Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 27327/95

by Richard Ian BOYCE

against Sweden

The European Commission of Human Rights (Second Chamber) sitting

in private on 16 October 1996, the following members being present:

Mrs. G.H. THUNE, President

MM. G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

L. LOUCAIDES

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 24 April 1995 by

Richard Ian BOYCE against Sweden and registered on 15 May 1995 under

file No. 27327/95;

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 citizen of Barbados born in 1965. He resides

at Christ Church, Barbados. Before the Commission he is represented

by Mr. Thomas Wasteson, a lawyer practising at Linköping, Sweden.

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

summarised as follows.

The applicant arrived in Sweden on 10 December 1991. He was

granted a residence permit from 31 January 1992 on account of his

marriage to a Swedish woman, M.B. The permit was later extended until

2 December 1994. The applicant and M.B. have two children, a son born

in October 1991 and a daughter born in March 1994. In June 1993 the

couple filed a petition for divorce and, by judgment of the District

Court (tingsrätten) of Linköping of 7 July 1994, the divorce was

finalised.

On 22 August 1994 the District Court convicted the applicant of

two counts of battery, aggravated battery, threatening behaviour,

trespassing and violent resistance. The offences, some of which were

directed against M.B., had been committed in August 1993 and July 1994.

The applicant was sentenced to one year's imprisonment.

The public prosecutor called for the applicant's expulsion. The

District Court noted that the applicant was a drug abuser and that the

crimes he had committed, especially the aggravated battery, were of a

serious nature. This had to be weighed against the applicant's

connections to Sweden. In this respect, the Court noted that the

applicant had been in Sweden for more than two years but did not have

a job and had not in any other significant way integrated into Swedish

society. However, an expulsion of the applicant would effectively

render further contacts between him and his two children impossible.

On balance, the Court therefore concluded that there were not

sufficient reasons to order the applicant's expulsion.

No appeal was made against the District Court's judgment.

M.B. instituted custody proceedings in the District Court,

claiming sole custody of the two children. The applicant conceded to

her request. Accordingly, on 31 October 1994, the Court decided

provisionally to grant M.B. sole custody. The applicant's request for

provisional access was rejected, however, as the Court found this not

to be in the children's best interests. The decision was upheld on

appeal by the Göta Court of Appeal (Göta hovrätt) on 3 November 1994.

On 29 November 1994 the District Court reversed its previous decision

and decided provisionally to grant the applicant access to his son once

a month for four hours in the presence of a contact person appointed

by the social authorities at Linköping. The Court further ordered the

social authorities to investigate the question of access.

The applicant later applied for an extension of his residence

permit. After having refused the applicant an oral hearing, the

National Immigration Board (Statens invandrarverk), on 29 December

1994, rejected the application. The Board had regard to the offences

of which the applicant had been convicted and considered that the ties

between the applicant and his children were not close. The Board

further ordered the applicant's expulsion and issued a prohibition on

return valid for five years from its decision.

On 13 March 1995 the Aliens Appeals Board (Utlänningsnämnden)

upheld the Immigration Board's decision save for the prohibition on

return, which was revoked due to the pending access investigation. As

regards the applicant's relation to his children, the Appeals Board

noted that he had taken care of his son between January and October

1993 when M.B. had been working part-time. Thereafter, the applicant

and the son had had only sporadic contacts. Like the Immigration

Board, the Appeals Board rejected the applicant's request for an oral

hearing.

The applicant was expelled to Barbados on 22 March 1995.

The proceedings concerning custody and access are still pending

in the District Court. In March 1996 the applicant requested access

to his children one week every summer and one week every second

Christmas. M.B. accepted his request on the condition that a contact

person from the social authorities be present at the meetings. The

applicant's representative has not been able to reach the applicant and

obtain his views on this condition since March 1996. Furthermore, the

social authorities have not had the opportunity to observe the

applicant and the children together and have thus not concluded the

investigation requested by the Court.

Under Chapter 2, Section 1 of the Aliens Ordinance (Utlännings-

förordningen, 1989:547), a citizen of Barbados may enter Sweden without

a visa. Chapter 1, Section 4 of the Aliens Act (Utlänningslagen,

1989:529) provides that a residence permit is required for a stay

exceeding three months.

COMPLAINTS

1. The applicant alleges that his expulsion from Sweden prevents

contacts between him and his children and thus fails to respect his

family life. He invokes Article 8 of the Convention.

2. The applicant also maintains that he has not had a fair hearing

in the case concerning custody and access as the expulsion order makes

it very difficult or impossible for him to appear in court or take part

in the social authorities' access investigation. In this respect, he

invokes Article 6 of the Convention.

3. Further under Article 6 of the Convention, the applicant

complains that the National Immigration Board and the Aliens Appeals

Board did not hold oral hearings.

THE LAW

1. The applicant complains that his expulsion from Sweden prohibits

contacts between him and his children and thus fails to respect his

family life. He invokes Article 8 (Art. 8) of the Convention, which

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 and 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. Eur. Court

HR, Moustaquim v. Belgium judgment of 18 February 1991, Series A no.

193, pp. 19-20, paras. 43-46).

The Commission notes, however, that the Aliens Appeals Board,

due to the pending access investigation, revoked the prohibition on

return imposed by the National Immigration Board. Furthermore, Chapter

2, Section 1 of the Aliens Ordinance provides that a citizen of

Barbados may enter Sweden without a visa. The applicant may thus

return to Sweden and stay there for periods of three months. In this

connection, the Commission further notes that the applicant, in the

pending District Court proceedings, has requested access to his

children one week every summer and one week every second Christmas.

Accordingly, the expulsion order does not prevent the applicant from

meeting his children on the requested dates. Moreover, the Commission

cannot find, in the circumstances of the case, that the inconvenience

of having to travel from Barbados to Sweden on these occasions places

an unreasonable burden on the applicant.

In view of the above, the Commission concludes that the present

case does not reveal any failure of the Swedish authorities to respect

the applicant's family life under Article 8 (Art. 8) 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 applicant also complains that he has not had a fair hearing

in the case concerning custody and access as the expulsion order makes

it very difficult or impossible for him to appear in court or take part

in the social authorities' access investigation. In this respect, he

invokes Article 6 (Art. 6) of the Convention which, in so far as

relevant, reads as follows:

"1. In the determination of his civil rights ..., everyone

is entitled to a fair and public hearing ..."

Recalling its findings under 1 above, the Commission considers

that there is nothing to prevent the applicant from travelling to

Sweden to appear in court or to take part in the access investigation.

There is thus no indication of a violation of the applicant's rights

under Article 6 (Art. 6) of the Convention.

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.

3. Further under Article 6 (Art. 6) of the Convention, the applicant

complains that the National Immigration Board and the Aliens Appeals

Board did not hold oral hearings.

The Commission recalls that the proceedings in which it is merely

decided whether an individual should be expelled from a country do not

come within the scope of Article 6 (Art. 6) of the Convention (cf.,

mutatis mutandis, No. 12364/86, Kilic v. Switzerland, Dec. 17.10.86,

D.R. 50 p. 280).

It follows that this part of the application is incompatible

ratione materiae with the provisions of the Convention 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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BOYCE v. SWEDEN

BOYCE v. SWEDEN

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