Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 19373/92

by Igor VOULFOVITCH, and Maria OULIANOVA

and Marina VOULFOVITCH

against Sweden

The European Commission of Human Rights sitting in private on

13 January 1993, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Sir Basil HALL

MM. F. MARTINEZ

Mrs. J. LIDDY

MM. J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

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 20 December 1992

by Igor VOULFOVITCH, and Maria OULIANOVA and Marina VOULFOVITCH aginst

Sweden and registered on 20 January 1992 under file No. 19373/92;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having regard to the observations submitted by the respondent

Government on 26 June 1992 and the observations in reply submitted by

the applicant on 18 August 1992;

Having deliberated;

Decides as follows:

THE FACTS

Particular circumstances of the case

The facts of the case as submitted by the parties can be

summarised as follows.

The first applicant was born in 1961. He is an engineer and

tennis coach by profession. Before coming to Sweden he lived in St.

Petersburg with his wife, the second applicant, born in 1964. Together

they have a child, the third applicant. All applicants have been

citizens of the Soviet Union.

The family arrived in Sweden on 12 July 1991 on a one-day visa

expiring on 15 July 1991. In Sweden they applied for political asylum,

travel documents and residence and work permits in accordance with the

provisions of the 1989 Aliens Act (utlänningslagen 1989:529).

The applicants provided the Swedish authorities with the

following background to their application.

While at university the first applicant participated in certain

actions against the Soviet Union's war in Afghanistan. In 1983, after

the applicant's participation in one such demonstration had been

discovered, the university authorities threatened him with expulsion

from the studies and also the stopping of his father's research work

unless he cooperated with the KGB by spying on Jews. After having

discussed the matter with his father the applicant accepted. He was

thereafter asked to provide information on a Jew who was suspected of

giving secret lessons of Hebrew. He managed to meet the person in

question, but instead of following the KGB's directives, he warned the

man of the organisation's interest in his person. When in 1984 he was

summoned to do military service he was ordered by the KGB to report on

problems within his unit. After his return to university he was asked

to try to befriend a student of Greek origin in order to see if that

student possessed illegal literature. The applicant never managed to

get this information and the KGB did not give him any new assignments.

However, in 1987 he was ordered to sign a document whereby he promised

not to reveal anything of what he knew about the KGB. He signed.

Between 1987 and 1990 nothing happened. However, in December 1990 he

was again contacted by the KGB which wished him to continue to spy on

Jews in the Soviet Union. He received a proposal to make friends with

and to provide information on two Jews. However, this time the

applicant refused stating that it had been a mistake from the beginning

to cooperate with the KGB. His interlocutor ordered him to sign a new

promise not to reveal anything of what he knew about the KGB. The

applicant refused this also. The interlocutor then told him in reply

that he would regret his attitude.

At the end of January 1991 he received an anonymous and unstamped

letter stating "Jewish swine get out of here - unless you disappear

something will happen to you and your family !". Up till February 1991

he received two more letters and also telephone calls containing

threats to kill him. Also the second applicant received insulting and

threatening telephone calls. They reported the matter to the police but

the police did not take any action.

When arriving at his home on 1 April 1991 unknown men gave the

first applicant a violent blow on his head. He lost consciousness and

was taken to hospital with a brain concussion. He does not think that

it was a robbery as he carried a lot of money which was not stolen.

On 10 April 1991 unknown men in a car without number plates tried

to kidnap the third applicant while she was taken out for a walk by the

second applicant and a friend. However, thanks to the intervention of

the friend and of a passer-by who had a big dog the kidnapping attempt

failed.

Some time during the spring of 1991 someone made a fire outside

the applicants' front door and painted a swastika on the door.

On 2 July 1991 the first applicant was summoned to the local

department for internal affairs (MVD) charged with dealing with

currencies on the black market. He had to sign a paper whereby he

promised not to leave St. Petersburg and on 8 July he received a new

summons to appear on 12 July. However, on 11 July, the applicants left

St. Petersburg for Sweden on board the steamer Iljitj, availing

themselves of a permit, previously issued, for them to leave the

country to go to Sweden and the USA. They did not encounter any

problems entering Sweden.

While still in St. Petersburg, the applicants had hoped to

continue from Sweden to the USA with the financial help of a friend

there. However the friend got into economic difficulties and could no

longer provide any such help. The first applicant accordingly decided

to take his family to Sweden.

