FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 41216/98

by Hasan TORUNLAR

against Sweden

The European Court of Human Rights ( First Section) sitting on 1 June 1999 as a Chamber composed of

Mr J. Casadevall , President ,

Mrs E. Palm

Mr Gaukur Jörundsson ,

Mr R. Türmen ,

Mr C. Bîrsan ,

Mrs W. Thomassen ,

Mr R. Maruste , 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 29 December 1997 by Hasan Torunlar   against Sweden and registered on 14 May 1998 under file no. 41216/98;

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

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Turkish national, born in 1961 and presently residing in EskiÅŸehir , Turkey.

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

The applicant lived in Sweden between December 1991 and March 1998. On 17 June 1992 he was granted a residence permit based on the fact that he had married a Swedish woman, A.T. They have a daughter, born in 1992, and a son, born in 1993. On 15 June 1994 the applicant was granted a permanent residence permit.

On 5 December 1995 the applicant was sentenced to two months in prison for having threatened A.T. ( olaga hot ) and obstructed the course of justice ( övergrepp i rättssak ) in May 1995. On 29 January 1996 he was convicted of nine counts of threatening behaviour and three counts of obstruction of justice committed in June - August 1995. The threats were directed against A.T. and members of her family. The applicant received a ten months’ prison sentence. He was released on probation on 28 July 1996.

On an unspecified date the applicant and A.T. divorced. It appears that A.T. has custody of the children. After his release from prison the applicant had contacts with the children every Saturday or Sunday at A.T.’s home.

By a judgment of 23 July 1997 the District Court ( tingsrätten ) of Helsingborg sentenced the applicant to ten months’ imprisonment, ordered his expulsion from Sweden and prohibited him from returning before 23 July 2002. The court found that, on 20 June 1997, the applicant had turned up at A.T.’s home and had assaulted and threatened A.T. and guests she had invited to a party. As a result of the assault, A.T. had facial injuries and a broken nose. The applicant was found guilty also of criminal damage ( skadegörelse ).

As regards the applicant’s expulsion, the District Court made the following conclusions:

(Translation)

“The crimes in question are such that it is possible to expel the applicant under Chapter 4, Section 7, second sentence, first paragraph of the Aliens Act [ Utlänningslagen ]. However, Chapter 4, Section 10 of the Aliens Act requires that there be special reasons for the expulsion as, at the time of the indictment, he had been living in Sweden for more than five years. [The applicant] has not established himself in the Swedish labour market. For the third time in two years, he has committed crimes against the persons representing his only connection to Sweden. Further, his crimes seem to have become more serious. Also his children have been indirectly affected by his criminal acts. It appears that the contacts with the children will be very limited in the foreseeable future even if [the applicant] remains in Sweden. In weighing the circumstances in favour of and against expulsion, the District Court finds that there are special reasons for expelling [the applicant] from Sweden. ...”

On 17 September 1997 the Court of Appeal ( hovrätten ) of Skåne and Blekinge upheld the District Court’s judgment. On 20 October 1997 the Supreme Court ( Högsta domstolen ) refused the applicant leave to appeal.

Later the applicant requested the Government to exercise its power under Chapter 7, Section 16 of the Aliens Act to annul the expulsion order. By a decision of 12 February 1998 the Government rejected the request.

On 4 March 1998 the applicant was released on probation and expelled to Turkey.

COMPLAINT

The applicant complains that, on account of his expulsion from Sweden, he is unable to see his children. He does not invoke any provisions of the Convention.

THE LAW

The Court finds that the application is to be considered under Article 8 of the Convention which provides the following:

“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 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).

In the present case, the applicant’s expulsion could be considered as an interference with his right to respect for his family life. However, as the expulsion was ordered under the applicable provision of the Aliens Act 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”, the Court notes that the applicant had been convicted three times in a relatively short period of time and had been sentenced to a total of 22 months in prison. The crimes were of a particularly serious nature, being directed against persons representing his connection to Sweden, in particular his former wife, and also indirectly affecting his children. 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 23 July 2002, i.e. about four years and four months after his expulsion from Sweden. In these circumstances, 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 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