Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 22199/93

by M.A. and family

against Finland and Sweden

The European Commission of Human Rights sitting in private on

21 October 1993, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

A. WEITZEL

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

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 4 June 1993 by

M.A. and family against Finland and Sweden and registered on 12 July

1993 under file No. 22199/93;

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 M., Z., L. I. and V. A. are husband, wife and

three minor children, born in 1960, 1959, 1988, 1989 and 1992,

respectively. They are of Kosovo-Albanian origin and citizens of the

Federal Republic of Yugoslavia. Their present whereabouts are unknown.

Before the Commission they are represented by Mr. Sami Basota, Kerava,

Finland.

The applicants entered Sweden on 3 September 1991 and immediately

requested asylum. On 10 August 1992 the National Immigration Board

(statens invandrarverk) rejected the requests, considering that the

husband's political activity as a local leader of the "Democratic

Union" had not been such as to subject him to a risk of being

persecuted or punished upon return. His party had been allowed in

Kosovo and his activities had not been of any extensive character.

Moreover, the Federal Republic of Yugoslavia was not a country at war

and no general mobilisation was taking place there.

On 18 March 1993 the Aliens' Appeals Board (utlänningsnämnden)

upheld the decision despite a draft order issued by the federal army

and submitted to the Appeals Board by the applicants. Before the

Appeals Board the applicants had further stated that police had

searched for the husband on several occasions. The Appeals Board

considered that draft evaders were running very little risk of being

prosecuted and that, in any case, the husband's possible sentence could

not be a sufficient ground for granting asylum.

The applicants entered Finland on 28 March 1993 and immediately

requested asylum or residence permits. On 23 April 1993 the requests

were rejected by the Ministry of the Interior (sisäasiainministeriö,

inrikesministeriet).

On 24 June 1993 the Ministry of the Interior ordered the

applicants to be removed from Finland to Sweden. The decision was

served on the applicants on 30 July 1993.

The applicants' removal from Finland to Sweden was carried out

on 22 September 1993.

COMPLAINTS

The applicants complain against Finland that their removal from

that country to Sweden will result in ill-treatment once they are

returned to the Federal Republic of Yugoslavia. Given that their return

from Sweden to that country is most probable in view of their previous

unsuccessful asylum requests in Sweden, the applicants regard their

removal as a de facto expulsion to the Federal Republic of Yugoslavia.

They also direct their application against Sweden.

The applicants refer to their ethnic origin as a reason for the

feared ill-treatment in the Federal Republic of Yugoslavia. The husband

further fears persecution and punishment for having evaded the draft

as well as for having been active in the "Democratic Union". He

submits that the punishment for draft evasion could be execution. The

wife alleges that she will be punished, possibly by being raped by

Serbian officials, for having left the country together with her

husband. The applicants mainly invoke Articles 2 and 3 of the

Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 4 June 1993 and registered on

12 July 1993.

On 20 August 1993 the President of the Commission decided to

apply Rule 36 of the Rules of Procedure of the Commission, having found

that it was desirable not to remove the applicants from Finland to

Sweden until the Commission had had an opportunity to examine the case

further. The President further requested the Government of Finland to

submit certain information.

On 27 August 1993 the Finnish Government submitted the

information requested.

On 8 September 1993 the Commission decided to revoke the

President's indication under Rule 36.

THE LAW

(a) The applicants primarily complain against Finland of their

removal to Sweden, alleging that the removal would constitute a de

facto expulsion to the Federal Republic of Yugoslavia, where they risk

being subjected to ill-treatment owing to their ethnic origin and the

husband's and the wife's past activities in Kosovo.

The Commission has 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 the 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., 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. In order to raise an issue under Article 3 (Art. 3) of the

Convention there should accordingly be some substantiation of the

existence of a specific risk of treatment contrary to that provision.

In the present case such particular circumstances might be that

the husband has evaded military service. The Commission does not,

however, consider it established that he would risk capital punishment

for that offence if returned to the Federal Republic of Yugoslavia. No

question therefore arises under Article 1 of Protocol No. 6 (P6-1) to

the Convention. Concerning his possible imprisonment for the offence,

the Commission does not find such a penalty so severe as to 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; No. 21576/93, Dec. 10.9.93 and No. 22325/93, Dec. 8.9.93,

unpublished).

The Commission further finds no substantiation of the husband's

allegation of possible ill-treatment on account of his past political

activities nor of the wife's allegation of possible ill-treatment upon

their return to the Federal Republic of Yugoslavia.

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 from Sweden 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

authorities.

It follows that the application in this respect must be rejected

as being manifestly ill-founded, within the meaning of Article 27 para.

2 (Art. 27-2) of the Convention.

(b) In so far as the application is directed against Sweden, the

Commission does not at this stage consider it necessary to determine

under Article 25 (Art. 25) whether the applicants can claim to be a

"victim" of a violation of the Convention by that country. It refers

to its conclusions above with regard to the application as directed

against Finland and considers that same reasoning applies equally to

the application as directed against Sweden, given the information

presently available to the Commission.

It follows that the application also in this respect 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 Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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M.A. AND FAMILY v. FINLAND AND SWEDEN

M.A. AND FAMILY v. FINLAND AND SWEDEN

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