Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 22198/93

by Enver LLULLAKU and Family

against Finland

The European Commission of Human Rights (First Chamber) sitting

in private on 1 December 1993, the following members being present:

MM. A. WEITZEL, President

C.L. ROZAKIS

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

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 13 May 1993 by

Enver LLULLAKU and family against Finland and registered on 12 July

1993 under file No. 22198/93;

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 applicants, E., S., V., V., A. and S. L., are husband, wife

and four minor children born in 1963, 1966, 1986, 1987, 1990 and 1993,

respectively. They are Kosovo-Albanian Muslims and apparently all

citizens of the Federal Republic of Yugoslavia. They are presently

staying at a refugee centre at Vaasa, Finland. Before the Commission

they are represented by Mr. Sami Basota, Kerava, Finland.

The applicants arrived in Finland from Norway on

15 September 1990, having been refused asylum in Norway, where they had

arrived in September 1987. In Norway a further family member was born

and in Finland yet another one. The applicants' two asylum requests

in Finland were rejected on 10 January and 19 March 1991.

On 29 March 1991 the applicants went to Sweden, where their

asylum requests were also refused, most recently on 18 December 1991.

On 20 December 1992 the applicants re-entered Finland. A further

asylum requests were refused by the Ministry of the Interior

(sisäasiainministeriö, inrikesministeriet) on 24 March 1993. The

applicants were further ordered to be removed to Sweden. The decision

was served on the applicants on the same day and their removal was to

take place by ferry to Sweden on the next day. However, in order to

avoid their removal to Sweden the applicants on 25 March 1993 left by

car for Norway, where the youngest child was born on 27 March 1993.

The brother of the husband joined them on this trip. He was expelled

from Norway to the Federal Republic of Yugoslavia soon after their

arrival in Norway.

The applicants re-entered Finland on 3 May 1993 and again lodged

new asylum requests. These are apparently still pending.

COMPLAINTS

1. The applicants complain that, owing to their ethnic origin, they

will suffer ill-treatment by Serbian officials, if returned to Kosovo

in the Federal Republic of Yugoslavia. Although their return is likely

to be enforced by Swedish or Norwegian authorities, they consider their

removal from Finland as a de facto expulsion, having regard to their

previous unsuccessful asylum requests in the other Nordic countries.

The husband refers, in particular, to his political activities

in the "Marxist-Leninist Union" in Pristina. He would distribute

leaflets and paint slogans in public places calling for independence

for Kosovo. These activities could render him six years' imprisonment.

Due to these activities he was arrested twice, in 1981 and 1982, and

because of his participation in a demonstration in 1981 he was banned

from the public school. When serving in the federal army in 1984-85

he was arrested and assaulted. The final reason for leaving Kosovo in

1987 was that he had been warned by a relative that he was sought for

by the police.

Moreover, upon his expulsion from Norway, the brother of the

husband was robbed by Macedonian police officers and handed over to

Serbian police officers, who assaulted him during six hours.2. The

applicants also complain that they were forced to leave Finland by

travelling 1,300 kilometres in a car in March 1993 despite medical

opinions indicating that the wife was in a state of final pregnancy.

The applicants invoke mainly Articles 2 and 3 of the Convention

in respect of both complaints.

THE LAW

1. The applicants complain that they will suffer ill-treatment, if

returned to Kosovo in the Federal Republic of Yugoslavia, owing to

their ethnic origin and the first applicant's past political activities

there. They consider their imminent removal from Finland as a de facto

expulsion to the Federal Republic of Yugoslavia, having regard to their

previous unsuccessful asylum requests in Norway and Sweden.

The Commission has examined the 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 the Contracting States have the

right, as a matter of well-established international law and subject

to their treaty obligations including Article 3 (Art. 3), 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., para. 103). A

mere possibility of ill-treatment is not in itself sufficient (ibid.,

p. 37, para. 111).

The examination of the present case involves, on the one hand,

the applicants' personal situation and, on the other, the general

situation in Kosovo. The Commission finds that the general situation

in Kosovo at present is not such that an expulsion to that region would

as such amount to a violation of the Convention or any of its Protocols

(e.g. No. 22199/93, Dec. 21.10.93, not published). In order to raise

an issue under Article 3 (Art. 3) of the Convention the existence of

a specific risk of treatment contrary to that provision should

therefore be substantiated in relation to the individual concerned.

As far as the first applicant's alleged political activities are

concerned the Commission observes that the applicants left Kosovo

already in 1987. Consequently, the relevance of those activities for

the first applicant's present risk of treatment contrary to Article 3

(Art. 3) if returned to the Federal Republic of Yugoslavia is

necessarily reduced. The first applicant has, thus, failed to

substantiate his allegation that he is presently being wanted by

authorities in Kosovo.

Moreover, the alleged ill-treatment of the first applicant's

brother cannot suffice to establish that the first applicant himself

or any of the other applicants would be in a particular situation of

risk.

The Commission concludes, on the evidence before it concerning

the applicants' background and the general situation in the Federal

Republic of Yugoslavia, that it has not been established that there are

substantial grounds for believing that the applicants would there 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. This

being the Commission's conclusion, it is not necessary to determine the

possible responsibility of Finland for the returning of the applicants

to their country of origin by actions of Swedish or Norwegian

authorities (cf. the above-mentioned No. 22199/93).

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 applicants also complain of having been "forced" to leave

Finland under unacceptable circumstances due to the wife's late stage

of pregnancy.

The Commission notes that the applicants had been informed by the

police that their removal from Finland was to take place by ferry on

the day after they had been served the removal order. The wife's

suffering as caused by the applicants' lengthy journey to Norway by car

was, however, an effect of their own decision to attempt to avoid

execution of the removal order.

In these circumstances the Commission sees no issue under

Article 3 (Art. 3) of the Convention or any other provision of the

Convention or its Protocols.

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 First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (A. WEITZEL)

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LLULLAKU AND FAMILY v. FINLAND

LLULLAKU AND FAMILY v. FINLAND

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