Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 28071/95

by Fatih SACIC

against Sweden

The European Commission of Human Rights (Second Chamber) sitting

in private on 11 April 1996, the following members being present:

Mrs. G.H. THUNE, Acting President

MM. H. DANELIUS

G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

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 22 October 1993

by Fatih Sacic against Sweden and registered on 31 July 1995 under file

No. 28071/95;

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

summarised as follows.

The applicant, born in 1940, is from Novi Pazar which is situated

in the Serbian part of the Sandzak region. He is a muslim. According

to the passport he possessed upon arrival in Sweden he is a citizen of

the former Republic of Yugoslavia. At present he resides with his wife

at Valdemarsvik, Sweden. In the proceedings before the Commission the

applicant is represented by Mr. Thomas Wasteson, a lawyer practising

at Linköping, Sweden.

The applicant gave up a post as director of a transport company

in 1986. Subsequently, he worked as a lawyer in Novi Pazar, Serbia. In

1991 he allegedly participated in the creation of the Party for

Democratic Action (hereinafter the SDA) in the area. Due to his

affiliation to the SDA he and his wife were harassed by Serbian

soldiers who controlled the area in which they lived and the applicant

considered that he was under constant surveillance. Eventually the

applicant decided to leave Serbia together with his wife as he was

informed that he might be arrested. They arrived in Sweden on

22 June 1992 and applied for asylum with reference to the general

situation in Serbia and to his affiliation to the SDA. The applicant

maintained that he would be persecuted and arrested in Serbia due to

his political activities and since he carried military secrets obtained

while he was director of the transport company. He also referred to his

poor state of health, having suffered a heart attack in 1991.

On 17 September 1993 the National Immigration Authority (Statens

Invandrarverk, the SIV) rejected the applicant's request for asylum.

On the basis of the applicant's submissions the SIV found no reason to

believe that his situation was such that he was entitled to asylum. Nor

was his state of health such that a residence permit should be granted

on humanitarian grounds.

The applicant appealed against the decision to the Aliens Appeals

Board (Utlänningsnämnden). It appears that in the meantime the

applicant's adult son and daughter arrived in Sweden with their

families and obtained residence permits under a special provision

applicable to families with small children. Accordingly, the applicant

maintained, in addition to his previous submissions, that his request

for a residence permit ought to be granted for reasons of family

unification.

The Aliens Appeals Board rejected the applicant's application on

24 January 1995. As regards the applicant's affiliation to the SDA the

Board had obtained information from the Swedish Embassy

(ambassadutredning) according to which the applicant was unknown to the

SDA leadership. Accordingly, the Board found that his political

activity was not such that asylum could be granted. Furthermore, the

request for a residence permit for reasons of family unification was

rejected as provisions to that effect only applied to parents over

sixty. Finally, the Board found no other humanitarian reasons on the

basis of which a residence permit could be granted. A subsequent

application was rejected on 27 October 1995 as it contained no relevant

new information. It appears that the date of enforcement has not yet

been fixed.COMPLAINTS

The applicant complains that he risks torture or inhuman or

degrading treatment if returned to Serbia. He refers in this respect

to Article 3 of the Convention.

Under Article 8 of the Convention the applicant maintains that

an expulsion from Sweden would deny him the possibility to maintain

personal contacts with his children and grandchildren.

Finally, the applicant complains that his requests for asylum

were not examined fairly. He does not invoke any Articles of the

Convention in this respect.

THE LAW

The applicant complains that upon return to Serbia he will be

subjected to treatment contrary to Article 3 (Art. 3) of the Convention

which reads:

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

degrading treatment or punishment."

The Commission recalls that Contracting States have the right to

control the entry, residence and expulsion of aliens. The right to

political asylum is not protected in either the Convention or its

Protocols (cf. Eur. Court H.R., Vilvarajah and Others judgment of

30 October 1991, Series A no. 215, p. 34, para. 102). However,

expulsion by a Contracting State of an asylum seeker may give rise to

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

the responsibility of the State under the Convention, where substantial

grounds have been shown for believing that the person concerned would

face a real risk of being subjected to torture or to inhuman or

degrading treatment or punishment in the country to which he is to be

expelled (ibid., para. 103). A mere possibility of ill-treatment is not

in itself sufficient (ibid., p. 37, para. 111).

The applicant submits that he will be punished for his political

activities. In his applications to the Swedish immigration authorities,

he has further referred to the general situation in Serbia, in

particular the situation of the muslims living in the Sandzak region.