According to information provided by a friend residing in

Stockholm the local militia in St. Petersburg has been searching for

the first applicant inter alia at his parents' home. In addition, the

applicants received information that the windows of their home, where

the second applicant's parents now live, had been smashed by stones and

that anti-semitic slogans had been carved into the front door.

Furthermore the parents had received anti-semitic telephone calls. The

father had reported the matter to the police which had not taken any

action.

On 25 November 1991 the National Board of Immigration (statens

invandrarverk) decided to hand the cases over to the Government for

decision in accordance with Chapter 7, Section 11 of the Aliens Act

because of the special circumstances obtaining. In a memorandum annexed

to this decision the Board concluded that the applicant's

trustworthiness could be questioned but that, even if their story was

accepted, the circumstances were not sufficiently serious to warrant

the granting of their applications for political asylum.

On 19 December 1991 the Government (Ministry of Labour) decided

to reject the applicants' requests and to forbid the applicants to

return to Sweden before 1 January 1994 without authorization from the

National Immigration Board. It also recalled that the decision

contained material which might be secret under the Secrecy Act

(sekretesslagen 1980:100). The reasons given were the following:

"In support of his request Igor Voulfovitch has mainly submitted

that he has refused to cooperate with the KGB in order to spy on

Jews and that he and his family have been exposed to anti-semitic

harassment through anonymous letters, telephone calls and

Swastika paintings.

The harassment to which Igor Voulfovitch has been exposed in his

home country is not of such a serious character and not in such

a way supported by the State that he and his wife Marina

Oulianova and their child can be considered as refugees in

accordance with Chapter 3, Section 2 of the Aliens Act. Nor does

there exist any such weighty reason as is referred to in Chapter

3, Section 1 § 3 of the same law. Nor are there any other grounds

for allowing them to remain in the country."

On 14 April 1992 the applicants applied to the Board for a

residence permit and for the suspension of the Government's expulsion

decision. They referred to continued reports of harassment of Jews in

Russia and to the fact that the third applicant's personal development

was seriously endangered as a result of the stress following the

rejection of their application for political asylum. On the last point

they invoked inter alia a certificate from the Psychiatric Child and

Youth Care Centre of the Stockholm County Council (psykiatriska barn-

och ungdomsvården, Stockholms landsting). They also emphasised that

they risked 3 to 5 years imprisonment because they had violated the

foreign exchange regulations when they left St. Petersburg: the customs

authorities had caught them while attempting to bring 1,470 USD with

them instead of the authorised 100 USD. They submitted three summonses

to appear before the public prosecutor relating to these charges, the

first dated 16 January 1992.

On 5 May 1992 the Board rejected their application. The Board

stated inter alia:

"According to Chapter 2, Section 5 of the Aliens Act a

request for residence permit, submitted by an alien who is

to be refused entry or expelled in accordance with a

decision which has gained legal force can only be granted

if the request is based on circumstances that have not been

previously examined in connection with the question of

refusal of entry or expulsion and if the applicant has a

right to political asylum here or if there are otherwise

very special grounds (synnerliga skäl) of a humanitarian

character.

...

The circumstances invoked in the present case regarding

ethnic harassment and suspicion of certain criminality, the

trustworthiness of which may be questioned, do not change

the Government's assessment that there is no ground for

asylum. Nor are there sufficiently strong reasons of a

humanitarian character to annul the Government's decision

and to grant a residence permit."

The applicants are at present in hiding somewhere in Sweden. The

details of their expulsion, including the date, have not been fixed.

However, under Chapter 8 of the Aliens Act, the police authority is to

enforce, as soon as possible, their expulsion to their home country.

Relevant domestic law

The relevant provisions of the Aliens Act read:

Chapter 1: Conditions applying to the residence of aliens in

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Sweden etc...

- - - - - - -

Section 4: "An alien staying more than three months in Sweden

shall have a residence permit unless he is a citizen of Denmark,

Finland, Norway or Iceland. ... ."

Chapter 2: Further provisions on visas, residence and work

- - - - - - - - - - - - - - - - - - - - - - - - - - - - -

permits

- - - -

Section 5: " ... If, however, the alien is to be refused entry

or to be expelled under an order which has acquired legal force, an

application by him for a residence permit may only be granted if it is

based on circumstances which have not previously been examined in the

case concerning refusal of entry or expulsion and if

1. the alien is entitled to asylum in Sweden, or

2. there are other exceptional grounds of a humanitarian nature

involved."

Chapter 3: Asylum

- - - - - - - - -

Section 1: "The term asylum as used in this Act refers to a

residence permit awarded to an alien because

1. he is a refugee,

...

