Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 22325/93

by T. M., M. M.,

V. M. and N. M.

against Sweden

The European Commission of Human Rights sitting in private on

8 September 1993, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

A. WEITZEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

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

G.B. REFFI

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

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 22 July 1993 by

T. M., M. M., V. M. and N. M. against Sweden and registered on 26 July

1993 under file No. 22325/93;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having regard to the observations submitted by the respondent

Government on 19 August 1993 and the observations in reply submitted

by the applicants on 3 September 1993;

Having deliberated;

Decides as follows:

THE FACTS

The applicants are husband and wife and their two children. They

are citizens of the Federal Republic of Yugoslavia. The husband and

wife were born in 1952 and the children in 1979 and 1983, respectively.

Before the Commission they are represented by Mr. Kjell Andersson, a

lawyer in Helsingborg, Sweden.

The facts of the case, as submitted by the parties, may be

summarised as follows.

Particular circumstances of the case

The first applicant is a Sergeant-Major in the reserve troops of

the former Yugoslav army. He performed his active service from February

1976 to February 1977. From 1982 to 1985 he participated in annual

reserve manoeuvres. His father, of Croatian origin, was a Colonel in

the Federal Yugoslav army; his mother was of Serbian origin.

From 31 August to 1 September 1991 the first applicant

participated in a reserve manoeuvre and was told to be ready for the

mobilisation of the army. On 19 September 1991 he left for Sweden,

where he arrived on 22 September. In October 1991 his wife was handed

a call-up order addressed to him. Subsequently the family was visited

on several occasions by military police searching for him. Following

the wife's dismissal from her work place, she too left for Sweden

together with the children. They arrived in Sweden on 19 December 1991.

On 8 January 1992 the family applied for asylum in Sweden. The

first applicant stated that he feared having to fight against Croatian

troops, thereby committing war crimes. Moreover, the second applicant

had been forced to leave her work place and she and the children had

been harassed. On 16 February 1993 the National Immigration Board

(statens invandrarverk) rejected the requests and ordered the

applicants to be expelled to the Federal Republic of Yugoslavia. On the

applicants' appeal, the Aliens' Appeals Board (utlänningsnämnden)

upheld the decision on 15 June 1993. On 16 July 1993 the Supreme

Administrative Court (regeringsrätten) rejected the applicants' request

for a re-opening of the case.

On 27 and 28 July 1993 the National Immigration Board rejected

two further requests for permission to stay in Sweden in the absence

of any new facts calling for a different assessment. In a further

decision of 28 July 1993, however, the National Immigration Board

decided to stay the enforcement of the expulsion order in the light of

the indication issued by the Acting President of the Commission (see

below "Proceedings before the Commission").

Relevant domestic law

Under Chapter 2, Section 5, subsection 3, of the 1989 Aliens Act

(utlänningslag 1989:529) a request for a residence permit lodged by an

alien, who is to be refused entry or expelled by a decision which has

acquired legal force, may only be granted provided the request is based

on new circumstances and the applicant is either entitled to asylum or

there are weighty humanitarian reasons for allowing him to stay in

Sweden.

Under Chapter 3, Section 1, an alien may be granted asylum

because he is a refugee or, without being a refugee, if he wishes not

to return to his home country because of the political situation there

and provided he can put forward weighty reasons in support of his wish.

The term "refugee" refers to an alien who is staying outside the

country of which he is a citizen because he feels a well-founded fear

of being persecuted in that country, having regard to his race,

nationality, membership of a special group in society or his religious

or political convictions, and who cannot or does not wish to avail

himself of his home country's protection (Chapter 3, Section 2).

An alien, as referred to in Chapter 3, Section 1, is entitled to

asylum. Asylum may, however, be refused inter alia if, in the case of

an alien falling under Chapter 3, Section 1, para. 3, there are special

grounds for not granting asylum (Chapter 3, Section 4). An alien may

be refused entry into Sweden if he lacks a visa, residence permit or

other permit required for entry, residence or employment in Sweden

(Chapter 4, Section 1, para. 2). When considering whether to refuse an

alien entry or to expel him, it must be examined whether he, pursuant

to Chapter 8, Sections 1-4, can be returned to a particular country

or whether there are other special obstacles to the enforcement of such

a decision (Chapter 4, Section 12). A refusal of entry issued by the

National Board of Immigration may be combined with a prohibition on

return for a specific period of time (Chapter 4, Section 14). In

refusing entry the Government may also issue a prohibition on return

for a specific period of time (Chapter 7, Section 5, subsection 2).

Under Chapter 7, Section 10, the National Board of Immigration

may review its decision if new circumstances have emerged or for any

other reason, provided it would not affect the alien negatively or be

irrelevant to him. A review may take place even if an appeal has been

lodged against the Board's decision. Once the Board has handed over the

file to the Government it may only review its decision if its opinion

is requested by the Government. The National Board of Immigration may,

for special reasons, refer a request for asylum to the Government

together with its opinion in the matter (Chapter 7, Section 11).

An alien who has been refused entry or who is to be expelled may

never be conveyed to a country where there is firm reason to believe

that he would be in danger of being subjected to capital or corporal

punishment or torture, or to a country where he is not protected from

being sent to a country where he would be in such danger (Chapter 8,

Section 1).

