Lexploria

SUR LA RECEVABILITÉ

Application No. 23761/94

by Yusuf, Sabriye and Edibe KÜLEN

against Sweden

The European Commission of Human Rights sitting in private

on 14 April 1994, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

A. WEITZEL

F. ERMACORA

A.S. GÖZÜBÜYÜK

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 21 March 1994

by Yusuf, Sabriye and Edibe KÃœLEN against Sweden and registered

on 28 March 1994 under file No. 23761/94;

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 first and the second applicant are husband and wife and

the third one is their daughter. They were born in 1930, 1934 and

1977, respectively and are all Turkish citizens. They are

currently residing in Stockholm. Before the Commission they are

represented by Mr. Leif Rydberg, a lawyer at Bergshamra.

The facts of the case, as submitted by the applicants, may

be summarised as follows.

The applicants are Assyrian Christians from Idil in the

province of Sirnak in the southeast of Turkey. Two of the first

and the second applicant's sons are lawfully resident in Sweden.

One of them received Swedish citizenship in 1993. Two further

sons are resident in Switzerland. The first applicant also has

three siblings who appear to be resident in Sweden.

The first applicant suffers from heart problems and

diabetes.

In 1986 and 1990 the applicants requested a residence permit

in Sweden in order to join the first applicant's mother there.

This was refused.

On 6 November 1991 the applicants were granted a short-term

visa for entering Sweden in order to attend the funeral of the

first applicant's mother.

On 2 December 1991 the applicants requested asylum,

alternatively a residence permit in Sweden. The first applicant

alleged that in 1986 he had, under a threat of being killed, been

forced to assist members of the Kurdish Workers' Party ("the

PKK") in transporting weapons. In May 1989 he had been arrested

together with some five other inhabitants of Idil. He claimed to

have been tortured by the military in Diyarbakir, suspected of

having assisted the PKK in smuggling weapons. He had allegedly

been beaten with a truncheon and wooden sticks as a result of

which one of his toes had been broken. He had been released after

fifteen days.

In the asylum investigation the first applicant further

stated that as from the autumn of 1989 up to the summer of 1991

he had been arrested on three further occasions, each time for

a few days. During the first of these arrests he had allegedly

been assaulted and during the second one again tortured. In

connection with his release after the third arrest he had been

informed by the military in Mardin that it had no evidence

against him and that the military in Diyarbakir had also been

informed accordingly. Subsequently the first applicant had

refused to assist the PKK, who had then allegedly extorted money

from him on five occasions under the threat of otherwise killing

him unless he would comply with their demands. Following his

refusal to comply with a sixth request for money he had received

a death threat by mail. He had turned to the police, but in vain.

The applicants had then decided to leave Idil.

On 29 October 1992 the National Immigration Board (statens

invandrarverk) rejected the applicants' request. The Board mainly

noted the indication by the military that it had no evidence

against the first applicant and that this information had also

been conveyed to the military in Diyarbakir. The Board therefore

found no reason to believe that the first applicant would be

persecuted by the authorities if returned to Turkey. The

harassment to which he had been subjected by members of the PKK

was not such as to warrant the granting of asylum to the

applicants. Finally, their family ties with Sweden in the form

of the first and second applicant's two sons were not considered

so strong as to warrant the granting of residence permits.

On 5 February 1993 the Aliens Appeals Board

(utlänningsnämnden) upheld the decision of the National

Immigration Board.

In a further request for a residence permit lodged in 1993

the applicants also referred to their Christian belief. They also

stated that their property in Idil had been taken by the Kurds.

This request was rejected by the National Immigration Board

on 8 June 1993. The Board found that the general situation of

Christians in Turkey did not warrant the granting of asylum to

the applicants. Neither was the alleged deprivation of their

possessions considered as persecution supported by the Turkish

Government.

A further request by the applicants for a residence permit

was rejected by the National Immigration Board on 14 September

1993. In October 1993 the applicants requested the Supreme

Administrative Court (Regeringsrätten) to re-open the proceedings

before the Aliens Appeals Board, referring to the fact that

certain documents submitted by them in the asylum proceedings had

not been translated. This request was apparently rejected.

In December 1993 the applicants lodged a yet further request

for a residence permit, referring, inter alia, to an incident in

November 1993 when Turkish military forces burned down a village

near Idil inhabited largely by Christians. They also referred to

their allegedly difficult mental state.

