Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23211/94

by T. A.

against Sweden

The European Commission of Human Rights (Second Chamber) sitting

in private on 5 July 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 27 August 1993 by

T.A. against Sweden and registered on 10 January 1994 under file

No. 23211/94;

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 an Ethiopian citizen, born in 1970 in Addis

Ababa, Ethiopia. Presently he is in hiding somewhere in Sweden.

The applicant grew up in Ethiopia together with his family. His

father, a civil servant in the Ministry of Defence, was allegedly

arrested in 1978 on suspicion of political activity in the Ethiopian

People's Revolution Party (EPRP). Furthermore, a brother and a sister

have allegedly been in hiding since 1981 as they apparently were also

politically active against the government.

In 1985 the applicant married and he has a daughter, born in

1988. After having accomplished his secondary education in 1986 he was

first employed in a building company and later worked for his mother

who owns a pharmacy.

The applicant submits that he and a brother were "recruited" to

the Ethiopian People's Democratic Movement (EPDM) in 1986 through some

previous colleagues of their father. The aim of EPDM was to introduce

democracy in Ethiopia and they conducted a guerilla war in the bush

against the Ethiopian army.

The applicant and his brother hereafter belonged to a group of

eight persons. Their activities consisted mainly of sending medicine

to the EPDM guerillas. It was usually their mother who provided the

medicine. Furthermore, they participated in the distribution of

leaflets from EPDM at the University of Addis Ababa. In the leaflets

EPDM criticised the lack of democracy in Ethiopia and promised to

establish a democracy. Finally, it happened that the applicant acted

as a messenger by carrying sealed envelopes from one group member to

another. The applicant paid 50 birr per month for the membership.

In 1989 the applicant's wife allegedly left him and returned to

her parents together with their daughter.

In October 1989 the leader of the applicant's group was arrested

and he allegedly disclosed the names of all the members to the police.

Therefore, the applicant and his brother went into hiding outside Addis

Ababa. The police searched for them in Addis Ababa but their mother

concealed their hiding place and she also provided them with new

passports. It appears that she had to pay a certain amount as a bribe

but otherwise the passports were officially certified and valid. On

25 December 1989 the applicant flew out of Ethiopia without any

problems. After a stopover in Athens he went to Warsaw. There he met

a person who, against the payment of 450 U.S. dollars, provided him

with a false visa for Sweden and helped him board a ferry. The

applicant arrived in Sweden on 28 December 1989 and applied for asylum

on 3 January 1990.

On 24 February 1990 he was joined by his brother who also applied

for asylum.

In their applications for asylum and their subsequent

correspondence they submitted, in addition to the above mentioned

facts, that their mother and the brother's girlfriend had been arrested

by the police in May 1990. Furthermore, they stated that it was

impossible for them to return to Ethiopia as they feared being

sentenced to death due to their membership of EPDM and the fact that

they had left the country on passports which the mother had "bought".

On 14 December 1990 the National Immigration Board (Statens

Invandrarverk, the "SIV") rejected the applicant's and his brother's

requests for asylum and their expulsion was ordered.

The SIV found that the statements of the applicant and his

brother were not trustworthy and secondly, it considered that the

evidence, as submitted, did not substantiate that the requirements for

obtaining refugee status in accordance with the Aliens Act

(utlänningslagen) were fulfilled. In that respect the SIV stated that

although it did not question that the applicant and his brother had

been politically active, their activities had not been sufficient to

draw any real attention from the Ethiopian authorities. Especially the

fact that the applicant and his brother were able to leave Ethiopia

without any particular problems, showed that they could not have had

serious political problems with the authorities before they left the

country.

The applicant appealed against the decision to the Aliens

Appeals Board (Utlänningsnämnden). The Board found that the applicant

could not be considered a refugee within the meaning of the Aliens Act

and found no other reasons upon which he ought to be granted a right

to remain in Sweden. The Board furthermore noted that the applicant had

special connections to Ethiopia as his wife and child were living

there. Accordingly, the Board rejected the appeal on 18 March 1992.

