Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 24485/94

by Redzep BACOVIC

against Sweden

The European Commission of Human Rights (Second Chamber) sitting

in private on 30 November 1994, the following members being present:

MM. S. TRECHSEL, President

H. DANELIUS

G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

MM. F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

Mr. K. ROGGE, 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 7 March 1994 by

Redzep BACOVIC against Sweden and registered on 28 June 1994 under file

No. 24485/94;

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 applicant is a citizen of former Yugoslavia, born in Kosovo

in 1963. He is currently residing at Kalmar, Sweden. He owns a

restaurant at Bergkvara, Sweden. Before the Commission he is

represented by Ms. Ã…sa Adolfsson, a lawyer practising at Kalmar.

Particular circumstances of the case

Following a visit to Sweden in 1987 the applicant started a

relationship with a Swedish woman, H. In 1988 he was granted a short-

term residence permit in Sweden. He entered the country in October 1988

and started cohabiting with H.

On 16 December 1989 a daughter, S., was born to the applicant and

another Swedish woman, L., who received sole custody of the child.

On 22 November 1990 the applicant was granted a permanent

residence permit.

In January 1991 the applicant's and H.'s relationship ended.

In December 1991 a relative of the applicant, N., entered Sweden

together with her three children. In their requests for a residence

permit they referred to the applicant as their husband and father.

Having decided to expel N. and her three children, the National

Immigration Board (statens invandrarverk), on 28 January 1993, revoked

the applicant's permanent residence permit and ordered him also to be

expelled from Sweden. He was further prohibited from returning there

before 1 February 1995. The Board observed that, when requesting his

residence permits in 1988 and 1990 on account of his connection with

H., the applicant had stated that he was not married and that he had

no children. The applicant had subsequently admitted having neglected

to inform the Swedish authorities of his wife and children in former

Yugoslavia, whom he had visited every year and with whom he had been

in regular telephone contact. The applicant had further submitted that

he was "probably" the father of S. The Board also noted that the

youngest of N.'s children had been born in March 1990. Having made an

overall assessment, the Board concluded that the applicant's

relationship with H. on account of which he had been granted a

permanent residence permit had not been a serious one, at least not on

his part. Although he had a child in Sweden, his family ties in former

Yugoslavia to N. and their three children were considered stronger.

The applicant appealed, referring, inter alia, to a court

judgment of 16 November 1992 declaring him to be the father of S.

On 4 November 1993 the Aliens Appeals Board (utlänningsnämnden)

rejected the appeal and further extended the applicant's prohibition

on return until 4 November 1995.

Subsequently the applicant, referring to new circumstances,

requested that he again be granted a residence permit. He referred to

official documents issued in former Yugoslavia showing that N. had, in

1984, married his brother, who was also the father of her three

children. On 25 November 1993 the National Immigration Board rejected

the applicant's request.

Relevant domestic law

1. The Aliens Act

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

permanent residence permit may be revoked if the alien has deliberately

neglected to inform the authorities of circumstances of relevance to

the granting of his permit (Chapter 2, Section 10). In the absence of

particular reasons the revocation shall be combined with an expulsion

order (Chapter 4, Section 6). The expulsion order may furthermore be

combined with a prohibition on the alien's return issued either for a

certain period of time or indefinitely (Chapter 4, Section 14). An

alien who has been prohibited from returning to Sweden may,

nevertheless, be granted a permit to visit the country in extremely

important matters. For particular reasons, such a permit may be granted

at the request of someone else than the alien himself (Chapter 4,

Section 15).

2. The Parental Code

Under the 1949 Parental Code (föräldrabalken) the custodian of

a child shall see to it that the child receives, inter alia, a

satisfactory education (Chapter 6, Section 2).

COMPLAINTS

1. The applicant complains that his impending expulsion would

separate him from his daughter and thus violate his right to respect

for his family life as guaranteed by Article 8 of the Convention. He

emphasises that his daughter is a Swedish citizen and that he is seeing

her three to four times a week.

2. The applicant further complains that his impending expulsion

would prevent him from obtaining joint custody of his daughter together

with L. Thus, he would be denied the right to found a family as

enshrined in Article 12 of the Convention.

3. The applicant finally complains that his impending expulsion

would deny him his right as a parent to ensure that his daughter

receive education and teaching in conformity with his own religious and

philosophical convictions. He invokes Article 2 of Protocol No. 1 to

the Convention.

