AS TO THE ADMISSIBILITY OF

                      Application No. 22508/93

                      by R.B. 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

           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

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

      Mr.  M. de SALVIA, Deputy 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 23 August 1993 by

R.B. and family against Finland and Sweden and registered on 23 August

1993 under file No. 22508/93;

      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, R., I., M. and R.B., are husband and wife born

in 1964 and two minor children, born in 1988 and 1990. They are Muslims

and citizens of the Federal Republic of Yugoslavia and come from Novi

Pazar in the region of Sandzak, Serbia, which has about 300,000

Muslims. Presently they are staying in Finland, where they are

represented before the Commission by Mrs. Kristina Stenman, a lawyer

of the Refugee Advice Centre at Vaasa.

Particular circumstances of the case

      The husband left the Federal Republic of Yugoslavia on 11 March

1992 allegedly after he had been called up to serve in the federal army

and searched for by the police. Allegedly he was later called up a

second time to report for "military exercises" on 15 July 1992.

      The husband entered Sweden on 17 March 1992 and immediately

requested asylum. The rest of the family arrived on 14 May 1992 and

requested asylum on 18 May 1992.

      The requests were refused by the National Immigration Board

(statens invandrarverk) on 14 August 1992 and by the Aliens Appeals

Board (utlänningsnämnden) on 28 May 1993.

      The Immigration Board considered that, as far as it was informed,

the Serbian authorities do not take measures against Yugoslav citizens

who return to the Federal Republic of Yugoslavia after having evaded

the draft for whatever reason. The tension between the ethnic groups

in that country was not considered sufficient for the granting of

asylum or a residence permit on humanitarian grounds.

      The Aliens Appeals Board largely upheld this reasoning and

further considered that religious tension was not sufficient to warrant

the granting of a residence permit on humanitarian grounds. The Board

noted that the husband had been drafted both during and after the so-

called mobilisation phase. Nevertheless, he did not run a risk of ill-

treatment upon return. The Board further considered that the Federal

Yugoslav Army was not involved in any war.

      On 26 June 1993 the applicants arrived in Finland, where they

again applied for asylum. This request was rejected by the Ministry of

the Interior (sisäasiainministeriö, inrikesministeriet) on 12 August

1993, stating:

      (translation from Finnish)

      "The applicants have entered Finland from another Nordic State.

      They have invoked no such grounds for the granting of residence

      permits as stated in section 20 of the Aliens Act. [Nor have

      they] invoked any particular grounds as required under section

      32, subsection 3 ... showing that the country from which they

      arrived is not safe for them.

      The Ministry ... considers that the applicants may be returned

      to Sweden without running any risk of there being subjected to

      inhuman treatment or persecution referred to in section 30 ...,

      or of being expelled from there to any such area."

      The applicants were notified of the decision on 23 August 1993,

      following which they were to be immediately removed to Sweden.

      The applicants appealed to the Supreme Administrative Court

(korkein hallinto-oikeus, högsta förvaltningsdomstolen), where the case

is still pending.

Relevant domestic law

      Chapter 1, section 1, subsection 1, of the 1991 Finnish Aliens

Act (ulkomaalaislaki 378/91, utlänningslag 378/91) provides that this

Act, any provisions of a lower rank and international treaties by which

Finland is bound shall be applied to aliens' entry into and departure

from Finland. The preparatory works to the Act underline the binding

character of applicable human rights treaties and prescribes that these

shall be duly considered in the application of domestic law (Bill No.

47/90, p. 7).

      An alien may be granted asylum if, owing to a well-founded fear

of persecution for reasons of his race, religion, nationality,

membership of a particular social group or political opinion, he has

left his country of origin or permanent residence and if, due to such

fear, he does not wish to avail himself of the protection of that

country (chapter 5, section 30, subsection 1).

      An alien may be refused asylum if he has previously stayed in a

country which has acceded to the Convention Relating to the Status of

Refugees, or if he has stayed in another safe country where he has

applied, or has had an opportunity to apply, for asylum (subsection 2,

para. 3).

      Asylum may also be refused if, according to the 1958 Treaty

between Denmark, Finland, Iceland, Norway and Sweden Concerning the

Waiver of Passport Control at the Intra-Nordic Frontiers (sopimus

passintarkastuksen poistamisesta pohjoismaisilla rajoilla, överens-

kommelsen om upphävande av passkontrollen vid de internordiska

gränserna), another signatory to the Convention is obliged to readmit

the alien (subsection 2, para. 4).

      An alien who has not been granted asylum, but is nevertheless

deemed unable to return safely to his country of origin or habitual

residence, may be issued a residence permit in Finland in view of his

need for protection (section 31, as amended by Act no. 639/93).

      An alien who has entered Finland without a residence permit may

be granted a fixed-term residence permit if he is in need of protection

or if there are strong humanitarian or other particular reasons for

issuing such a permit (chapter 3, section 20, subsection 1, para. 3).