The applicant's subsequent requests to the SIV for a residence

permit on humanitarian grounds were rejected on 2 April and 4 May 1992.

The applicant then turned to the Supreme Administrative Court

(regeringsrätten) and requested that his application for asylum be

considered as the Aliens Appeals Board, in their decision of

18 March 1992, had erred in emphasising the fact that he had a wife and

a child in Ethiopia. He submitted that according to Ethiopian law a

marriage was automatically dissolved if the couple lived separately for

at least a year. Hence he was to be considered as divorced. The Supreme

Administrative Court, however, came to the conclusion that the Aliens

Appeals Board's decision was correct as the information available at

that time indicated that the applicant's marriage was in force.

Consequently, the Supreme Administrative Court rejected the request on

23 July 1992.

The applicant lodged a new application for a residence permit on

humanitarian grounds on 29 March 1993 and submitted, inter alia, a

judgment of 20 September 1992 from Ethiopia allegedly indicating that

he was divorced, that he belonged to the ethnic group Amhara, which is

being held responsible for all the calamities of the country by the

present regime in Ethiopia, that his mother had again been interrogated

by the local police about his political activities and that he now,

after the fall of the Mengistu regime in 1991, is politically active

against the transitional government. Finally, he submitted that he had

been admitted to a hospital due to attempted suicide, allegedly caused

by his fear of being expelled to Ethiopia. He was discharged from the

hospital on 19 March 1993.

The SIV found that the only new information to be examined was

the applicant's mental problems. However, these were not considered to

be of such importance that the applicant should receive a residence

permit under the Aliens Act. Accordingly, the request was rejected on

30 March 1993.

COMPLAINTS

The applicant complains of the fact that the Swedish authorities

have ordered his expulsion and maintains that he risks torture or other

harassment in Ethiopia. He also complains that the Aliens Appeals

Board's decision of 18 March 1992 is incorrect as it was based on a

misunderstanding concerning his marital status. The applicant does not

invoke any provisions in the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 27 August 1993. By letter of

26 October 1993 the applicant requested the Commission to stay his

deportation until his application had been examined. On 5 November 1993

the President of the Commission decided not to indicate to the

Government of Sweden, pursuant to Rule 36 of the Commission's Rules of

Procedure, the measure suggested by the applicant. The application was

registered on 10 January 1994.

THE LAW

1. The applicant complains that, if expelled to Ethiopia, he risks

being tortured or otherwise ill-treated. The Commission has considered

this complaint 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 (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).

In the present case, as submitted by the applicant, the

Commission finds no substantiation as regards the allegations of

torture, persecution or harassment of the applicant upon his return to

Ethiopia and his complaints in this respect thus disclose no appearance

of a violation of Article 3 (Art. 3) of the Convention. Moreover, the

Commission recalls from its previous case-law that Chapter 8, Section

1 of the 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. for

example No. 22325/93, Dec. 8.9.93, unpublished).

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

the applicant's claims 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 Ethiopia.

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. 2-2) of the Convention.

2. The applicant also complains that the decisions of the Swedish

authorities concerning his requests for asylum were not justified and,

in particular, he complains that the decision of the Aliens Appeals

Board of 18 March 1992 was incorrect.

The Commission has considered these issues under Article 6

(Art. 6) of the Convention and Article 1 of Protocol No. 7 (P7-1) to

the Convention. 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). Furthermore,

under Article 1 of Protocol No. 7 (P7-1), the Commission recalls that

the applicant entered Sweden illegally, using a false visa. In such

circumstances the Commission finds that he was not an alien lawfully

resident in the territory of Sweden within the meaning of this

provision (cf. No. 19373/92, Dec. 13.1.92, to be published in D.R. 74).

Accordingly, this part of the application must be rejected as

being incompatible ratione materiae with the provisions of the

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

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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T.A. v. SWEDEN

T.A. v. SWEDEN

LEXI