Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 26305/95

by Shaban DUSHI

against Sweden

The European Commission of Human Rights (Second Chamber) sitting

in private on 19 October 1995, the following members being present:

MM. G. JÖRUNDSSON, Acting President

H. DANELIUS

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 31 October 1994

by Shaban Dushi against Sweden and registered on 25 January 1995 under

file No. 26305/95;

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 1971, is a so-called Kosovo Albanian and

a citizen of Yugoslavia. At present he resides at Malmberget, Sweden.

In October 1991 he was called up to serve in the Federal Yugoslav

army. As he refused to sign the calling-up papers, the police was

searching for him. He hid from the police until he left the country in

January 1992. On 14 January he entered Sweden and applied for asylum.

In his application, he stated that upon return to Yugoslavia he would

be sent to the front-line. He also referred to the general situation

in Yugoslavia and alleged that Kosovo Albanians are persecuted and

discriminated against. He further submitted a document, which he

claimed to be the calling-up order.

On 29 June 1993 the National Immigration Board (Statens

invandrarverk) rejected the application. The Board stated that it was

unlikely that the applicant would be punished for evading military

service and that, in any case, the possible sanction would not be

severe. Moreover, he would not be forced to do active service. The

Board further considered that the general situation in Yugoslavia and

the other information given by the applicant were not such as to

constitute a ground for granting him asylum or a residence permit. It

had translated the document submitted by the applicant and noted that

it was an order that he should serve 50 days in prison according to a

sentence passed by a court.

Reiterating what he had stated before the Immigration Board and

submitting a new document, the applicant appealed to the Aliens Appeals

Board (Utlänningsnämnden). On 21 September 1994 the appeal was

rejected. The Appeals Board agreed with the findings of the Immigration

Board. It also noted that the new document was a summons to a hearing

of a municipal court concerning certain economic and family law

offences.

The applicant later lodged fresh applications with the Appeals

Board. They were rejected by decisions of 4 and 19 October 1994.

COMPLAINTS

1. The applicant complains that the Swedish immigration authorities

were not impartial when they decided on his applications, as they

failed to take into account his statements and the documents he had

submitted. He invokes Article 6 of the Convention.

2. Without invoking any further Articles, he also claims that upon

return to Yugoslavia he will receive a heavy penalty for desertion.

THE LAW

1. The applicant complains that his applications have not been

examined impartially. He invokes Article 6 (Art. 6) of the Convention,

which, in relevant parts, reads as follows:

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

is entitled to a fair ... hearing ... by an independent and

impartial tribunal ..."

However, the Commission has constantly held that the procedures

followed by public authorities to determine whether an alien should be

allowed to stay in a country or should be expelled 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, Dec. 16.10.86, D.R. 50, p. 268, and 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.

2. The applicant further claims that upon return to Yugoslavia he

will receive a heavy penalty for desertion.

The Commission has considered this part of the application 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 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., p. 34, para. 103). A mere possibility of ill-treatment

is not in itself sufficient (ibid., p. 37, para. 111).

The applicant submits that he will receive a heavy penalty for

desertion. In his applications to the Swedish immigration authorities,

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

particular the situation of the Kosovo Albanians.

The Commission cannot find it established that the general

situation in Kosovo is such that any expulsion of persons coming from

that area would be contrary to the Convention (cf. No. 21576/93, F.D.

v. Norway, Dec. 10.9.93, unpublished). 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 risk alleged by the applicant - that

he will receive a heavy penalty for desertion - the Commission does not

find any indication that any such sanction would be so severe as to

raise an issue under Article 3 (Art. 3) of the Convention (cf.

No. 12364/86, referred to above).

Accordingly, the Commission concludes 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 Yugoslavia.

Moreover, the Commission recalls from its previous case-law 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 (cf., e.g.,

No. 25387/94, Kas Ibrahim and Parsom v. Sweden, Dec. 4.7.95,

unpublished).

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.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary Acting President

to the Second Chamber of the Second Chamber

(M.-T. SCHOEPFER) (G. JÖRUNDSSON)

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DUSHI v. SWEDEN

DUSHI v. SWEDEN

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