expel the

applicant and refused him permission ever to return to Norway. This

decision was upheld by the Ministry of Justice on 16 July 1992.

On 20 July 1992 the applicant instituted proceedings against the

State represented by the Ministry of Justice maintaining that the

decision to expel him forever was illegal and/or disproportionate in

the circumstances. By judgment of 10 July 1993 the Oslo City Court

(byrett) found against the applicant and upheld the expulsion order.

The judgment was upheld by the Eidsivating High Court on

15 November 1993. The High Court judgment was appealed against to

the Supreme Court (Høyesterett) which ordered the Oslo City Court to

provide further evidence (bevisopptak for Høyesterett). Following this

the Supreme Court pronounced judgment on 17 January 1995. In its

judgment Justice Backer stated on behalf of the unanimous court inter

alia as follows in respect of Article 8 of the Convention:

(Translation)

"It is clear that this provision applies as part of

Norwegian law ... . When applying it reference must be

made in particular to the case-law of the Court of Human

Rights and the Commission. It is clear that Article 8 has

been used in several cases when the expulsion of an alien

has led to the splitting up of a family.

The first question is whether our case falls under

Article 8 para. 1. It has not been considered to be a

separation of family members if it would not be

unreasonable to expect that the alien's spouse and children

could follow him/her to the foreign country ... . Here it

is a question of how difficult it would be for [the

applicant's] spouse and four youngest children, who live

with her in this country, to move to Pakistan. In my

opinion a lot speaks in favour of finding that it would be

so natural for them to follow the head of the family to

Pakistan if they wish to maintain their family life, in

spite of what has happened, that Article 8 para. 1 does not

apply. The arguments concerning this, however, resembles

the argumentation under Article 8 para. 2. Therefore, I

find it appropriate to leave the question under Article 8

para. 1 open and to discuss the applicability of para. 2

directly.

Under Article 8 para. 2 the question is whether the imposed

separation of the family members can be accepted for any of

the following reasons set out therein. The decisive

element under the Convention is whether it was 'necessary

in a democratic society'. The authorities' interference

must, according to case-law, be based on a 'pressing social

need'. It is not decisive, however, whether the

interference is unavoidable and the authorities have a

'margin of appreciation' when considering the necessity of

the interference ... . The point is that a balanced

evaluation must be made, having regard to the case-law of

the Commission and the Court of Human Rights.

In the present case the Aliens Directorate and the Ministry

of Justice have, despite [the applicant's] long stay in

Norway, undoubtedly a strong basis upon which to expel him

following the gross violations committed vis-à-vis his own

daughter. It may appear strange that indeed the respect

for family life is relied upon by someone who appears to

have violated the preconditions therefor. I refer in this

respect to the fact that also [the applicant's] spouse was

present when the rape and the ill-treatment of their

daughter was committed, and tried in vain to prevent it

from happening. Furthermore, I refer to the fact that it

appears from the Nordstrand social centre's

files that complaints were made about [the

applicant's] brutal methods of raising his

children, something the High Court characterises

in the 1991 judgment as criminal offences.

However, during the proceedings before the

Supreme Court the family members, who were

heard, all spoke in favour of [the applicant].

This includes the victimised daughter.

As regards the family's present situation it has been

submitted that the spouse and the four children, who stay

with her, live off social assistance. In her witness

statement the director of the Nordstrand social centre

characterises the family's situation as follows:

'... the witness explains that the family has integrated

very little into Norwegian society. The family has

practised its culture and religion. The boys think in

accordance with Pakistani norms. The social centre has

tried to explain Norwegian law and norms to the boys but

this comes second to the views of their father. The

witness expresses doubts as to the boys' future in Norway.

Their mother insists on remaining in Norway due to the

boys' possibilities of obtaining an education here. This

is the father's view and the mother is of the same opinion

as the father.

...

... the witness submitted that she has previously worked at

the Søndre Nordstrand social centre. There she worked

primarily with aliens. Compared with other families of

aliens she met there she considers that [the applicant's]

family is isolated. They maintain strongly their culture

and religion. The family hardly accepts Norwegian rules

and norms.

...

... the witness explained that it was her impression that

the mother was kept very isolated. She was unable to go to

the post office to collect the children's allowances. The

witness does not believe that the family is interested in

integrating into Norwegian society.

...

On the basis of the witness's experience with other

families of aliens she considers that [the applicant's]

family is particularly isolated vis-à-vis Norwegian

society.'

