AS TO THE ADMISSIBILITY OF

                      Application No. 18275/91

                      by F.B.M.

                      against Sweden

      The European Commission of Human Rights sitting in private on

7 December 1992, the following members being present:

           MM.   C.A. NØRGAARD, President

                 J.A. FROWEIN

                 S. TRECHSEL

                 F. ERMACORA

                 G. SPERDUTI

                 E. BUSUTTIL

                 G. JÖRUNDSSON

                 A.S. GÖZÜBÜYÜK

                 A. WEITZEL

                 J.-C. SOYER

                 H.G. SCHERMERS

                 H. DANELIUS

           Mrs.  G. H. THUNE

           Sir   Basil HALL

           MM.   F. MARTINEZ

                 C.L. ROZAKIS

           Mrs.  J. LIDDY

           MM.   L. LOUCAIDES

                 J.-C. GEUS

                 M.P. PELLONPÄÄ

                 B. MARXER

                 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 4 April 1991 by

F.B.M. against Sweden and registered on 28 May 1991 under file

No. 18275/91;

      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 14 October 1992 and the observations in reply submitted

by the applicant on 16 December 1991;

      Having deliberated;

      Decides as follows:

THE FACTS

Particular circumstances of the case

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

summarised as follows.

      The applicant is a citizen of Ecuador, born in 1954.  Before the

Commission he is represented by Mr. Hans Göran Franck, a lawyer from

Stockholm and a member of the Swedish Parliament.

      The applicant arrived in Sweden on 6 March 1990.  On 13 March

1990, he applied for a residence and work permit relying mainly on the

fact that his father and mother and ten out of a total of fourteen

brothers and sisters were living in Sweden; most of them had come to

the country as refugees in 1972-73 and had been granted residence

permits; the father and four of his children had also become Swedish

citizens. The applicant stated that he had stayed some 14 years in Cuba

where he had become a paediatrician. In Cuba he had also married a

Cuban woman in 1983 and together they had a child born in 1985. He had

been compelled to return to Ecuador in May 1989 as his student grant

had expired. He had left his wife and child in Cuba but hoped to be

able to reunite with them in Sweden as soon as his wife had terminated

her studies in Cuba. He added that his request had also a political

background but that he nevertheless invoked his family connections with

Sweden.

      The National Immigration Board (Statens invandrarverk,

hereinafter "the Board") rejected the application on 28 May 1990 and

ordered the applicant's expulsion (avvisning) to Ecuador unless he

could show that he would be accepted in some other country.  In its

decision the Board noted that the applicant's wife and child were still

living in Cuba and that he had lived there himself until 18 May 1989.

It concluded that the circumstances of the case were not such as to

enable it to grant the application.

      The applicant appealed to the Government invoking, inter alia,

a medical certificate dated 8 June 1990 and signed by Mr. Hans Link,

a professor of neurology. The certificate stated the following as

regards the applicant's background. The applicant had encountered

serious problems when he had returned to Ecuador as a result of his

Cuban background: mainly numerous interrogations and great difficulties

in being accepted for work. As a result of these harassments his

Swedish family had decided to have him admitted to Sweden. However,

before the applicant had time to leave Ecuador he was hit by a

circulation disorder in the brain which paralysed the right side of his

face and caused speech problems. He was treated for a short period of

time at an Ecuadorian hospital and improved somewhat whereafter he left

for Sweden where he applied for political asylum. As regards the

applicant's physical condition the certificate stated that his right

leg and arm were hit by a paralysis of medium severity, and that the

right side of his face was slightly paralysed. It added that his

condition had improved somewhat as a result of the physiotherapy given

and that the treatment planned could further improve the

applicant's condition. The certificate concluded:

(translation)

      "... expulsion of the patient from Sweden will in all

      probability have a number of extremely serious consequences

      for the patient: social isolation and misery since, as a

      matter of fact, his whole family is living in Sweden and

      since he cannot obtain gainful employment in Ecuador for

      political and medical reasons; continued oppression as the

      patient will be viewed as a subversive element and

      potential spy because of his Cuban past; and unfavourable

      medical consequences as the patient will not, because of

      his low social status, receive even the elementary care and

      rehabilitation training which is necessary for improving

      his condition and the possible restoration of his health.

      I find that even very elementary and humanitarian and

      medical and also political reasons will be ignored if the

      patient is expelled to Ecuador."

      The Government dismissed his appeal on 18 October 1990 stating

that they found no reason to change the Board's assessment and that it

was obvious that the applicant should not be granted a residence

permit.

