FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 40746/98 by Agim BUTOVAC against Sweden

The European Court of Human Rights (First Section) , sitting on 4 July 2000 as a Chamber composed of

Mrs W. Thomassen, President , Mrs E. Palm, Mr Gaukur Jörundsson, Mr R. Türmen, Mr C. Bîrsan, Mr J. Casadevall, Mr R. Maruste, judges , and Mr M. O’Boyle, Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 21 October 1997 and registered on 14 April 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant is a national of Yugoslavia, born in 1969.  Before the Court he is represented by Mr Bertil Dahlström , a lawyer practising in Sundsvall , Sweden.

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

On 22 May 1992 the applicant and his wife, Z.B., arrived in Sweden with their son, born in October 1991.  They applied for asylum.  In May 1993 their daughter was born.  On 17 August 1993 the National Immigration Board ( Statens invandrarverk ) rejected the application.  The decision was upheld by the Aliens Appeals Board ( Utlänningsnämnden ) on 6 October 1994.  However, due to difficulties in expelling people to Yugoslavia, the family remained in Sweden.

By a judgment of 21 February 1997 the District Court ( tingsrätten ) of Sundsvall sentenced the applicant to three months in prison for, inter alia , threatening behaviour ( olaga hot ) and violation of a visiting ban ( överträdelse av besöksförbud ).  The court ordered his expulsion from Sweden and prohibited him from returning before 21 February 2002.  The court noted that, following several reports by Z.B. that she had been threatened by the applicant, the public prosecutor, by a decision of 21 January 1997, had banned the applicant from visiting Z.B. for a period of 5 months.  She had also been given a security alarm by the police.  The court found that the applicant, on 24 and 31 January 1997, had violated the visiting ban and had threatened to “cut [ Z.B.’s ] throat”.

The District Court took into account that, on five occasions between 1993 and 1996, the applicant had been fined for various crimes, including threatening behaviour in 1994 and drunken driving ( rattfylleri ) and shoplifting ( snatteri ) in 1996.  In fixing his sentence at 3 months’ imprisonment, the court also had regard to the detriment suffered by the applicant as a result of his expulsion.

The applicant and Z.B. were divorced on 19 March 1997.  By an interim decision, Z.B. was awarded custody of the children.

On 27 March 1997 the Court of Appeal ( hovrätten ) for Southern Norrland upheld the District Court’s judgment of 21 February 1997.

On 7 April 1997 the District Court convicted the applicant of theft ( stöld ) and ordered that the previously imposed sanction should also comprise this crime.

On 25 April 1997 the Supreme Court ( Högsta domstolen ) refused the applicant leave to appeal against the Court of Appeal’s judgment of 27 March 1997.

On 15 May 1997 the applicant was sentenced by the District Court to 1 month’s imprisonment for driving without a driver’s licence ( olovlig körning ) and for a new violation of the visiting ban.  Finally, on 5 May 1998, the District Court convicted the applicant of gross drunken driving ( grovt rattfylleri ) and for driving without a driver’s licence, and sentenced him once again to 1 month’s imprisonment.

On 2 June 1997 the Aliens Appeals Board granted Z.B. and the children residence permits in Sweden.  The Board took into account that they had remained in Sweden due to the ban on expelling people to Yugoslavia.  As a result, they had lived in Sweden for 5 years and the children had developed connections to Sweden.  Thus, there were humanitarian reasons not to expel them from Sweden.

On 2 July 1997 the Aliens Appeals Board, referring to the expulsion order against the applicant, rejected his application for a residence permit.

Later the applicant requested the Government to annul the expulsion order.  By decision of 5 March 1998 the Government rejected the request.

On 8 May 1998 the District Court of Stockholm awarded Z.B. permanent custody of the children and granted the applicant a right of access to them.

On 4 June 1998 the Supreme Court rejected a request from the applicant for a re ‑ opening of the criminal proceedings against him.

On 15 July 1999 the Government rejected a new request from the applicant for annulment of the expulsion order.

COMPLAINTS

The applicant complains that, on account of his expulsion from Sweden, he will not be able to see his children for several years.  He claims that the decision to expel him was unjustified as the crimes for which he was convicted were not of a serious nature.  He invokes Articles 3 and 8 of the Convention.

THE LAW

The applicant claims that his expulsion would be contrary to Articles 3 and 8 of the Convention.

The first-mentioned Article guarantees that no one shall be subjected to torture or to inhuman or degrading treatment or punishment.

However, the Court finds no evidence that an expulsion from Sweden would expose the applicant to a risk of treatment contrary to Article 3 of the Convention.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

Article 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 Government do not dispute that there has been an interference with the applicant’s right to respect for his family life.  However, this interference was in accordance with the law and had a legitimate aim, namely public safety and the prevention of disorder or crime.

Furthermore, in the Governments’ view, the decision to expel the applicant was necessary in a democratic society.  The Government maintain in this respect, inter alia , the following.  The applicant arrived in Sweden in 1992 together with his son and then wife.  He has never been granted a residence permit but has remained in Sweden only due to difficulties in enforcing expulsions to the former republic of Yugoslavia.  The applicant’s only link to Sweden today is his two children.  The applicant committed criminal offences shortly after his arrival in Sweden.  He continued his criminal conduct even after he had been sentenced to imprisonment in 1997.  This was so, although he was fully aware of the fact that his first prison sentence had been combined with a decision to expel him.

The Government take note of the fact that several of the offences committed by the applicant have been directed against his former wife.  Since she is the mother of his children, the Government are of the opinion that the applicant appears to have been actively counteracting a good relationship with the children by means of criminal offences directed against their mother.

In sum, the Government maintain that the complaint made under Article 8 of the Convention is manifestly ill-founded.

The applicant maintains that the fact that Z.B. and the two children have now been granted resident permits on humanitarian grounds substantiates his allegation that the Convention has been violated in respect of him.  He also claims that he has a good relationship with his children.

The Court recalls that the expulsion of a person from a country in which close members of his family live may amount to an unjustified interference with his right to respect for his family life as guaranteed by Article 8 (see, among other authorities, the Moustaquim v. Belgium judgment of 18 February 1991, Series A no. 193, pp. 19–20, §§ 43–46).

It is not in dispute in the present case that the applicant’s expulsion would constitute an interference with his right to respect for his family life.  However, as the expulsion was ordered under the applicable aliens legislation following the applicant’s conviction for several crimes, the interference was in accordance with law and pursued the legitimate aim of preventing disorder or crime.  With regard to the question whether the measure was “necessary in a democratic society”, it is recalled that the applicant was convicted of having threatened Z.B.’s life.  He had also been banned from visiting her due to previous threats against her.  The Court considers that the threats were of a particularly serious nature, being directed against his then wife, the person representing his main connection to Sweden.  It is true that the applicant will not be able to visit his children in Sweden while he is prohibited from entering the country.  However, this prohibition is not permanent but applies until 21 February 2002.  In these circumstances, and also having regard to the applicant’s behaviour following the expulsion order, the Court concludes that the Swedish authorities have not failed to fulfil their obligation to strike a fair balance between the relevant interests.  Accordingly, the interference with the applicant’s right under Article 8 of the Convention is justified in that it can reasonably be considered as necessary in the interest of preventing disorder or crime.

It follows that also this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

Michael O’Boyle Wilhelmina Thomassen Registrar President