When a refusal of entry or an expulsion order is put into effect,

the alien may not be sent to a country where he would risk being

persecuted, or to a country where he would not be protected from being

sent on to a country where he would risk being persecuted (Chapter 8,

Section 2, subsection 1). An alien may, however, be sent to such a

country if he cannot be sent to any other and if he has shown, by

committing a particular offence, that public order and safety would be

seriously endangered by his being allowed to remain in Sweden. However,

this does not apply if the threatened persecution in the receiving

state implies danger to his life or is otherwise of a particularly

grave nature. Similarly, the alien may be sent to a country referred

to in subsection 1 if he has engaged in activities endangering the

national security of Sweden and if there is reason to suppose that he

would continue to engage in such activities in Sweden and he cannot be

sent to any other country (subsection 2).

If the enforcement is not subject to any obstacles under, inter

alia, Chapter 8, Sections 1 and 2, an alien who has been refused entry

or who is to be expelled is to be sent to his country of origin or, if

possible, to the country from which he came to Sweden. If the decision

cannot be put into effect in the manner indicated in subsection 1, or

there are other special grounds for doing so, the alien may be sent to

some other country instead (Chapter 8, Section 5).

When considering a request for a residence permit lodged by an

alien to be expelled according to a decision which has acquired legal

force, the National Board of Immigration (and in certain cases the

Government too) may stay execution of that decision. For particular

reasons, the Board may also otherwise stay execution (Chapter 8,

Section 10).

If the enforcing authority finds that enforcement cannot be

carried out or that further information is needed, the authority is to

notify the National Board of Immigration accordingly. In such a case,

the Board may decide on the question of enforcement or take such other

measures as are necessary (Chapter 8, Section 13).

COMPLAINTS

The applicants complain that, if they are returned to the Federal

Republic of Yugoslavia, the first applicant risks being sentenced to

death for desertion. They refer, in particular, to the first

applicant's status as an officer and to the high-ranking military

position held by his father. They further refer to Section 226 of the

Penal Code of that country, according to which the sentence for

desertion during a state of war, or immediately prior to such a state,

is between five years' imprisonment and capital punishment. They invoke

Article 3 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 22 July 1993 and registered on

26 July 1993. On 26 July 1993 the Acting President of the Commission

decided to bring the application to the notice of the respondent

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, that it was desirable in the

interests of the parties and the proper conduct of the proceedings not

to return the applicants to the Federal Republic of Yugoslavia until

the Commission had had an opportunity to examine the application.

The Government's observations were submitted on 19 August 1993,

to which the applicants replied on 3 September 1993.

On 8 September 1993 the applicants were granted legal aid.

THE LAW

The applicants complain that, if they are returned to the Federal

Republic of Yugoslavia, the first applicant risks being sentenced to

death for desertion. They invoke 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 Government submit that the first applicant entered Sweden as

a tourist in September 1991. In November 1991 he went to Hungary in

order to meet his family. The family did not apply for asylum until

8 January 1992. The Government consider that the army of the Federal

Republic of Yugoslavia is not presently involved in war. Thus, there

are no general obstacles to returning a person enlisted in this army.

The Swedish authorities are carefully following the events in former

Yugoslavia, including the treatment of deserters. The Government have

received no information indicating that deserters have been treated by

the military authorities in a way which could be considered contrary

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

information shows that those who evade military service receive fairly

lenient punishments, if at all brought to trial. The risk that the

first applicant might be imprisoned for his evasion from military

service or compelled to perform such service is in no circumstances

sufficient to raise an issue under Article 3 (Art. 3). Finally, the

applicants have in no way been politically active in such a way as to

entitle them to asylum.

The Government therefore conclude that there are no substantial

grounds for believing that the applicants would run a real risk of

being subjected to treatment contrary to Article 3 (Art. 3) of the

Convention. The mere possibility of ill-treatment is not in itself

sufficient to give rise to a breach of Article 3 (Art. 3). The

Government emphasise that Chapter 8, Section 1, of the Aliens Act,

regarding the enforcement of an expulsion order, reflects almost

exactly the principles outlined by the European Court of Human Rights

when applying Article 3 (Art. 3) to expulsion or extradition cases.

The applicants point out that the law on desertion in the Federal

Republic of Yugoslavia provides for sentences from five years'

imprisonment to capital punishment. Thus, the first applicant clearly

runs a risk of being sentenced to death. The Swedish authorities have

not shown the contrary and the first applicant should therefore be

protected.

The applicants further refer to a statement by a Serbian lawyer

in August 1993, according to which draft evaders from the Federal

Republic of Yugoslavia will be perceived as traitors and that their

return would therefore clearly put their lives at risk. In any case,

they would be forced to fight in the war in Bosnia-Hercegovina. As the

first applicant is an officer in the reserve troops, he would be deemed

a deserter and would clearly be executed, if returned.

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., para. 103). A mere possibility of ill-

treatment is not in itself sufficient (ibid., p. 37, para. 111).

The Commission does not consider it established that the first

applicant would risk capital punishment for desertion if returned to

the Federal Republic of Yugoslavia. No question therefore arises under

Article 1 of Protocol No. 6 (Art. P6-1) to the Convention. Concerning

his possible imprisonment for that 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).

The Commission notes that the other applicants have not expressed

any fears of being subjected to treatment contrary to Article 3

(Art. 13) of the Convention on their return. The Commission also

observes that Chapter 8, Section 1, of the Aliens Act 1989 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 would be

in danger of being subjected to capital or corporal punishment, or

torture, in that country.

In conclusion, the Commission finds no substantiation of the

applicants' claim that they would be exposed to a real risk of being

subjected to treatment contrary to Article 3 (Art. 3) of the Convention

on their return to the Federal Republic of Yugoslavia.

In these circumstances the application 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.

Deputy Secretary to the Commission President of the Commission

(M. de SALVIA) (C.A. NØRGAARD)

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T.M., M.M., V.M. AND N.M. v. SWEDEN

T.M., M.M., V.M. AND N.M. v. SWEDEN