      On 28 December 1990 the applicant, who was now represented by Mr.

Franck, lodged a further application for a residence permit with the

Board, this time relying also on political and humanitarian grounds.

He also requested the Board to use its powers under the Aliens Act

(utlänningslagen) and stop the enforcement of his expulsion to Ecuador.

      In this application the applicant invoked, inter alia, the

following as regards the political grounds.

      The applicant's family had been politically engaged in the fight

against misery and oppression in Ecuador for a long time.  They were

all members of the "Partido Socialista Revolucionario Ecuadoriano".

In 1972 his eldest brother José Bazurto was killed together with a

person called Luis Salazar Jara while they were trying to organise the

farmers. One of his cousins was sentenced to the severest penalty

provided for by law, but he was freed after 7 years because of the

intervention of Amnesty International and was subsequently authorised

to take up domicile in Sweden.  Two elder brothers, Raúl and Ramón,

were convicted in their absence by a special military tribunal,

"Tribunal Especial", but managed to flee to Chile, via Peru, from where

they continued to lead clandestine operations during the years

1972-1975.

      In 1975 the highest body of the party decided that the situation

had become so dangerous that it would be better for the family to leave

the country for Cuba where its members would receive military training.

In February 1975 the applicant and his sister Judith went to Peru to

contact a representative of the Government of Cuba, Margarita

Gutierrez.  After she had discussed with them the security aspects of

their admission into Cuba, they could go back to Ecuador.  In August

1975, they received a message that they were welcome and on the 20th

of that month they left for Cuba, via Peru. All their travel expenses

were covered by the Cuban state.

      In Cuba they were again interrogated as to their political and

religious convictions and as to their academic studies.  After having

accepted to undergo military training with a view to future actions in

their respective home countries they were sent to "Instituto Pre-

Universitario" in Siboney, in the County of Havana where they received

their first military training.  After one year they were transferred

to a school called "República Popular del Congo" in Artemiza, also in

the County of Havana.  Here their military training was intensified.

They stayed at this school for two years.

      The applicant was thereafter given the opportunity of studying

medicine at "Instituto Superior de Ciencias Médicas" in Santiago de

Cuba.  During his studies military training was reduced to two hours

daily.  After he had taken his degree as military doctor he performed

certain services at a military regiment, "Camilo Cien Fuego".

      The applicant hereafter studied paediatrics.  During these

studies he continued his military training.

      After he had passed his examination as a paediatrician, he was

sent to a special department for assistance to liberation movements in

the third world, where he was assigned, in particular, to study the

behaviour of American soldiers.

      During his stay in Cuba the applicant married a Cuban doctor and

the couple had a child.  However, around 1986, when the child was one

year old the couple separated, formal divorce being impossible as both

were Catholics.

      In August 1989, as a result of his having finished his studies,

he was ordered to leave Cuba and to go back to Ecuador.

      When he arrived in his home country the applicant started to look

for work, but he met with blank refusals everywhere.  The military

authorities subjected him to a number of different interrogations, both

in Quito and in Guayaquíl. The authorities were very interested to know

what he had seen in Cuba. They threatened to make him disappear without

a trace if he did not cooperate with them, whereas he would receive the

best possible employments if he did.  As he refused, he was subjected

to harassment and threats of various kinds.  At the end the applicant

could not stand the situation any longer and suffered a circulation

disorder in the brain on 20 January 1990.

      On 5 March 1990, he left Ecuador for Sweden in order to reunite

with his mother and father and most of his brothers and sisters who

were staying there.

      With special regard to the humanitarian grounds, the applicant

invoked amongst other things a medical certificate dated 11 December

1990 and signed by Professor Hans Link and Mr. Åke Sidén, a chief

physician at Huddinge hospital. According to the certificate the

applicant is still suffering from the effects of the previous

circulation disorder in the brain. His right arm and leg are partly

paralysed and so is, although to a lesser extent, the right side of his

face. As regards the applicant's situation in Ecuador, if returned

there, the certificate reiterated the conclusions reached by Professor

Link in his certificate of 8 June 1990.

      On 7 January 1991, the Board rejected the application.  The

grounds for its decision read:

      "Political grounds have been invoked in this case.  The

      political grounds invoked do not give a right to asylum.

      A medical certificate from Huddinge hospital has been

      filed.  Special reasons of a humanitarian character are not

      present.

      The reasons concerning family ties have been examined

      earlier in the expulsion case and have not been found to be

      sufficient.

