Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 18417/91

by Nebil and Maryem KÜCÜKASLAN

against Sweden

The European Commission of Human Rights (Second Chamber) sitting

in private on 2 December 1992, the following members being present:

MM. S. TRECHSEL, President of the Second Chamber

G. JÖRUNDSSON

A. WEITZEL

J.-C. SOYER

H. G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

MM. F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

Mr. K. ROGGE, Secretary to the Second 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 28 March 1991 by

Nebil and Maryem KÃœCÃœKASLAN against Sweden and registered on

26 June 1991 under file No. 18417/91;

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 6 May 1992 and the observations in reply submitted by the

applicant on 31 August and 20 November 1992;

Having deliberated;

Decides as follows:

THE FACTS

The first applicant, born in 1968, is a Turkish and the second

applicant, born in 1970, is a Swedish citizen. The applicants are

husband and wife and reside at Norsborg. Before the Commission they are

represented by Mr. Hans Engström, a lawyer practising at Skärholmen.

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

summarised as follows.

Particular circumstances of the case

The first applicant came to Sweden in the beginning of 1988. He

is a Christian Syrian-Orthodox. The second applicant arrived in Sweden

as a young girl; her family are Syrian-Orthodox refugees from Turkey.

From 1989 the applicants have lived together and on 24 November 1990

they married.

On 2 February 1988 the first applicant's Turkish passport

expired, as he had not performed military service in Turkey. The

passport cannot be renewed before he has performed that service.

On 23 April 1988 the first applicant requested a residence and

work permit in Sweden, referring to his forthcoming military service

in Turkey and his having testified as a witness in the trial of a

muslim and member of the Kurdish Workers' Party ("PKK") suspected of

having murdered a person in the first applicant's home town in 1982.

The person convicted had subsequently escaped from prison and intended

to kill the first applicant in retaliation for his testimony. That

person had also previously been engaged in persuading Orthodox

Christian youths to join the PKK, those refusing to do so having been

killed. Most Christians had, therefore, left the Midyat area.

On 14 September 1988 the National Immigration Board (statens

invandrarverk) refused the request, finding that the political reasons

involved were not sufficient to consider the first applicant a refugee

under Section 3 of the 1980 Aliens Act (utlänningslag 1980:376).

Moreover, the circumstances did not warrant granting him permission to

stay in accordance with Section 6. Finally, as the requirements of

Section 33 of the 1980 Aliens Ordinance (utlänningsförordning 1980:373)

were not met he could not be granted a residence permit (see Relevant

domestic law below). Accordingly, he was ordered to be expelled and

prohibited from returning before 1 October 1990.

On 3 May 1989 the Government rejected his appeal.

On 12 June 1989 the police authority of Huddinge ordered that the

first applicant be detained for the purposes of enforcing the expulsion

order. He could, however, not be found.

In a petition of 2 August 1989 to the police authority he

requested a stay of execution of the expulsion order and that the

matter be referred to the National Immigration Board. He referred to

a detention order issued by a Turkish military court.

On 11 August 1989 the police authority quashed its detention

order and referred the matter to the National Immigration Board, which

on 23 January 1990 referred it to the Government.

On 30 August 1990 the Government found that there were no

obstacles to the first applicant's expulsion to Turkey.

On 18 October 1990 the first applicant again requested a stay of

execution of the expulsion order.

On 29 October 1990 the National Immigration Board, considering

the petition also as a new request for a residence permit, rejected

this as well as the request for a stay of execution.

On 14 January and 12 March 1991 the National Immigration Board

rejected his further requests for a residence permit. It further found

no reason to suspend the enforcement of the expulsion order.

On 26 June 1991 the first applicant lodged a fresh request for

a residence permit, referring, inter alia, to a report by the Swedish

Embassy in Turkey on persecution of Syrian-Orthodox Christians.

On 20 December 1991 he was granted a permanent residence permit

in Sweden.

Relevant domestic law

Up to 1 July 1989 the provisions regarding entry and expulsion

of aliens were contained in the 1980 Aliens Act and the 1980 Aliens

Ordinance.

On 1 July 1989 these statutes were replaced by the 1989 Aliens

Act (utlänningslag 1989:529) and the 1989 Aliens Ordinance (utlännings-

förordning 1989:547).