3. without being a refugee, he is unwilling to return to

his country of origin on account of the political situation

there and is able to plead very strong grounds in support

of this."

Section 2: "The term refugee in the present Act refers to any

foreigner who is staying outside the country of which he is a citizen

because he feels a well-founded fear of being persecuted in that

country because of his race, nationality, belonging to a special group

in society or his religious or political convictions and who cannot or

who does not wish to avail himself of his home country's protection

..."

Section 4: "An alien as referred to in Section 1 is entitled to

asylum.

Asylum may, however, be refused if

1. in view of what is known concerning the alien's

previous activities or, for considerations of national

security, there are exceptional grounds for not granting

asylum,

2. in the case of an alien coming under Section 1 ...

(3), there are special grounds for not granting asylum

..."

Chapter 4: Refusal of entry and expulsion

- - - - - - - - - - - - - - - - - - - - -

Section 1: "An alien may be refused entry

...

2. if he lacks a visa, residence permit or other document

required for entry, residence or employment in Sweden,

..."

Section 12: "When a question concerning refusal of entry or

expulsion is examined, it is to be considered whether the alien,

pursuant to the provisions of Chapter 8, Sections 1 - 4, cannot be sent

to a particular country or whether there are other special obstacles

to the decision being enforced.

Decisions made by the Government or the ... Board are to include

such directions with regard to enforcement as this examination may call

for."

Chapter 8: Enforcement

- - - - - - - - - - - -

Section 1: "An alien who has been refused entry or who is to be

expelled may never be sent to a country where there is firm reason to

believe that he would be in danger of suffering capital or corporal

punishment or of being subjected to torture, nor to a country where he

is not protected from being sent to a country where he would be in such

danger."

Section 2: "When a refusal-of-entry or expulsion order is to be

put into effect, the alien may not be sent to a country where he would

risk being persecuted, nor to a country where he would not be protected

from being sent on to a country where he would risk being persecuted.

An alien may, however, be sent to a country as referred to in

sub-paragraph 1 if he cannot be sent to any other country and if he has

shown, by committing a particular offence, that public order and safety

would be seriously endangered by his being allowed to remain in Sweden.

This does not apply if the persecution threatening him in the other

country implies danger to his life or is otherwise of a particularly

grave nature.

Similarly, the alien may be sent to a country referred to in sub-

paragraph 1 if he has conducted activities endangering the national

security of Sweden and if there is reason to suppose that he would

continue to engage in such activities here and he cannot be sent to any

other country."

Section 5: "If enforcement is not subject to any obstacles under

Sections 1-4, an alien who has been refused entry or who is to be

expelled is to be sent to his country of origin or, if possible, to the

country from which he came to Sweden.

If the decision cannot be put into effect in the manner indicated

in sub-paragraph 1 or there are other special grounds for doing so, the

alien may be sent to some other country instead."

Section 13: "If the enforcing authority finds that enforcement

cannot be carried out or that further information is needed, the

authority is to notify the ... Board accordingly. In such a case, the

... Board may decide on the question of enforcement or take such other

measures as are necessary. ... "

COMPLAINTS

The applicants complain of the decision to refuse them entry into

Sweden. They maintain that:

1. their expulsion to Russia would be contrary to Article 3 of the

Convention: they run a great risk of being persecuted there on account

of the first applicant's Jewish origins and his previous collaboration

with the KGB; the first applicant also risks criminal sanctions for

having left St. Petersburg without permission and for having violated

the foreign exchange regulations;

2. they have been the victims of a violation of Article 13 of the

Convention as they have had no effective remedy before any domestic

authority in respect of the Government's decision;

3. they have also been the victims of a violation of Article 1, sub-

paragraph 1, sub-section b, of Protocol No. 7 to the Convention in that

the National Immigration Board handed the case over to the Government

which, accordingly, took the expulsion decision as first and final

instance, thus depriving the applicants of their right under this

Article to have a review of their case.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 20 December 1991. On 17 January

1992 the Commission rejected the applicants' request under Rule 36 of

the Commission's Rules of Procedure for interim assistance in order to

prevent their expulsion to Russia, but it decided to bring the case to

the notice of the respondent Government and to invite them to submit

observations in writing on the admissibility and merits of the

application. The application was registered on 20 January 1992.

On 26 June 1992 the Government submitted their observations to

which the applicants replied on 18 August 1992.

THE LAW

1. The applicants complain that their expulsion to Russia would be

contrary to Article 3 (Art. 3) of the Convention because of the risk

of persecution and prosecution there. Article 3 (Art. 3) reads:

"No one shall be subjected to torture or to inhuman or degrading

treatment or punishment."

