FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 47485/99

by Victor CARTAGENA OLMOS

against Sweden

The European Court of Human Rights ( First Section) sitting on 24 August 1999 as a Chamber composed of

Mr J. Casadevall , President ,

Mrs E. Palm,

Mr Gaukur Jörundsson ,

Mr C. Bîrsan ,

Mr B. Zupančič ,

Mrs W. Thomassen ,

Mr T. Pantiru , Judges ,

with Mr M. O’Boyle, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 25 January 1999 by Victor Cartagena Olmos against Sweden and registered on 15 April 1999 under file no. 47485/99;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Chilean national, was born in 1956. He is presently serving a prison sentence in Sweden.

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

On 15 December 1987 the applicant came to Sweden with M.R., a Chilean national, and their two children, born in 1975 and 1987. The applicant and M.R. had been living together since 1973. On 20 February 1988 they were granted permanent residence permits. In 1992 their third child was born in Sweden. They separated soon thereafter. All their children have Chilean citizenship. On 19 October 1997 the applicant married another Chilean national, C.D.

By a judgment of 18 February 1998 the District Court ( tingsrätten ) of Sollentuna convicted the applicant of a narcotics offence and of attempted smuggling of goods, both offences committed in December 1997. The narcotics offence, which was considered as aggravated, involved 53.9 grams of cocaine. The applicant was sentenced to two and a half years in prison. Further, in accordance with Chapter 4, Section 7 of the Aliens Act ( Utlänningslagen , 1989:529), the court ordered his expulsion from Sweden and issued a six-year prohibition on his return, i.e. until 18 February 2004. When fixing the applicant’s prison sentence, the court had regard to the detriment suffered by him on account of the expulsion. It also noted that he had been convicted for drunken driving and received suspended sentences in February 1991 and December 1993. In deciding to expel the applicant, the court noted that the applicant was unemployed and had a poor command of Swedish but nevertheless had strong ties to Sweden on account of his children. However, notwithstanding these ties, the seriousness of the crimes constituted special reasons for expelling him.

The applicant appealed to the Svea Court of Appeal ( Svea hovrätt ). He stated that his wife was pregnant and that he maintained close contacts with his children. On 22 April 1998 the Court of Appeal upheld the District Court’s judgment.

On 26 May 1998 the Supreme Court ( Högsta domstolen ) refused the applicant leave to appeal.

In July 1998 the applicant’s and C.D.’s son was born.

The applicant later requested the Government to exercise its power under Chapter 7, Section 16 of the Aliens Act to annul the expulsion order. The request was rejected on 4 February 1999.

On 26 February 1999 the applicant divorced C.D. They have joint custody of their son. On 30 April 1999 the applicant married M.R.

According to a decision of the National Paroles Board ( Kriminalvårdsnämnden ) of 24 February 1999, the applicant will be released on probation after having served two thirds of his prison sentence on 13 August 1999. However, it appears that the applicant has been indicted for tax crimes and has been summoned to appear before the District Court on 5 August 1999.

COMPLAINT

The applicant claims that the expulsion from Sweden violates his right to respect for his private and family life under Article 8 of the Convention. He refers to his wife and his four children who all live in Sweden. Further, he states that he has been living in Sweden for more than eleven years.

THE LAW

The applicant complains that his rights under Article 8 of the Convention have been violated. This provision 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 Court recalls that the expulsion of a person may amount to an unjustified interference with his rights under Article 8.

In the present case, the applicant’s expulsion could be considered as an interference with his right to respect for his private and family life. However, as the expulsion was ordered under the applicable provision of the Aliens Act following the applicant’s conviction for serious and repeated crimes, the interference was in accordance with law and pursued the legitimate aim of preventing disorder or crime.

It therefore remains for the Court to ascertain whether the measure in issue struck a fair balance between the relevant interests, namely the applicant’s right to respect for his private and family life, on the one hand, and the prevention of disorder or crime, on the other. In this respect, the Court notes that the applicant’s present wife and the children born to them are Chilean nationals who, except for the child born in 1992, all lived in Chile before coming to Sweden with the applicant in December 1987. It has not been alleged that they would be unable to follow the applicant to Chile or that the only way for them to enjoy family life with the applicant would be for the Swedish authorities to grant the applicant residence in Sweden. Also, the mother of the applicant’s fourth child is a Chilean national who could reasonably be expected to visit the applicant in Chile with the child. Further, the prohibition on the applicant’s return to Sweden is not for life but applies until 18 February 2004. As regards the seriousness of the crime committed by the applicant the Court recalls that he was sentenced for an aggravated narcotics offence involving 53.9 grams of cocaine to imprisonment for two and a half years.

Having regard to the foregoing, 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 rights 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 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 Josep Casadevall Registrar President