Under Section 3 of the 1980 Act an alien was not to be refused

asylum in Sweden without weighty reasons, provided he was in need of

such protection. An alien not eligible for refugee status but still in

need of protection was not, unless special reasons warranted a refusal,

to be refused permission to stay, provided he was unwilling to return

to his home country due to the political situation there and alleged

weighty reasons in support of his request (Section 6).

An alien intending to settle in Sweden or to remain there for

more than three months had to obtain a residence permit before entering

the country. An alien having entered Sweden in contravention of this

rule could only under certain circumstances be granted a permit while

in the country or upon an application lodged in the country (Section

33 of the 1980 Ordinance).

PROCEEDINGS BEFORE THE COMMISSION

On 3 April 1991 the applicants requested the Commission to apply

Rule 36 of its Rules of Procedure. This request was rejected by the

President on the same day.

On 12 September 1991 the Rapporteur decided pursuant to Rule 47

para. 2 (a) of the Commission's Rules of Procedure to request further

information from the respondent Government. Following two extensions

of the time-limit the information was submitted by the Government on

25 October 1991. The applicants' comments were submitted on 28 November

1991. On 6 January 1992 the Commission decided pursuant to Rule 48

para. 2 (b) to invite the Government to submit written observations on

the admissibility and merits of the application. It further decided to

refer the application to the Second Chamber.

Following two extensions of the time-limit the Government's

observations were submitted on 6 May 1992. Following an extension of

the time-limit the applicants' observations in reply were submitted on

31 August and 20 November 1992.

COMPLAINTS

The applicants initially complained that the first applicant, if

expelled to Turkey, would be imprisoned for desertion as well as

possibly persecuted and killed; that, in any case, he would have to

perform "two years of hard military service in a Muslim army"; that the

applicants would be separated possibly for three years or longer, as

the second applicant's family was living in Sweden, she did not speak

Turkish and she would not be granted a residence permit in Turkey. The

first applicant having been granted a permanent residence permit in

Sweden in December 1991 the applicants now complain of their fear of

an enforcement of the expulsion order up to the issuing of that permit.

They invoke Articles 8 and 12 of the Convention.

THE LAW

The applicants initially complained that the first applicant, if

deported to Turkey, would be imprisoned for having deserted from the

Turkish army and possibly persecuted and killed. In any case, he would

have to perform two years of hard military service in a Muslim army.

Finally, the applicants would be separated possibly for three years or

longer. The applicants now complain of their fear of an enforcement of

the expulsion order up to the issuing of a residence permit to the

first applicant. They invoke Articles 8 and 12 (Art. 8, 12) of the

Convention.

Article 8 (Art. 8) reads as follows:

"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."

Article 12 (Art. 12) states:

"Men and women of marriageable age have the right to marry

and to found a family, according to the national laws

governing the exercise of this right."

The Government submit that the application is incompatible

ratione personae with the provisions of the Convention, as the

applicants can no longer claim to be "victims" under Article 25

(Art. 25) of the Convention, the first applicant having been granted

a permanent residence permit in Sweden on 20 December 1991. As the

applicants' marriage was brought to the Government's knowledge already

on 14 January 1991 no active steps were taken between that date and

20 December 1991 to have the then valid expulsion order enforced.

The applicants contend that they are still victims within the

meaning of Article 25 (Art. 25) of the Convention. Execution of the

expulsion order was never formally stayed. The first applicant was

wanted by the police in order to have the expulsion order enforced.

Thus, the applicants had lived under a permanent threat of enforcement

of the expulsion order until the issuing of the permanent residence

permit.

Under Article 25 para. 1 (Art. 25-1) of the Convention the

Commission may deal with an application from a person, non-governmental

organisation or group of individuals only if the applicant can claim

to be a victim of a violation, by one of the High Contracting Parties,

of the rights set forth in the Convention or its Protocols.

On the question whether notwithstanding the permanent residence

permit granted to the first applicant the applicants may still claim

to be "victims" under Article 25 para. 1 (Art. 25-1), the Commission

observes that, although the first applicant was subject to expulsion

from Sweden by a decision of the Government made already in 1989, this

order was never enforced. Even accepting that between the issuing of

the expulsion order and the granting of the permanent residence permit

the applicants felt a certain anxiety this effect of the expulsion

order no longer exists, with the result that the applicants can no

longer claim to be victims under the Convention (cf. No. 9856/82, Dec.

14.5.87, D.R. 52 p. 38 [72-73]).

It follows that the application is 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 Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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KÜCÜKASLAN v. SWEDEN

KÜCÜKASLAN v. SWEDEN

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