According to the constant case-law of the Convention organs a

person facing extradition or expulsion to a foreign state may, where

the measure is imminent, claim to be a victim of a violation of, inter

alia, Article 3 (Art. 3) of the Convention if the measure might expose

him in that other country to a serious risk of treatment contrary to

this Article (see, inter alia, No. 10479/83, Dec. 12.3.84, D.R. 37 p.

158; Eur. Court H.R., Vilvarajah and Others judgment of 30 October

1991, Series A No. 215, p. 34, para. 103).

As regards the seriousness of the risk of treatment in their home

country the applicants have pointed out the first applicant's Jewish

origins, his past collaboration with the KGB, the threats, harassments

and persecution which he and his family experienced in St. Petersburg

before they fled from the country and the subsequent information

regarding continued harassments of Jews in Russia in general and in

St. Petersburg in particular which he has received inter alia from his

wife's parents. The first applicant also stresses that he risks serious

sanctions - 3 to 5 years imprisonment - as a result of the breach of

foreign exchange regulations and of having left the city without

permission despite his having signed a clear undertaking not to do so.

The Government maintain that the applicants' expulsion to Russia

would not violate Article 3 (Art. 3) of the Convention. The mere fact

that the applicants may have experienced harassments and threats there

before fleeing to Sweden - something which has not been proved - is not

sufficient to establish that there is still a sufficiently great risk

of such treatment to make their expulsion to Russia today contrary to

Article 3 (Art. 3) of the Convention. In this context the Government

emphasise the changes which have taken place in the former Soviet Union

and the rest of the world during the last few years and which have led

to the dissolution of the Union, with its more than one hundred

different population groups, into a number of independent states united

in a commonwealth. They state that the ensuing situation caused - not

unexpectedly - some general instability and unrest.

The information available to the Government in the last part of

the autumn 1991 with regard to the situation of ethnic minorities in

the former Soviet Union included the following. As a rule there seemed,

at the time, to exist no state-sanctioned discrimination of minority

groups. However, there was an increase of anti-Russian sentiments in

many peripheral republics. Increasing frustration in society also gave

rise to racism on the grass root level. This racism was directed

against all available dissentient groups, including the Jewish

community. Jews existed as minority groups all over the Soviet Union

and were therefore at risk of harassment in various republics. However,

reports of serious harassment had been few. During the previous year,

Jewish cultural centres and synagogues had opened in different parts

of the former Soviet Union.

The Government claim that, bearing in mind the unsubstantiated

character of the applicants' allegations and the developments in the

former Soviet Union, the existence of a mere possibility of ill-

treatment is not in itself sufficient to make the expulsion of the

applicants to Russia a violation of Article 3 (Art. 3) of the

Convention; the incidents relied upon are not severe enough, and the

connection to the authorities of Russia is too vague.

The Commission recalls that the Contracting States have the

right, as a matter of well-established international law and subject

to their treaty obligations including Article 3 (Art. 3), to control

the entry, residence and expulsion of aliens and furthermore that the

right to political asylum is not protected by either the Convention or

its Protocols (see, inter alia, Eur. Court H.R., Vilvarajah and Others

judgment of 30 October 1991, Series A No. 215, p. 34, para. 102).

However, the expulsion of an alien may give rise to an issue under

Article 3 (Art. 3), and hence engage the responsibility of the

expelling State under the Convention, where substantial grounds have

been shown for believing that the person concerned could face a real

risk of being subjected to torture or to inhuman or degrading treatment

or punishment in the country to which he is to be returned; a mere

possibility of ill-treatment is not in itself sufficient in this

context (ibid., pp. 34 and 37, paras. 103 and 111). Furthermore, ill-

treatment must attain a minimum level of severity if it is to fall

within the scope of Article 3 (Art. 3) (ibid., p. 36, para. 107).

The Commission has examined the applicants's allegations of risk

of ill-treatment if returned to Russia in the light of the above case-

law. It notes first of all that it is still not clear if the applicants

must be expelled to that country or if they could also seek to be sent

to some other country willing to accept them, e.g. Israel. However the

Commission has not found it necessary to clarify this question as, in

any event, it does not find that there are substantial grounds for

believing that the applicants are faced with a real risk of being

subjected to treatment contrary to Article 3 (Art. 3) if returned to

Russia. In reaching this conclusion the Commission has in particular

noted the changes which have taken place in Russia in the last few

years and which have led to significant progress towards increased

respect for human rights and the absence of evidence of any government-

supported discrimination against persons of Jewish origin.

