AS TO THE ADMISSIBILITY OF

                      Application No. 25129/94

                      by Dalip TAHIRI

                      against Sweden

      The European Commission of Human Rights (First Chamber) sitting

in private on 11 January 1995, the following members being present:

           Mr.   C.L. ROZAKIS, President

           Mrs.  J. LIDDY

           MM.   F. ERMACORA

                 E. BUSUTTIL

                 M.P. PELLONPÄÄ

                 B. MARXER

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 G. RESS

           Mrs.  M.F. BUQUICCHIO, 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 15 June 1994 by

Dalip TAHIRI against Sweden and registered on 13 September 1994 under

file No. 25129/94;

      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 is a so-called Kosovo Albanian, born in 1971. He

is a Muslim. He is at present residing at Lidköping, Sweden. Before the

Commission he is represented by Mr. Haxhi Osmanaj, who is a free-lance

journalist by profession.

      Before the applicant came to Sweden he lived with his family in

the town Mushtisht in Suharek county, Kosovo, where he had been unable

to continue his high school studies (gymnasieskolan) since the schools

were closed. He was hereafter unemployed. The applicant submits that

he became a member of an illegal political party called Beslidhja

demokratike kombetare shiptare (BDKSH) which is working for Kosovo's

secession from former Yugoslavia and its annexation to Albania.

Furthermore, he submits that he was harassed by the Serbian police

during an incident around New Year 1991/92 where he was taken to the

local police station and interrogated for three hours apparently due

to his participating in a demonstration.

      The applicant also submits that he was called to serve in the

Federal Yugoslav army on two occasions in June and once in July 1992.

It was the Serbian police which came looking for him. However, he had

managed to hide each time. Therefore, he decided to leave the country

on 13 September 1992.

      The applicant came to Sweden on 17 September 1992 as a tourist.

One of his brothers has been living in Sweden since 1989 whereas the

rest of his family, i.e. his parents and his five other brothers and

sisters are still in Kosovo. On 18 January 1993 the applicant requested

that his tourist visa be prolonged. This was rejected by the National

Immigration Board (Statens Invandrarverk, the "SIV") in May 1993 and

he was requested to leave the country. On 20 June 1993 the applicant

went to Norway and applied for asylum there. The Norwegian authorities

rejected his request and the applicant was returned to Sweden.

      In Sweden the applicant then submitted a request for asylum. In

his application he submitted, in addition to the above-mentioned facts,

that he had left former Yugoslavia in order to avoid the draft orders

as he feared being sent to the front in Bosnia or Croatia.

      The SIV held a hearing on 13 July 1993 where the applicant

explained the above and added, inter alia, that he risked imprisonment

in Kosovo if his membership of BDKSH would be disclosed.

      On 28 October 1993 the applicant requested an additional hearing

and submitted new facts in support of his application. He now claimed

that his family had been harassed by the Serbian police since the end

of the 1980's. This had the effect that he was excluded from the school

and his family was allegedly considered to be an enemy of the country

by the Federal Committee of Internal Security. He had never been able

to keep an employment for a longer period of time as the employers were

harassed by the police when they employed him. The applicant also

stated that the reason for the harassment was his membership, since

1984, of BDKSH. The applicant finally submitted that he feared long-

term imprisonment for his refusal to serve in the army and his

political activities in Kosovo and Sweden.  On 4 February 1994 the SIV

rejected the applicant's request for asylum. It noted that the new

facts in support of his application were submitted by the applicant

only a year after his arrival, which it found unacceptable as the

applicant had had ample opportunities to submit this new information.

The SIV, accordingly, did not find the applicant trustworthy.

      The SIV further stated that it considered the risk of persecution

of draft evaders insignificant and in any event a possible punishment

was not considered to be of such severity that it could justify asylum.

Furthermore, the applicant did not, in the SIV's opinion, run any risk

of being sent to the front and, finally, the general conditions in

Kosovo as such could not constitute a reason for granting asylum.

      The applicant appealed against this decision to the Aliens

Appeals Board (Utlänningsnämnden). In his appeal he maintained the

facts submitted to the SIV and in addition submitted a draft order of

20 August 1993 and a statement asserting that, since 8 January 1993,

he had been living with a Swedish woman.

      By decision of 31 May 1994 the Board rejected the applicant's

appeal. It found that the applicant could not be considered a refugee

within the meaning of the Aliens Act (utlänningslagen). The Board also

considered whether the alleged cohabitation with a Swedish woman could

establish a ground on which a permission to remain in Sweden could be

granted. It came to the conclusion that, when looking at the submitted

information as a whole, the applicant had not been able to render

credible that the cohabitation or attachment was of such a nature that

a permission to remain in Sweden should be granted on that ground.

      On 7 June 1994 the applicant submitted a request for pardon

(nådansökan) to the Government which by decision of 16 June 1994

refused to examine the request as the decision of the Aliens Appeals

Board was not considered to concern a matter in which the Government

could grant pardon.

      Following the introduction of his case with the Commission, the

applicant requested the SIV to stay his planned expulsion. By decision

of 20 October 1994 the SIV adjourned the expulsion proceedings pending

the outcome of the applicant's case before the Commission.

COMPLAINTS

      The applicant complains of a violation of Articles 3 and 6 of the

Convention and Article 4 of Protocol no. 4 to the Convention.