It appears further from the evidence that [the applicant's]

spouse, who arrived in Norway in 1979, only commenced a

Norwegian language course following her husband's arrest,

and her knowledge of Norwegian is such that she gave

evidence through an interpreter. Members of [the

applicant's] and his wife's families all live in Pakistan,

except [the applicant's] half-brother who resides in

Norway. The family has kept in contact with its

relativesin Pakistan through frequent visits.The question

whether it would lead to disproportionate negative effects,

both in respect of living in Norway without the head of the

family and in respect of moving to Pakistan is, in my

opinion, first and foremost of relevance vis-à-vis the four

children who were born in Norway. I assume it would be

unfortunate for their schooling to move to Pakistan at

present, at least for the three oldest of them. It has

also been submitted that they have not mastered the

Pakistani written language whereas the oral language causes

no problem to them. On the other hand I consider, on the

basis of what has been submitted, that they are relatively

poorly integrated into Norwegian society and that their

affiliation with Norway is not very strong.

In these circumstances I do not consider that the spouse

and the four children in Norway will be placed in such a

difficult situation, by choosing between remaining here

without the head of their family or moving to Pakistan in

order to be reunited with him, that this outweighs the

strong public interest in being able to expel a foreigner

who has committed such serious criminal offences as is here

the case. ..."

The applicant returned to Pakistan in 1993.

COMPLAINTS

The applicant complains of the fact that he cannot return to his

wife and children in Norway. He considers that it cannot, in the

circumstances, be expected that they move to Pakistan and that the

interference with his family life cannot be considered "necessary in

a democratic society". He refers in particular to the fact that he has

lived his adult life in Norway and there is no reason to believe that

he will commit similar offences again. He invokes Article 8 of the

Convention.

THE LAW

The applicant complains that his expulsion from Norway, in the

circumstances, amounts to an unjustified interference with his right

to respect for his family life. He invokes 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 or morals, or for the protection of the rights and

freedoms of others." The Commission recalls that no right

of an alien to enter or to reside in a particular country,

nor a right not to be expelled from a particular country,

is as such guaranteed by the Convention. However, Article

8 (Art. 8) of the Convention guarantees to everyone, inter

alia, a right to respect for his/her family life and in

this connection the Commission has held that the exclusion

of a person from a country in which his/her close relatives

live may raise an issue under this provision (cf. Eur.

Court HR, Berrehab v. the Netherlands judgment of 21 June

1988, Series A no. 138, p. 15, para. 28 and No. 11274/84,

Dec. 1.7.85, D.R. 43, p. 216).

In situations in which, as in this case, a married man is obliged

to leave a State in which he has been living with his wife and

children, the Commission considers it relevant in particular to examine

the realistic possibilities of the family to follow the husband and

father.

In the present case the Commission recalls that the applicant

lived the first 23 years of his life in Pakistan. He married there in

1969 and his two eldest children were born there. Following his move

to Norway in 1973 it has been established that he kept in close contact

with other family members, as well as his wife's family members, by

frequent visits to Pakistan and he has remained faithful to Pakistani

norms and traditions. Thus, the Commission considers that the fact

that the applicant lived 19 years in Norway does not, in the

circumstances, give rise to problems under Article 8 (Art. 8) of the

Convention.

As regards the applicant's wife and children the Commission

recalls that the former came to Norway in 1979 but did not integrate

into Norwegian society. From the facts of this case the Commission

finds it clear that the applicant's wife would not be confronted with

any particular problems should she choose to join her husband in

Pakistan.

As regards the applicant's six children the Commission recalls

that the eldest daughter, who was the victim of the crimes committed

by the applicant, is now married and lives with her own family in

northern Norway. No issue under Article 8 (Art. 8) would therefore

arise in respect of her. Furthermore, the daughter M actually lives

in Pakistan today.

What remains is the question concerning the applicant's four sons

who were born in Norway and who are today 17, 16, 13 and 9 years old

respectively. Although the Commission acknowledges that living in

Pakistan might cause certain difficulties for them, the circumstances

of this case do not disclose that these difficulties would be such that

it could not be expected of them to move to Pakistan if they wanted to

continue their family life with their father. In particular the

Commission recalls that all children have been brought up under

Pakistani norms and traditions and will, in Pakistan, enjoy the support

not only of their parents but also of their uncles, aunts, grandparents

and other relatives.

In these circumstances the Commission finds that the Norwegian

authorities have not shown any lack of respect for the applicant's

family life as no insurmountable obstacles, which would prevent the

family from being reunited in Pakistan, have been established. 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.-T. SCHOEPFER J.-C. GEUS

Secretary Acting President

to the Second Chamber of the Second Chamber

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ASLAM v. NORWAY

ASLAM v. NORWAY

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