The Commission accordingly concludes that the applicants'

complaints under Article 3 (Art. 3) of the Convention have to be

rejected as being manifestly ill-founded, in accordance with Article

27 para. 2 (Art. 27-2) of the Convention.

2. The applicants also allege a violation of Article 13 (Art. 13)

of the Convention in that they claim not to have had any effective

remedy before a national authority in respect of their allegations of

a violation of Article 3 (Art. 3) of the Convention.

The Commission recalls that Article 13 (Art. 13) requires that

any individual who has an arguable claim to be the victim of a

violation of the rights set forth in the Convention, should have a

remedy before a national authority in order both to have his claim

decided and, if appropriate, to obtain redress (see, inter alia, Eur.

Court H.R., Leander judgment 26 March 1987, Series A No. 116, pp. 29 -

30, para. 77 and Boyle and Rice judgment of 27 April 1988, Series A

no. 131, pp. 23 - 24, paras. 52 - 55). In the present case, the

Commission has rejected the applicants' main complaints as manifestly

ill-founded as it has not found that there are substantial grounds for

believing that they are faced with a real risk of being subjected to

treatment contrary to Article 3 (Art. 3) of the Convention if sent back

to Russia. Against this background the Commission does not consider

that the applicants' have any "arguable" claims for the purposes of

Article 13 (Art. 13) of the Convention.

It follows that this part of the application is also manifestly

ill-founded and has to be rejected in accordance with Article 27

para. 2 (Art. 27-2) of the Convention.

3. The applicants also complain about a violation of Article 1, sub-

paragraph 1 (b) of Protocol No. 7 (P7-1-1-b) to the Convention in that

they had no right to have the Government's decision to expel them

reviewed. The Article in question reads in its relevant parts:

"An alien lawfully resident in the territory of a State shall not

be expelled therefrom except in pursuance of a decision reached

in accordance with law and shall be allowed:

...

b. to have his case reviewed ... ."

The applicants maintain that, according to Swedish law, they were

lawfully resident in the country until the Government took the

expulsion decision. They also maintain that, as the Board sent their

case to the Government for decision, it was also the Government which

in first and final instance decided to expel them, thus depriving them

of their right under Article 1, sub-paragraph 1 (b) (Art. 1-1-b), to

have their case reviewed.

The Government contend in the first place that the application

is incompatible ratione materiae with the provisions of the Convention

and its Protocols since the applicants cannot be said to have been

lawfully resident in Sweden. They entered the country on a one-day visa

valid until 15 July 1991. The Government stress in this context that

persons admitted to the territory of the state for non-residential

purposes or who are awaiting the decision on a request for a residence

permit do not fall within the scope of the protection afforded by

Article 1 of Protocol No. 7 (P7-1). The also maintain that it must be

up to national law to determine the conditions for a person's presence

on the national territory to be "lawful" within the meaning of this

Article and that, as soon as an alien does not comply with one or more

of these conditions, his presence can no longer be considered "lawful"

within the meaning of Article 1 of Protocol No. 7 (P7-1).

The Commission recalls that the point of departure for the

interpretation of the Convention is the ordinary meaning of the terms

used, read in their context and having regard inter alia to the object

and purpose of the Convention (see, inter alia, Eur. Court H.R., Golder

judgment of 21 February 1975, Series A No. 18, p. 14, paras. 29-30).

In the context of an instrument which, like the Convention, does not

guarantee a right to asylum or other residence authorization, the term

"lawfully resident" used in Article 1 of Protocol No. 7 (P7-1) must be

interpreted to refer basically to lawfulness of the presence according

to national law. Thus an alien whose visa or residence permit has

expired cannot, at least normally, be regarded as being "lawfully

resident" in the country.

Whatever the exact scope of the term lawfully resident it clearly

does not comprise aliens in the applicants' situation. The applicants

only had a transit visa for a one-day visit to Sweden and have

remained, after the expiry of the visa, in the country solely in order

to await, first, a decision on their request for political asylum or

residence permits and, subsequently, the enforcement of the expulsion

decision.

Their complaints under this provision must therefore be declared

inadmissible as being incompatible ratione materiae with the provisions

of the Convention and its Protocols, in application of Article 27

para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission unanimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. Krüger) (C.A. Nørgaard)

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VOULFOVITCH AND OULIANOVA v. SWEDEN

VOULFOVITCH AND OULIANOVA v. SWEDEN