      An asylum request may be immediately rejected if the asylum

seeker has entered Finland from another Nordic country, or from a

country to which he may be returned having regard to chapter 6, section

38, subsection 2, provided no grounds exist for issuing him with a

residence permit under chapter 3, section 20, and provided that he

cannot show any specific grounds for considering the country in

question unsafe for him (chapter 5, section 32, subsection 3, as added

by Act no. 639/93).

      Asylum requests are decided by the Ministry of the Interior. The

Aliens' Ombudsman shall be given an opportunity to be heard, unless

this would be clearly unnecessary (section 33).

      If the Ministry in its decision concludes that an asylum request

is manifestly unfounded, it must request an opinion from the Chairman

or Deputy Chairman of the Asylum Appeals Board (turvapaikkalautakunta,

asylnämnden). If this opinion also concludes that the request is

manifestly unfounded, there is no appeal against the Ministry's

decision (section 34, as amended by Act no. 639/93).

      No one may be returned to an area where he may be subjected to

inhuman treatment or such persecution as referred to in section 30, or

to an area from which he could be sent on to another such area

(chapter 6, section 38, subsection 2, as amended by Act no. 639/93).

      An alien who considers that a refusal of entry has infringed his

rights may appeal to the Supreme Administrative Court (chapter 8,

section 58, as amended by Act no. 639/93). A refusal of entry may,

however, be enforced regardless of an appeal (section 62, as amended

by Act no. 639/93).

      Under Article 10 of the 1958 Treaty a Contracting State

undertakes to readmit an alien to its territory from that of another

Contracting State if the alien has entered the latter directly from the

former without a valid passport or a special permit.

COMPLAINTS

1.    The applicants complain against Finland that, if they are

returned to the Federal Republic of Yugoslavia, they risk ill-treatment

in view of the first applicant's evasion from service in the federal

Yugoslav army and their Muslim origin. They refer to a letter of August

1992 from a lawyer in their home town according to which charges have

been brought against the first applicant for draft evasion. They

further allege harassment because of their Muslim origin and submit

that the situation of Muslims in the region of Sandzak is particularly

difficult. The husband allegedly had to stop working because of

harassment at his workplace. The applicants refer to a statement by the

Embassy in Sweden of the Republic of Bosnia and Herzegovina according

to which Bosnians from Sandzak can be granted Bosnian citizenship on

request.

      As the applicants will be removed to Sweden, where their asylum

request was already rejected, the Finnish removal order constitutes a

de facto expulsion of the applicants to the Federal Republic of

Yugoslavia. The applicants invoke Article 3 of the Convention.

2.    In their submissions of 7 October 1993 the applicants also

complain against Finland of the lack of an effective remedy against the

removal order, as their appeal to the Supreme Administrative Court has

no suspensive effect. There is also no appeal against the refusal of

entry. They invoke Article 13 of the Convention.

3.    In their submissions of 7 October 1993 the applicants also direct

their complaint under Article 3 of the Convention against Sweden.

PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced and registered on 23 August 1993.

On the same day the Acting President of the Commission decided to bring

the complaint under Article 3 of the Convention to the notice of the

Finnish Government and to invite them to submit written observations

on its admissibility and merits. He further decided, pursuant to

Rule 36 of the Commission's Rules of Procedure, to indicate to the

Finnish Government that it was desirable in the interests of the

parties and the proper conduct of the proceedings not to remove the

applicants to Sweden until the Commission had had an opportunity to

examine the application.

      On 8 September 1993 the Commission prolonged the indication under

Rule 36 until 22 October 1993.

      The Government's observations were submitted on 17 September 1993

and the applicants' observations in reply on 7 October 1993.

THE LAW

1.    The applicants complain that their removal to Sweden will

constitute a de facto expulsion to the Federal Republic of Yugoslavia

in view of their previous unsuccessful asylum requests in Sweden. They

submit that, if returned to the Federal Republic of Yugoslavia, they

risk ill-treatment in view of the first applicant's evasion from

military service and their Muslim origin. They invoke Article 3

(Art. 3) of the Convention, which reads:

      "No one shall be subjected to torture or to inhuman or degrading

      treatment or punishment."

      The Finnish Government recognise that the applicants' pending

appeal to the Supreme Administrative Court is not a remedy with

suspensive effect.  They submit, however, that the refusal of entry was

made in accordance with the Aliens Act and was in no way arbitrary. It

was based on the fact that the applicants had arrived in Finland from

Sweden, where they had already requested asylum. The husband's draft

evasion as such, and even the imposition of a criminal sanction for

that offence, do not constitute sufficient reasons for granting the

applicants asylum. A mere possibility of ill-treatment in the

circumstances presently prevailing in the Federal Republic of

Yugoslavia is not in itself sufficient to give rise to a violation of

Article 3 (Art. 3). As Sweden has agreed to readmit the applicants and

the applicants will, from there, not be returned to an area where they

would risk treatment contrary to Article 3 (Art. 3), their removal can

be carried out. The Government cannot be held responsible for measures

affecting the applicants at a later stage in Sweden.

