Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 27442/95

by Abdulkerim TUNC and Family

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 17 March 1995 by

Abdulkerim TUNC and Family against Sweden and registered on 31 May 1995

under file No. 27442/95;

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 applicants, may be

summarised as follows.

All applicants are Turkish citizens. The first applicant was born

in 1964 and the second applicant, his wife, was born in 1963. The

third, fourth, fifth, sixth, seventh and eighth applicants are their

children, born in 1982, 1984, 1986, 1987, 1992 and 1993 respectively.

The ninth applicant is the first applicant's sister, born in 1966 and

the tenth and eleventh applicants are her children, born in 1993 and

1994 respectively. All applicants are at present living in a church at

Sollefteå, Sweden. They are represented by Mr. Claes Åberg.

At the age of sixteen the first applicant became involved in the

political activities of the Kurdish Democratic Party - the KDP - in the

area near Durakbasi in the South-east of Turkey. In September 1980 he

was arrested at Diyarbakir and detained for 45 days, during which he

was allegedly tortured. His family managed to buy him out of the

prison. In January 1982 he was arrested and detained again for 45 days.

He was allegedly tortured again but released from prison after his

family had once more paid a sum of money. During both periods of

detention the police wanted to obtain information about the KDP and its

members.

In 1985 the first applicant was called up for military service

and was stationed in eastern Turkey. He submits that he participated

in several operations against the Kurdish PKK guerillas and in 1986 he

was furthermore sent to Iraq to fight against the Kurds living there.

While in Iraq he deserted from the army and remained there until

September 1988 when he returned to Turkey. He stayed in Istanbul until

25 January 1989 when he flew to Warsaw using a passport, visa and air

tickets which had been "arranged" by the KDP. He submits that his

family paid 3 million Turkish lira for the assistance. From Poland the

first applicant went by boat to Sweden where he arrived on

28 January 1989 and applied for asylum referring to his political

activities and to the fact that he had deserted from the army.

On 26 May 1989 the National Immigration Authority (Statens

invandrarverk - the SIV) rejected the application. The appeal was

rejected by the Government on 1 February 1990. Two new applications

were rejected by the SIV on 5 and 23 March 1990.

Subsequently the first applicant applied for asylum under a false

identity, claiming to come from Iraq. On 7 May 1991 he was granted a

permanent residence permit. His wife and four children, the second,

third, fourth, fifth and sixth applicants, obtained a residence permit

on 17 September 1991 and thus joined the first applicant in Sweden,

also using false identities.

In 1993 the SIV obtained information about the above

irregularities and requested clarification from the family. Admitting

the use of false identities the family now applied for asylum referring

to the first applicant's above-mentioned political activities, to his

desertion from the army and to the fact that the family had now been

in Sweden for some years. On 11 January 1994 the SIV withdrew the

family's residence permits as these had been obtained on the basis of

incorrect submissions and rejected the requests for asylum.

In the meantime the first applicant's sister, the ninth

applicant, had arrived in Sweden and also obtained a residence permit

using a false identity. Following the discovery thereof her residence

permit was withdrawn on 14 January 1994 and her new application for

asylum, which was also submitted on behalf of her son, the tenth

applicant, was rejected the same day.

All applicants appealed against these decisions to the Aliens

Board (Utlänningsnämnden). On 1 November 1994 the Board rejected the

appeals stating inter alia as follows:

(translation)

"(The first applicant) has in this case admitted that he

has applied for asylum using two different identities. The

Board agrees with the SIV that (the first applicant) and

also his wife ... deliberately gave false information about

their and their children's identities and previous

activities in order to obtain a residence permit in Sweden.

The false information was of importance for the evaluation

of the permit question. Therefore there is reason to

withdraw (the first applicant's) permanent residence

permit... .

The Board is aware of the fact that the situation in the

South-east of Turkey from where the family comes recently

has become more difficult for those living there. However,

having regard to what is otherwise known about the

situation in Turkey and after consultation with the UNHCR,

the Board finds that a person from the South-east of

Turkey, by staying in other parts of Turkey, can avoid the

troubles which exist in this region. Accordingly, the fact

that a person comes from the South-east of Turkey is not as

such a reason to grant asylum or an impediment to

refoulement to Turkey. The reasons submitted by asylum

seekers from the South-east of Turkey shall therefore be

examined in the usual individual manner.

The Board agrees with the SIV that what (the first

applicant) and (the second applicant) have alleged in

regard to Turkey is not sufficient for considering them and

their children as refugees according to Chapter 3 section 2

of the Aliens Act (Utlänningslagen). ...

Since there are otherwise no humanitarian or other reasons

to change the decision appealed against (the first

applicant's) permanent residence permit shall be withdrawn

and an expulsion ... of the family shall follow. ..."

A similar decision was taken by the Aliens Board concerning the

first applicant's sister and her two children.

Further applications for residence permits were rejected by the

Aliens Board on 13 January, 9 May and 7 July 1995.

COMPLAINT

The applicants complain that their expulsion to Turkey would be

in violation of Article 3 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 17 March 1995 together with a

request, under Rule 36 of the Commission's Rules of Procedure, to take

the measures necessary to stay the execution of the expulsion order.

On 23 March 1995 the President of the Commission decided not to

apply Rule 36 of the Rules of Procedure.

THE LAW

The applicants complain that in particular the first applicant

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

returned to Turkey. Article 3 (Art. 3) of the Convention reads:

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

degrading treatment or punishment."

The applicants maintain that due to the first applicant's

desertion he risks being subjected to torture, inhuman or degrading

treatment or punishment by the Turkish military. Furthermore, they

maintain that he risks similar treatment from members of the PKK since

he participated in operations against this organisation. The applicants

also refer to the first applicant's political activities and to the

fact that they have all now lived in Sweden for some years.

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 (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, 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 or she is

to be expelled (ibid., para. 103). A mere possibility of ill-treatment

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

The Commission notes that the expulsion in question is foreseen

to a State, Party to the Convention, which has declared that it

recognises the competence of the Commission to receive individual

petitions lodged under Article 25 (Art. 25) of the Convention.

Furthermore, the Commission considers that the general situation in

Turkey is not such that an expulsion to that country would in itself

amount to a violation of the Convention or any of its Protocols.

As regards the particular circumstances of the present case the

Commission does not consider that the first applicant's affiliation to

the KDP is of such a character that he would risk treatment contrary

to Article 3 (Art. 3) in Turkey for that reason. Concerning his

possible imprisonment for the offence of desertion from the army, the

Commission does not find such a penalty so severe as to raise an issue

under Article 3 (Art. 3) of the Convention (cf. No. 12364/86,

Dec. 17.10.86, D.R. 50, p. 280 and No. 11017/84, Dec. 13.3.86, D.R. 46,

p. 176).

The Commission further finds no substantiation of the allegations

of possible ill-treatment of other family members upon their return to

Turkey.

The Commission concludes, on the evidence before it concerning

the applicants' background and the general situation in Turkey, that

it has not been established that there are substantial grounds for

believing that the applicants would be exposed to a real risk of being

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

Convention, if expelled from Sweden to that country.

Moreover, the Commission recalls from its previous case-law that

Chapter 8, section 1 of the Swedish Aliens Act 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 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 to the Acting President

the Second Chamber of the Second Chamber

(M.-T. SCHOEPFER) (G. JÖRUNDSSON)

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TUNC and Family v. SWEDEN

TUNC and Family v. SWEDEN

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