This request was rejected by the National Immigration Board

on 19 January 1994, considering that no new circumstances had

been shown in the case.

COMPLAINTS

The applicants complain that their impending expulsion to

Turkey would violate Articles 2, 3, 5, 8, 9, 10 and 14 of the

Convention. They fear further persecution in that country on

account of their Christian belief and assert that persecution of

Christians is wide-spread there, as Turkey is a Muslim-dominated

country. The applicants refer, in particular, to the death threat

by the PKK directed against the first applicant and to the

alleged deprivation by the PKK of their belongings in Turkey.

The applicants finally refer to the fact that two of the

first and second applicant's sons are lawfully resident in

Sweden.

THE LAW

The applicants complain about their impending expulsion to

Turkey. They fear further persecution there on account of their

Christian belief. They also refer to the fact that two of the

first and the second applicant's sons are lawfully resident in

Sweden. They invoke Articles 2, 3, 5, 8, 9, 10 and 14 (Art. 2,

3, 5, 8, 9, 10, 14) of the Convention.

(a) The Commission has first examined 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 (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 that

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 to give rise to a

breach of Article 3 (Art. 3) (ibid., p. 37, para. 111).

The Commission concludes, on the evidence before it

concerning both the applicants' individual background and the

general situation in Turkey, that it has not been established

that there are substantial grounds for believing that they would

be exposed to a real risk of being subjected to treatment

contrary to Article 3 (Art. 3) of the Convention, if expelled to

that country. In reaching this conclusion, the Commission also

notes that the State which is to receive the applicants is a

member of the Council of Europe and has accepted the right of

individual petition in accordance with Article 25 (Art. 25) of

the Convention.

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.

(b) The Commission has next considered the application as far

as the applicants' family ties to Sweden have been invoked. It

has examined this complaint under Article 8 (Art. 8) of the

Convention, which reads:

"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 considers that the refusal to grant the

applicants a residence permit in Sweden raises the question

whether there has been a lack of respect for their family life.

It recalls that the notion of "respect" enshrined in Article 8

(Art. 8) of the Convention is not clear-cut. This is the case

especially where the positive obligations implicit in that

concept are concerned. Its requirements will vary considerably

from case to case according to the practices followed and the

situations obtaining in the Contracting States. In determining

whether or not such an obligation exists, regard must be had to

the fair balance that has to be struck between the general

interest and the interests of the individual, as well as to the

margin of appreciation afforded to the Contracting States (Eur.

Court H.R., B. v. France judgment of 25 March 1992, Series A no.

232-C, pp. 47 et seq., paras. 44 et seq.).

The Commission further recalls that in the field of

immigration "Contracting States enjoy a wide margin of

appreciation in determining the steps to be taken to ensure

compliance with the Convention with due regard to the needs and

resources of the community and of individuals". A State's

obligation to admit to its territory foreign relatives of its

citizens will vary according to the particular circumstances of

the persons involved. Moreover, "as a matter of well-established

international law and subject to its treaty obligations, a State

has the right to control the entry of non-nationals to its

territory" (Eur. Court H.R., Abdulaziz, Cabales and Balkandali

judgment of 28 May 1985, Series A no. 94, pp. 33-34, para. 67).

The Commission finally recalls that the existence or not of

family life falling within the scope of Article 8 (Art. 8) will

depend on a number of factors and on the circumstances of each

particular case (e.g. No. 12402/86, Dec. 9.3.88, D.R. 55 p. 224).

Turning to the present case, the Commission considers that

it has not been established that those of the first and the

second applicant's sons who are resident in Sweden would in any

way be dependent on them or that the applicants would be

dependent on their sons. Thus, the applicants' relationship with

them cannot be regarded as "family life" within the meaning of

Article 8 (Art. 8).

In the above circumstances, the duties imposed by Article

8(Art. 8) of the Convention cannot be considered as extending to

an obligation on the part of Sweden to grant the applicants a

residence permit (cf., mutatis mutandis, the above-mentioned

Abdulaziz, Cabales and Balkandali judgment, p. 34, para. 68). The

Commission concludes, therefore, that there has been no lack of

respect for their family life.

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.

(c) Finally, the Commission finds no appearance of any violation

of Articles 2, 5, 9, 10 or 14 (Art. 2, 5, 9, 10, 14) of the

Convention.

It follows that the complaints relating to these Articles

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, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the

Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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KÜLEN v. SWEDEN

KÜLEN v. SWEDEN

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