      As regards Article 3, he refers to the fact that he has refused

to join the Federal Yugoslav army and to his political activities. He

maintains that he risks up to 10 years imprisonment, torture,

harassment and that he will be forced to do military service if he is

expelled to Kosovo. Furthermore, he submits that he has now married the

Swedish woman and that they are expecting a child.

      Regarding Article 6 the applicant complains that his application

for asylum cannot be examined by the administrative courts. Finally,

regarding Article 4 of Protocol no. 4, the applicant complains that he

is being expelled to Kosovo by Sweden in execution of a policy of

expelling all asylum seekers and deserters from former Yugoslavia. He

alleges that he is subjected to a collective expulsion and that the

Swedish authorities' rejection of his application for asylum is a

standard-form decision which has been given the appearance of an

individual decision.

THE LAW

1.    The applicant complains that, if returned to Kosovo, he risks

being subjected to treatment contrary to 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 (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 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).

      Before the Commission the applicant submits that upon return to

Kosovo he risks torture, harassment, long-term imprisonment or to be

sent to the front due to his refusal to follow the draft order and due

to his political activities. To expel him would, therefore, constitute

a breach of Article 3 (Art. 3). Furthermore, he submits that he has

allegedly married a Swedish woman which also renders the expulsion

impossible.

      The Commission recalls that in order to raise an issue under the

provision invoked there should be a specific risk of treatment contrary

to Article 3 (Art. 3) of the Convention. In the present case, as

submitted by the applicant, the Commission finds no substantiation as

regards the allegations of torture and persecution or harassment of the

applicant upon his return to Kosovo. Furthermore, the Commission finds

that even assuming that the applicant would risk imprisonment for

desertion, this possible punishment is not of such a kind as to raise

an issue under Article 3 (Art. 3). The applicant has failed to submit

evidence which could lead the Commission to a different conclusion in

the present case.

      In view of the above, the Commission finds no substantiation of

the applicant's claim that he would be exposed to a real risk of being

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

on his return to Kosovo. As to the argument concerning the marriage,

the Commission considers that it does not raise an issue under Article

3 (Art. 3) of the Convention. (cf. No. 12364/86, Dec. 17.10.86, D.R.

50 p. 280; No. 11017/84, Dec. 13.3.86, D.R. 46 p. 176 and No. 21576/93,

Dec. 10.9.93; No. 22325/93, Dec. 8.9.93; No. 22508/93, Dec. 21.10.93;

No. 22509/93, Dec. 21.10.93 and No. 23521/94, Dec. 5.7.94,

unpublished).

      Moreover, the Commission recalls from its case-law mentioned

above that Chapter 8, section 1, of the Aliens Act imposes an absolute

obligation on the enforcement authorities 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 complains that his application for asylum cannot

be examined by the administrative courts. He invokes Article 6

(Art. 6) of the Convention which reads, as far as relevant, as follows:

      "1. In determination of his civil rights or of any criminal

      charge against him, everyone is entitled to a fair and

      public hearing within a reasonable time by an independent

      and impartial tribunal established by law ... ."

      However, the Commission has constantly held that the procedure

followed by public authorities to determine whether an alien should be

allowed to stay in a country, or should be expelled, does not involve

the determination of civil rights and obligations within the meaning

of Article 6 para. 1 (Art. 6-1) of the Convention (cf., for example,

no. 13162/87, Dec. 9.11.87, D.R. 54, p. 211). The Commission finds that

the applicant's application for asylum falls within this category of

procedures which do not determine civil rights within the meaning of

Article 6 (Art. 6) of the Convention. Nor did the applicant's case

involve the determination of a criminal charge.

      Accordingly, the Commission rejects this part of the application

as being incompatible ratione materiae with the provisions of the

Convention, pursuant to Article 27 para. 2 (Art. 27-2).

3.    The applicant finally complains that the Swedish authorities, by

using standard-form decisions, are expelling asylum seekers from former

Yugoslavia collectively. He invokes Article 4 of Protocol no. 4 (P4-4)

to the Convention which reads as follows:

      "Collective expulsion of aliens is prohibited."

      The Commission recalls that it has previously held that

collective expulsion must be understood as any measure compelling

aliens, as a group, to leave a country, except where such a measure is

taken on the basis of a reasonable and objective examination of the

particular case of each individual alien of the group. Moreover, the

Commission has held that in case of expulsion, the fact that a number

of aliens receive similar decisions does not lead to the conclusion

that there is a collective expulsion when each person concerned has

been able on an individual basis to put the arguments against his

expulsion to the competent authorities (cf. No. 14209/88, Dec.

16.12.88, D.R. 59 p. 274).

      The Commission notes that the SIV when deciding on the

applicant's application for asylum took into consideration the specific

facts which the applicant had submitted and made a specific decision

based on the applicant's case for rejecting the application. Upon

appeal the applicant had the possibility to present his objections to

the refusal of his request for asylum. Subsequently, the Aliens Board

reviewed the submitted personal facts and took an individual decision

involving only the applicant's situation.

      In these circumstances the Commission considers that the

applicant was given an individual decision and finds that his possible

expulsion does not reveal any appearance of a collective expulsion

within the meaning of Article 4 Protocol no. 4 (P4-4) to the

Convention.

      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 to the First Chamber       President of the First Chamber

        (M.F. BUQUICCHIO)                    (C.L. ROZAKIS)