      Finally it is contended that, even if Finland could be held

responsible for the applicants' final return to the Federal Republic

of Yugoslavia, the Government have no reason to doubt the lawfulness

and appropriateness of the Swedish decisions refusing the applicants

asylum. No substantial grounds have been shown for believing that the

applicants would thereby risk being exposed to treatment contrary to

Article 3 (Art. 3). Should, subsequently, obstacles arise to the

applicants' return, they have the possibility to lodge a new asylum

request in Sweden.

      The applicants contend that there is a real risk that they would

be subjected to treatment contrary to Article 3 (Art. 3) if returned

to the Federal Republic of Yugoslavia via Sweden, having regard both

to the general situation in the region of Sandzak, Serbia, from where

they come and their individual circumstances. They consider themselves

ethnic Bosnians. Following the dissolution of the  Socialist Federal

Republic of Yugoslavia the family was subjected to humiliating

treatment entailing, inter alia, the use of a derisive nickname. The

first applicant evaded military service because he would surely have

had to serve in the federal Yugoslav army in the war against Croatia

and later Bosnia-Herzegovina, that is against his own people. In order

to evade the call-up the husband went into hiding. When Serbian

officials visited the applicants' home searching for him they treated

the other family members in a threatening and brutal manner.

      The applicants further submit that the refusal of entry into

Finland was based exclusively on the fact that the applicants had

entered the country from Sweden. Under chapter 6, section 38,

subsection 2, of the 1991 Aliens Act, however, the Finnish authorities

must also examine the substance of an asylum request before refusing

entry and issuing a removal order, so as to comply with the principle

of non-refoulement transformed into Finnish law. Given that the

applicants' asylum requests in Sweden have already been rejected, their

immediate expulsion to the Federal Republic of Yugoslavia is beyond all

reasonable doubt. The decision to remove the applicants to Sweden

contains no conditions regarding their possible expulsion from that

country.

      The applicants underline that the Vilvarajah judgment of the

European Court of Human Rights (Eur. Court H.R., Vilvarajah and Others

judgment of 30 October 1991, Series A no. 215) was based on a general

improvement of the situation in the receiving country. It cannot

therefore be derived from this case-law that the general situation in

a receiving country could never be such as to constitute a real risk

of treatment contrary to Article 3 (Art. 3). The present situation in

Sandzak is most precarious. The region of Sandzak forms part of Serbia

and about 300.000 Muslims live there. Bosnia-Herzegovina considers the

Muslims to be Bosnians and is prepared to grant citizenship to them.

Partly for this reason, there have been gross human rights violations

by the Serbs in Sandzak.

      The applicants submit that in 1992 criminal proceedings were

being conducted against 2000 ethnic Muslims in Sandzak who had evaded

military service in the federal Yugoslav army. The United Nations High

Commissioner for Refugees has called for careful examination of asylum

requests by draft evaders. No information is available regarding the

outcome of the criminal proceedings instituted against the husband. No

amnesty appears, however, to have been accepted for those who have

evaded military service. Having regard to the ongoing "Serbification"

of Serbia and Montenegro, it cannot be excluded that such Muslims would

be subjected to severe punishments and prison conditions. Should the

husband be imprisoned on the applicants' return, this would render the

situation of the other family members extremely vulnerable.

      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 (the above-mentioned Vilvarajah and Others judgment, 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 Sandzak. The Commission finds that the general situation

in Sandzak 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 allegations

of possible ill-treatment of other family members 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 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 this part of the application must be rejected as

being manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

2.    In their submissions of 7 October 1993 the applicants also

complain of the lack of an effective remedy against the removal order,

as their appeal to the Supreme Administrative Court has no suspensive

effect. There is also no appeal against the refusal of entry. They

invoke Article 13 (Art. 13) of the Convention, which reads:

      "Everyone whose rights and freedoms as set forth in this

      Convention are violated shall have an effective remedy before a

      national authority notwithstanding that the violation has been

      committed by persons acting in an official capacity."

      In view of its above conclusion with regard to the complaint

under Article 3 (Art. 3) of the Convention, the Commission considers

that the applicants have no "arguable claim" of a breach of this

provision which warrants a remedy under Article 13 (Art. 13) (cf. Eur.

Court H.R., Boyle and Rice judgment of 27 April 1988, Series A no. 131,

pp. 23-24, paras. 52-54).

      It follows that this part of the application must also be

rejected as being manifestly ill-founded within the meaning of Article

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

3.    In their submissions of 7 October 1993 the applicants also direct

their complaint under Article 3 (Art. 3) of the Convention against

Sweden, relying on the same arguments.  The Commission does not

consider it necessary to determine under Article 25 (Art. 25) whether

the applicants may at this stage claim to be a "victim" of a violation

of the Convention by Sweden. In view of its conclusions above with

regard to the complaint under Article 3 (Art. 3) directed against

Finland, the Commission considers that the same reasoning applies

equally to the complaint against Sweden, given the information

presently available to the Commission.

      It follows that this part of the application 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. NORGAARD)