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P. v. SWEDEN

Doc ref: 12440/86 • ECHR ID: 001-626

Document date: October 16, 1986

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Cited paragraphs: 0
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P. v. SWEDEN

Doc ref: 12440/86 • ECHR ID: 001-626

Document date: October 16, 1986

Cited paragraphs only

The European Commission of Human Rights sitting in private on

16 October 1986, the following members being present:

MM. C. A. NØRGAARD, President

J. A. FROWEIN

G. JÖRUNDSSON

S. TRECHSEL

B. KIERNAN

A. S. GÖZÜBÜYÜK

A. WEITZEL

J. C. SOYER

H. G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Mrs G. H. THUNE

Sir Basil HALL

Mr. F. MARTINEZ

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

Having regard to Article 25 (art. 25) of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 2 October 1986 by

R.P against Sweden and registered on 7 October 1986 under file

No. 12440/86;

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, Mr. R.P, is a Polish citizen, born in 1964.

The applicant is married to a Polish citizen. They have a son, born

in September 1985. At present they live in Gothenburg.

The applicant came to Sweden on 27 December 1984 to join his mother

who is married and living in Sweden. The mother's husband regards the

applicant as his son and since 30 January 1985 the applicant calls

himself by his stepfather's family name.

The applicant had a permit to stay in Sweden from 7 November 1984 to

18 July 1985 on the ground of his family links.

On 31 March 1985 the applicant's future wife came from Poland to

Sweden with a visa for ninety days. When she came to Sweden she

discovered that she was pregnant. The applicant submits that he asked

for and was granted the right to marry in Sweden and the wife gave

birth to the child in Sweden.

On 1 June 1985 the couple married. The wife submitted a request for

permission to stay and work in Sweden.

On 18 September 1985 the son was born.

On 31 January 1986 the National Board of Immigration (statens

invandrarverk) refused to grant the applicant and his wife permission

to stay any longer in Sweden, and ordered that they and their son be

expelled.

The applicant appealed to the Government which rejected the appeal on

18 September 1986.

Since his birth the son has been under medical treatment and is soon

to undergo an operation.

The applicant states that the police has told them that they must

leave the country on 31 October 1986 at the latest.

COMPLAINTS

The applicant submits that he risks a lenghty prison sentence for

desertion in Poland, since he went abroad when he was supposed to do

his military service. He further alleges that, if he is expelled, his

family will be isolated from him and his wife would be obliged to take

care of the sick child on her own.

The applicant requests a quick decision in view of the imminent

expulsion.

THE LAW

The applicant, without invoking any specific Articles of the

Convention, complains of the expulsion order issued against him and

his family. He submits inter alia that, if expelled to Poland, he

risks a lengthy prison sentence for desertion. He also submits that

his family will be isolated from him and that his wife will be obliged

to take care of their sick son.

The Commission has examined the application in the light of Articles 3

and 8 (art. 3, art. 8) of the Convention.

It is established in the Commission's case-law that the Convention

does not guarantee to an alien the right to enter or to reside in a

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

country (see eg. Dec. No. 9203/80, 5.5.81, D.R. 24, p. 239). It is

true that the Commission has held that an expulsion may in exceptional

circumstances involve a violation of Article 3 (art. 3) of the

Convention, which prohibits torture, inhuman and degrading treatment

and punishment, where there is a serious fear of treatment contrary to

Article 3 (art. 3) in the receiving State (see, inter alia

Dec. No. 7729/76, 17.12.76, D.R. 7, p. 164 at 172).

The Commission has also held that an issue may arise under Article 8

(art. 8) of the Convention, which guarantees the right to respect for

family life, if a person is expelled from a country where close

members of his family are living (see inter alia, Dec. No. 8041/77,

15.12.77, D.R. 12, p. 197).

The Commission considers however that, even if the applicant should be

punished for desertion from the army and sentenced to imprisonment in

Poland, his expulsion from Sweden cannot be regarded as such treatment

as is prohibited by Article 3 (art. 3) of the Convention.

As regards Article 8 (art. 8) of the Convention, the Commission

recalls that the applicant is a grown-up person with a family of his

own. His expulsion will not lead to a separation from his wife and

son, who will be expelled together with the applicant. The fact that

the applicant's mother lives in Sweden is not a sufficient ground for

finding that the applicant's expulsion will constitute an interference

with his right to respect for his family life under Article 8 (art. 8)

of the Convention.

Accordingly, the Commission finds that the application does not

disclose any appearance of a violation of Articles 3 or 8

(art. 3, art. 8) of the Convention.

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)

LEXI

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