The Commission finds that the general situation in the Sandzak

region is not of a kind that an expulsion to that part of Serbia would

as such amount to a violation of the Convention or its Protocols. In

order to raise an issue under Article 3 (Art. 3) of the Convention,

there should, accordingly, be some substantiation as to the existence

of a specific risk for the applicant of treatment contrary to that

provision.

However, as to the specific problems alleged by the applicant the

Commission finds that it has not been established that there are

substantial grounds for believing that the applicant would be exposed

to a real risk of being subjected to treatment contrary to Article 3

(Art. 3) of the Convention if returned to Serbia.

Moreover, the Commission recalls that Chapter 8, Section 1 of the

Swedish Aliens Act (Utlänningslagen, 1989:529) imposes an absolute

obligation on the enforcement authority in Sweden to refrain from

expelling an alien should the human rights situation in the receiving

country constitute a firm reason to believe that he or she would be in

danger of being subjected to capital or corporal punishment, or

torture, in that country.

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

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

(Art. 27-2) of the Convention.

2. The applicant also complains that as his son and daughter and

their families now live in Sweden an expulsion would prevent him from

maintaining a personal contact with them contrary to Article 8

(Art. 8) of the Convention which reads:

"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 Convention does not guarantee a

right to enter or reside in a particular country. However, the

Commission has held that, in view of the right to respect for family

life ensured by Article 8 (Art. 8) of the Convention, the exclusion of

a person from a country in which his or her close relatives reside may

raise an issue under this provision of the Convention (cf., for

example, No. 13654/88, Dec. 8.9.88, D.R. 57 p. 287).

In the present case the Commission notes that the applicant has

not submitted any evidence which could clarify the degree of dependency

which exists between him and his relatives. However, for the purposes

of this case the Commission accepts that the applicant's expulsion may

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

life.

The question which then must be examined is whether this

interference was justified under the second paragraph of Article 8

(Art. 8) of the Convention, i.e. whether it was in accordance with the

law, had a legitimate aim and was necessary in a democratic society in

order to achieve the aforesaid aim.

The Commission recalls that the decision of the Swedish

authorities not to grant the applicant a residence permit and to expel

him was taken in accordance with the Aliens Act (Utlänningslagen) which

inter alia aims at regulating the right of aliens to take up residence

in the country.

Having regard to the close connection between the policy of

regulating immigration and considerations pertaining to the economic

well-being of the country and the public order, the Commission

considers that the decision not to grant the applicant asylum and to

expel him was taken in pursuit of legitimate aims within the meaning

of Article 8 para. 2 (Art. 8-2) of the Convention, i.e. the economic

well-being of the country and the prevention of disorder.

What remains is accordingly to examine whether the interference

was "necessary". In this connection the Commission recalls, as already

indicated above, that the Convention does not in principle prohibit the

Contracting States from regulating the entry and length of the stay of

aliens, and the Commission's function is not to pass judgment on

immigration or residence policies as such. It only has to examine the

interference complained of and to weigh the legitimate aims pursued

against the seriousness of the interference with the applicant's right

to respect for his family life (cf. Eur. Court H.R., Berrehab judgment

of 8 March 1985, Series A no. 138, p. 16, para. 29).

In the present case the Commission recalls that when the

applicant applied for asylum in Sweden his application did not concern

a person who already lived there lawfully, but an alien seeking a

permanent residence permit for the first time. His wish to reside

permanently in Sweden was not based on any legitimate expectations, nor

was it based on a request for family unification as he and his wife had

left Serbia leaving the other relatives behind. Furthermore, it appears

that the applicant's two adult children were not in the former Republic

of Yugoslavia living at home with their parents but lived elsewhere

together with their spouses and children.

In these circumstances the Commission finds that respect for the

applicant's family life does not outweigh the general interest of the

economic well-being of the country and the prevention of disorder. The

interference with the applicant's right under Article 8 para. 1

(Art. 8-1) of the Convention was therefore justified under para. 2 of

Article 8 (Art. 8-2) 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. Finally, the applicant complains that his asylum applications

have not been examined fairly.

However, the Commission has constantly held that the procedures

followed by the public authorities to determine whether an alien should

be allowed to stay in a country or should be expelled do not come

within the scope of the Convention; in particular such proceedings do

not involve the determination of civil rights within the meaning of

Article 6 (Art. 6) of the Convention (cf., e.g., No. 12122/86, Lukka

v. the United Kingdom, D.R. 50 p. 268, and No. 12364/86, Kilic v.

Switzerland, 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.

Secretary to Acting President

the Second Chamber of the Second Chamber

(M.-T. SCHOEPFER) (G.H. THUNE)

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SACIC v. SWEDEN

SACIC v. SWEDEN

LEXI