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AS TO THE ADMISSIBILITY OF

Application No. 28275/95

by Fasika KIFLE

against Sweden

The European Commission of Human Rights sitting in private on

26 October 1995, the following members being present:

MM. S. TRECHSEL, President

H. DANELIUS

C.L. ROZAKIS

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

G.B. REFFI

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

Mr. M. de SALVIA, Deputy Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 27 April 1995 by

Fasika Kifle against Sweden and registered on 22 August 1995 under file

No. 28275/95;

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 an Ethiopian citizen, born in 1959 and currently

in compulsory psychiatric care at Bollnäs, Sweden.

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

summarised as follows.

The applicant claims to be a former Lieutenant Colonel of the

Ethiopian army and the grandson of the "former Ethiopian emperor

Menilik II". In May 1989 he allegedly plotted a coup d'état against the

Government but left the country before the regime was finally

overthrown. In March 1990 he arrived in Sweden, where he has a sister

and a brother. In 1990 he underwent short-term psychiatric treatment.

It appears that he was granted a residence permit in Sweden.

On 27 April 1995 the District Court (tingsrätten) of Sandviken

found the applicant guilty of aggravated rape committed in

December 1994. He was sentenced to placement in compulsory psychiatric

care and ordered to be deported. He has been diagnosed as schizophrenic

and paranoid.

On 3 July 1995 the Court of Appeal (hovrätten) of Lower Norrland

upheld the District Court's judgment. Leave to appeal to the Supreme

Court (Högsta domstolen) was refused on 3 August 1995.

On 30 August 1995 the County Administrative Court (länsrätten)

of Gävleborg ruled that the applicant could be kept in psychiatric care

until 30 March 1996.

The applicant has submitted a certificate issued by the Stockholm

Embassy of the Transitional Government of Ethiopia on 2 July 1994.

According to this document, the applicant was "a member of the

disbanded Ethiopian military establishment" and served the military "of

the past regime" as a Major "before his departure from Ethiopia in

opposition to the military regime before its overthrow in 1991".

According to the 1989 Aliens Act (utlänningslag 1989:529), a

court convicting an alien of a criminal offence may, on certain

conditions, also order his or her deportation (chapter 4, sections 7

and 8). A residence permit may nevertheless be granted if a request to

this effect, lodged by an alien who is to be refused entry or expelled

by virtue of a decision which has acquired legal force, is based on new

circumstances and provided the alien is either entitled to asylum or

there are weighty humanitarian reasons for allowing him or her to stay

in Sweden (chapter 2, section 5, subsection 3).

When considering a new request for a residence permit lodged by

an alien who is to be expelled according to a decision which has

acquired legal force, the National Immigration Board (Statens

invandrarverk), and in certain cases also the Government, may stay the

enforcement of that decision. For particular reasons the Board may also

otherwise stay enforcement (chapter 8, section 10). Similarly, the

Aliens Appeals Board (Utlänningsnämnden) may decide to stay the

enforcement of a previous expulsion order.

If the Government find that a judgment or a decision ordering the

deportation of an alien on account of a criminal offence cannot be

enforced or if, for other particular reasons, it should no longer be

in force, it may quash the judgment or decision either wholly or

partly. In this connection the Government may also decide to grant the

alien a residence and work permit. If the judgment or decision is not

quashed, the Government may, for particular reasons, issue a temporary

residence and work permit. The deportation order shall not be enforced

while such a permit is valid (chapter 7, section 16, as amended by Act

no. 1991:1573).

COMPLAINT

The applicant complains about his forthcoming deportation to

Ethiopia. He refers to his past as a high-ranking officer in the army

of a previous regime of that country. He also refers to his present

mental state. He invokes no particular provision of the Convention.

THE LAW

The Commission understands that the applicant complains about his

forthcoming deportation to Ethiopia on the following grounds. On the

one hand, he fears ill-treatment on account of his military past, if

returned to that country. On the other hand, he considers that his

present mental state is such that an enforcement of the deportation

order would in itself violate his Convention rights.

The Commission considers that these two aspects of the

application would both fall to be considered 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."

The Commission nevertheless first recalls that under Article 26

(Art. 26) of the Convention it may only deal with a matter after all

domestic remedies have been exhausted, according to the generally

recognised rules of international law. Where doubts exist as to the

effectiveness of a remedy, that remedy must be tried (e.g.,

No. 10148/82, Dec. 14.3.85, D.R. 42, p. 98; cf. also Eur. Court H.R.,

Cardot judgment of 19 March 1991, Series A no. 200, p. 18, para. 34).

In the present case the Commission finds no indication that the

applicant, at any stage during the criminal proceedings ending on

3 August 1995, invoked the alleged risk that he could be persecuted on

his return to Ethiopia on account of his alleged military background.

Nor is there any indication that he has requested a residence permit

on humanitarian grounds in pursuance of chapter 2 of the Aliens Act,

referring to his current mental state. Finally, there is no indication

that he has requested the Government to issue him with a temporary

residence permit in pursuance of chapter 7 of the Act.

The Commission therefore concludes that the applicant has not

exhausted all domestic remedies available to him under Swedish law. An

examination of the complaint does not disclose the existence of any

special circumstance which might have absolved him, according to the

generally recognised rules of international law, from exhausting the

remedies at his disposal.

It follows that the application must as a whole be rejected for

non-exhaustion of domestic remedies under Article 27 para. 3

(Art. 27-3) of the Convention.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

Deputy Secretary to the Commission President of the Commission

(M. de SALVIA) (S. TRECHSEL)

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KIFLE v. SWEDEN

KIFLE v. SWEDEN

LEXI