Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 16210/90

by A.S. and M.S.

against Sweden

The European Commission of Human Rights sitting in private

on 2 July 1990, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ RUIZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

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 9 February 1990

by A.S. and M.S. against Sweden and registered on 26 February 1990

under file No. 16210/90;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

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

summarised as follows.

The applicants are Bulgarian citizens, born in 1961 and 1962.

They are at present evading expulsion to Bulgaria by hiding in a

church in Sweden. Before the Commission the applicants are

represented by Mr. Mats Ljungquist, a lawyer practising in Stockholm.

The applicants and their child, born in 1985, came to Sweden

on 20 September 1989 and applied for permission to stay in Sweden.

They invoked inter alia political reasons against returning to

Bulgaria.

On 15 December 1989 the National Immigration Board (statens

invandrarverk) refused the applications and ordered that the applicants

and their child be expelled from Sweden.

The applicants appealed to the Government. The National

Immigration Board submitted an opinion dated 29 December 1989 and the

applicants' counsel submitted comments thereafter. On 25 January 1990

the Government rejected the appeal. The Government noted that, in

support of their applications for asylum, the applicants had invoked

that they were subjected to persecution in their home country on

account of their belonging to the Turkish-speaking minority in

Bulgaria. The persecution consisted inter alia in not allowing them to

keep their Turkish names and to speak Turkish. The Government found

that the situation for the Turkish-speaking minority group in Bulgaria

was such that the group generally speaking could not be considered to

be subject to persecution. They further found no indication in the

submissions that the applicants would risk persecution if they were to

return to their home country. The Government concurred with the

Immigration Board's assessment that the applicants did not have a right

to asylum as refugees in accordance with Chapter 3 Section 2 of the

Aliens Act (utlänningslagen). Furthermore they were not entitled to

remain in Sweden on any other ground. Consequently, immediate

expulsion should be ordered.

Following this decision the applicants have gone into hiding

in a church in Sweden which the police who are entrusted with the task

of enforcing the expulsion order do not enter.

COMPLAINTS

The applicants allege that their deportation to Bulgaria

would involve a violation of Article 3 of the Convention in view of

the prison sentences which they will face in Bulgaria.

PROCEEDINGS BEFORE THE COMMISSION

On 16 March 1990, following a request from the applicants, the

Commission decided not to indicate to the Government that they should

not deport the applicants pending the Commission's examination of the

case.

THE LAW

The applicants allege a violation of Article 3 of (Art. 3)

the Convention on the ground that their expulsion to Bulgaria would

involve a risk of their imprisonment in that country. The applicants

submit that the Turkish-speaking minority is persecuted in Bulgaria.

Their Turkish names have been changed to Bulgarian names. The use of

the Turkish language has been banned and those who have spoken Turkish

have been fined. Discriminatory practices have been applied against

the Turkish- speaking minority. In the summer of 1989, 318,000

Turkish-speaking Bulgarians emigrated from Bulgaria. Approximately

5,000 of them came to Sweden.

Article 3 (Art. 3) of the Convention reads:

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

degrading treatment or punishment."

The Commission first recalls that according to its established

case-law the right to asylum and the right not to be expelled are not as

such included among the rights and freedoms mentioned in the Convention

but that the expulsion of a person may nevertheless, in certain

exceptional circumstances, raise an issue under the Convention and in

particular under Article 3 (Art. 3) where there are serious grounds to

fear that the person concerned would be subjected, in the State to

which he is to be sent, to treatment which is in violation of this

Article (Art. 3) (see e.g. No. 1802/62, Dec. 26.3.63, Yearbook 6 pp.

462, 480; No. 10308/83, Dec. 3.5.84, D.R. 36 pp. 209, 231; No. 10564/83,

Dec. 10.12.84, D.R. 40 pp. 262, 265).

In the Soering case, the European Court of Human Rights stated

as follows (Eur. Court H.R., Soering judgment of 7 July 1989, Series A

no. 161, para. 91):

"In sum, the decision by a Contracting State to extradite a

fugitive may give rise to an issue under Article 3 (Art. 3), and hence

engage the responsibility of that State under the Convention,

where substantial grounds have been shown for believing that

the person concerned, if extradited, faces a real risk of

being subjected to torture or to inhuman or degrading

treatment or punishment in the requesting country. The

establishment of such responsibility inevitably involves an

assessment of conditions in the requesting country against the

standards of Article 3 (Art. 3) of the Convention."

In the Commission's view, this test also applies to cases of

expulsion. Consequently, it must be examined whether there are

substantial grounds to believe that the applicants face a real risk of

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

Convention, if deported to Bulgaria.

The Commission also recalls that ill-treatment or punishment must

obtain a certain level of severity if it is to fall within the scope of

Article 3 (Art. 3) of the Convention. The assessment of this level

depends on all the circumstances of the case, such as the nature and

context of the treatment or punishment, the manner and method of its

execution, its duration, its physical or mental effects (cf. Eur.

Court H.R., Soering judgment loc. cit. with further references). It

is clear that a prison sentence does not as such constitute treatment

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

The Commission considers that the general situation in Bulgaria

is not such that expulsion to that country would in general be a

violation of Article 3 (Art. 3) of the Convention. In order to raise

an issue under Article 3 (Art. 3) there must be some substantiation of

a risk in the specific case of treatment contrary to Article 3

(Art. 3).

The Commission has examined the applicants' submissions and

the documents in support of their application. Although it accepts

that the expulsion of the applicants involves certain hardship for

them, the Commission nevertheless finds that the information available

to it is not sufficient to conclude that there exists a substantial

risk that the applicants would be subjected to treatment contrary to

Article 3 (Art. 3) of the Convention if they were returned to Bulgaria.

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

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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A.S. ; M.S. v. SWEDEN

A.S. ; M.S. v. SWEDEN

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