THE LAW

1. The applicant complains that his impending expulsion would

separate him from his daughter and thus violate his right to respect

for his family life as guaranteed by Article 8 (Art. 8) of the

Convention. This provision reads as follows:

"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 Contracting States are in

principle free to control the entry, residence and expulsion of aliens.

Expulsion of a person from a country in which close members of his

family live may, however, amount to an unjustified interference with

his right to respect for his family life as guaranteed by Article 8

(Art. 8) of the Convention (e.g. Eur. Court H.R., Moustaquim judgment

of 18 February 1991, Series A no. 193, pp. 19 et seq., paras. 43 et

seq.).

The Commission considers that the applicant's expulsion from

Sweden and the related prohibition on his return would interfere with

his right to respect for his family life due to his relationship with

his daughter residing in Sweden. It must next be examined whether this

interference would be justified under the terms of para. 2 of Article 8

(Art. 8). Under that paragraph such an interference must satisfy three

conditions: it must be "in accordance with the law", it must pursue one

or more of the aims enumerated in para. 2 and it must be "necessary in

a democratic society" for that aim or those aims. The necessity

requirement implies the existence of a pressing social need and, in

particular, requires that the measure be proportionate to the

legitimate aim pursued (the above-mentioned Moustaquim judgment, pp.

18 et seq., paras. 37 et seq.). Regard should further be had to the

margin of appreciation afforded to the Contracting States (Eur. Court

H.R., Berrehab judgment of 21 June 1988, Series A no. 138, pp. 15-16,

para. 28).

The Commission is satisfied that the expulsion order was issued

"in accordance with the law". It also considers that the enforcement

of the deportation order would pursue a legitimate aim under Article

8 para. 2 (Art. 8-2), i.e. the economic well-being of the country. As

regards the question whether the interference was "necessary in a

democratic society" in pursuit of the above-mentioned aim, the

Commission takes particular note of the nature of the applicant's

relationships with H., L. and N., as assessed by the National

Immigration Board in its decision of 28 January 1993. The Commission

further finds no indication that the expulsion order concerning the

applicant has yet been enforced and notes that the prohibition on his

return to Sweden is to expire in November 1995. Should an enforcement

take place, the applicant could apply for a short-term residence permit

enabling him to visit his daughter in Sweden even while the prohibition

on return is valid.

Taking into account the margin of appreciation left to the

Contracting States, the Commission concludes that the enforcement of

the expulsion order would be justified under Article 8 para. 2

(Art. 8-2) of the Convention in that it can reasonably be considered

"necessary in a democratic society" in pursuance of the above-stated

aim. Accordingly, the enforcement of the expulsion order would not

violate Article 8 (Art. 8).

It follows that this complaint 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 further complains that his impending expulsion

would deny him the right to found a family as enshrined in Article 12

(Art. 12) of the Convention. This provision reads as follows:

"Men and women of marriageable age have the right to marry

and to found a family, according to the national laws

governing the exercise of this right."

The Commission has found above under no. 1 that the applicant's

right to respect for his family life would not be violated on account

of his impending expulsion. No further issue concerning his right to

found a family therefore arises under Article 12 (Art. 12) (cf.

No. 8166/78, Dec. 3.10.78, D.R. 13 p. 241).

3. The applicant finally complains that his impending expulsion

would deny him his right as a parent to ensure that his daughter

receives education and teaching in conformity with his own religious

and philosophical convictions. He invokes Article 2 of Protocol No. 1

(P1-2) to the Convention which reads as follows:

"No person shall be denied the right to education. In the

exercise of any functions which it assumes in relation to

education and to teaching, the State shall respect the

right of parents to ensure such education and teaching in

conformity with their own religious and philosophical

convictions."

Leaving aside any question related to Sweden's reservation to the

provision at issue, the Commission considers this complaint to be

inadmissible for the following reason. The applicant is not the

custodian of S. and therefore has no formal power under Swedish law to

decide matters pertaining to S.'s education. Even if the provisions of

Swedish law are not taken into account, the Commission finds no

indication that the applicant's impending expulsion would violate his

rights under Article 2 of Protocol No. 1 (P1-2).

It follows that this complaint must also 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, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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BACOVIC v. SWEDEN

BACOVIC v. SWEDEN

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