Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 14007/88

by Kerstin GADEDI

against Sweden

The European Commission of Human Rights sitting in private

on 14 December 1988, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

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 5 April 1988 by

Kerstin Gadedi against Sweden and registered on 8 July 1988 under file

No. 14007/88;

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 applicant, may be

summarised as follows.

The applicant is a Swedish citizen, born in 1954 and resident

at Södertälje, Sweden. She is a nursery-school teacher, but has been

receiving sickness benefits since 1 January 1983. She married a Greek

citizen on 24 April 1973, after having known him since 1969. They

have a daughter born on 5 January 1975.

The applicant's husband came to Sweden from Greece for the

first time on 26 June 1969. In 1971 he returned to Greece.

Subsequently a criminal charge was brought against him in Sweden and

he was extradited to Sweden from Germany in the summer of 1973. He was

committed to psychiatric care by the Svea Court of Appeal (Svea

hovrätt) on 23 November 1973 after having been convicted inter alia of

gross theft and robbery. In addition the Court ordered that he should

be expelled from Sweden. The applicant's husband was detained in an

institution for mental care for three months and was then expelled to

Greece.

The applicant joined him in Greece, but returned to Sweden

after three months. She had difficulties to adapt and was expecting a

child.

The child was born on 5 January 1975.

On 14 March 1978 the District Court of Stockholm (Stockholms

tingsrätt) convicted the applicant's husband of inter alia gross fraud

and illegal stay in Sweden. He was sentenced to psychiatric care.

On 4 October 1979 the District Court again convicted him of

fraud. He was sentenced to eight months' imprisonment. After having

served parts of his sentence he was released on probation on 14

February 1980. His request to be allowed to stay in Sweden was

rejected by the Government on 11 February 1980. He was accordingly

expelled from Sweden after his release.

The Government decided on 26 February 1981 that the

applicant's husband should be allowed to stay in Sweden until

31 August 1981. This time was extended until 31 December 1982 by a

decision of the Government of 17 December 1981.

On 29 May 1984 the District Court of Södertälje convicted the

applicant's husband of assault, unlawful threats, petty larceny and

threats against a public official. He was sentenced to three months'

imprisonment. He appealed against the judgment, which was confirmed

by the Svea Court of Appeal on 28 February 1985.

On 7 November 1985 the Government rejected a request from the

applicant's husband that, in the first place, the expulsion decision

concerning him be revoked or, in the second place, he nevertheless be

allowed to stay in Sweden.

On 24 February 1986 a request for non-enforcement of the

expulsion decision of 1973 was rejected by the Minister of Labour.

The applicant's husband was released from prison on

28 February 1986 and again expelled from Sweden.

In an opinion of 11 June 1987, on a request made by the

applicant that the expulsion decision concerning her husband be

revoked or he nevertheless be allowed to stay in Sweden, the Swedish

Immigration Board (statens invandrarverk) stated that her husband by

relapsing into crime had shown that he would not lead an orderly life

in Sweden. On 27 August 1987 the Government rejected the applicant's

request.

The applicant submitted a further request that the expulsion

decision be revoked or, alternatively, the prohibition for her husband

to return to Sweden be limited in time. The Government rejected her

request on 10 December 1987.

COMPLAINTS

The applicant complains that the expulsion of her husband

interferes with her right to respect for her family life and her home

as guaranteed by Article 8 of the Convention.

The applicant submits that it is not possible for her to enjoy

family life together with her husband and their daughter in Greece.

The applicant has no knowledge of Greek, nor does her daughter. It

would be difficult for them to adapt to the Greek way of life. They

never spent any longer periods in Greece.

THE LAW

The applicant complains that the expulsion of her husband from

Sweden interfered with her right to respect for family life as

guaranteed by Article 8 (Art. 8) of the Convention.

Article 8 (Art. 8) of the Convention 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."

The Commission recalls its constant case-law according to

which no right of an alien to enter or to reside in a particular

country, nor a right not to be expelled from a particular country is

as such guaranteed by the Convention (cf. e.g. No. 9203/80, Dec. 5.5.81,

D.R. 24 p. 239).

Nevertheless, Article 8 para. 1 (Art. 8-1) of the Convention

guarantees to everyone the right to respect for private and family

life.

The Commission has constantly held that the expulsion of a

person from a country where close members of his family are living may

amount to an infringement of Article 8 (Art. 8).

In the present case the Commission accepts that the expulsion

of the applicant's husband constituted an interference with the

applicant's right to respect for her family life in the meaning of

Article 8 para. 1 (Art. 8-1). The question therefore arises whether

this interference was justified under Article 8 para. 2 (Art. 8-2) as

being effected in accordance with the law and as being necessary for

one or more of the purposes indicated in Article 8 para. 2 (Art. 8-2).

The Commission is satisfied that the expulsion was ordered and

effected in accordance with Swedish law. Since the reason for the

expulsion was the applicant's husband's criminal behaviour, the

Commission also accepts the purpose of the measure as being the

prevention of disorder or crime as referred to in Article 8 para. 2

(Art. 8-2).

As regards the necessity of the measure, the Commission first

recalls that in several cases of married men being expelled the

Commission has attached some importance to the question as to whether

the wife would be able to follow her husband to establish together

with him their family life in another country (see, for instance,

No. 8041/77, Dec. 15.12.77, D.R. 12 p. 197).

In the present case, the Commission recognises the problems

which the applicant would have to face if she decided to move with her

daughter to her husband's home-country Greece. However, the Commission

does not find it excluded that their family life could be

re-established in Greece.

In any case, the Commission must attach great weight to the

applicant's husband's criminal record in Sweden and, in particular, to

the fact that, after the expulsion order was made in 1973, he was

convicted of new offences in 1978 and 1979 and that, after he had

again been expelled but allowed to return to Sweden on a trial basis

in 1981, he was again convicted in 1984 of offences, including assault

and threats.

In these circumstances, the Commission considers that the

Swedish authorities were justified in regarding the applicant's

husband's expulsion in 1986 as a measure necessary for the prevention

of disorder or crime.

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)

Menu

GADEDI v. SWEDEN

GADEDI v. SWEDEN

LEXI