      The application shall accordingly be rejected.

      ...

      This decision cannot be appealed."

      The following information was supplied by the applicant to the

Commission by letter of 3 May 1991.  His state of health, both physical

and mental, has worsened rather than improved while he has been waiting

for the enforcement of the expulsion decision due to a lack of adequate

treatment; he has difficulties with his speech; he cannot move about

without the assistance of another person and he needs to have his

family around him; he is depressed but cannot contact a doctor because

of the expulsion decision.  He has no possibilities to receive adequate

treatment in Ecuador: the specialist treatment he requires is far too

expensive and available help in acute situations insufficient as it

does not provide the continuous follow-up which his condition requires.

What is most important for his recovery is the social and human care

which he receives from his family in Sweden. Such care would be

impossible in Ecuador as he no longer has any relatives there.  No

special measures seem to have been taken by the Swedish authorities to

facilitate his return there.

      The applicant has indicated that deportation may take place at

any time.

The situation in Ecuador

      Ecuador is a country populated by some 10 million people. Its

present democratic constitution came into force on 10 August 1979 after

a 9 year period of civil and military dictatorship. The new

constitution has been modelled on that of the United States of America.

The Congress is since 1988 dominated by the "Isquierda Democrática",

which could be described as a liberal social democratic party.

      The general situation of the country has been described by the

Swedish Government as follows:

      As a result of an expanding oil export industry, Ecuador's GNP

per capita has increased considerably during recent years. Although

unemployment rates are uncertain, unemployment or underemployment seem

to affect a large proportion of the population. Average life expectancy

is now exceeding 65 years of age. The ratio of doctors is approximately

one to 870 persons. A social security system exists, but there may be

some doubt as to its efficiency. Although there still are problems -

e.g. with respect to Indians, the conditions in prisons and ill-

treatment, especially in the countryside - the human rights situation

in Ecuador has improved considerably in recent years.

Immigration to Sweden

      The Swedish Government have submitted the following information

as regards immigration to Sweden, in particular with regard to that

from Ecuador:

      During the period from July 1990 to June 1991 about 24,000 aliens

applied for a residence permit in Sweden. In 1990, 31 Ecuadorians

requested a residence permit in Sweden.

      In 1990 the immigration authorities dealt with twenty cases

concerning persons from Ecuador. Seventeen of them did not succeed in

obtaining residence permits in Sweden. The rejection rate during 1990

with regard to presumptive immigrants from Ecuador was thus

85 per cent. As a comparison, the rejection rates with regard to

Colombia, El Salvador and Peru were 23, 21 and 49 per cent,

respectively, during 1990.

COMPLAINTS

1.    The applicant complains that his expulsion to Ecuador would

constitute a violation of Article 3 of the Convention in that he would

be exposed to treatment contrary to this provision on account of his

political background, his state of health and his family conditions.

2.    He also claims that the expulsion decision violates Articles 6

as he could not challenge it before a court.

3.    He finally maintains that he did not have an effective remedy

before a national authority in respect of his complaints under the

Convention.

PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced on 4 April 1991. On 12 April 1991

the Commission rejected a request from the applicant for assistance

under Rule 36 of the Commission's Rules of Procedure in order to

prevent his expulsion to Ecuador. The application was registered on

28 May 1991.

      On 7 June 1991 the Commission decided to give notice of the

application to the respondent Government and to invite them to submit

observations in writing on the admissibility and merits of the

application.

      On 14 October 1991 the Government submitted their observations

to which the applicant replied on 16 December 1991.

THE LAW

1.    The applicant complains that his expulsion to Ecuador would be

contrary to Article 3 (Art. 3) of the Convention in that he would be

exposed to treatment contrary to this provision on account of his

political background, his state of health and his family conditions.

Article 3  (Art. 3) reads:

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

      treatment or punishment."

      The Government question whether the applicant has exhausted

domestic remedies in the manner required by Article 26 (Art. 26) of the

Convention. They emphasise that a new application for a residence

permit may at any time be lodged with the Board which will be under a

duty to examine the application in order to ascertain if such a permit

should be granted on account of new circumstances. They state that, in

view of this, it could be argued that domestic remedies cannot be

exhausted until the applicant has actually been expelled from Sweden.

      The Commission is not convinced of this reasoning. Under Article

26 (Art. 26) an applicant must only exhaust remedies which are

apparently effective and sufficient (see, inter alia, No. 9697/82,

Dec. 7.10.83, D.R. 34 p. 131). A new application for a residence permit

could only be considered an effective remedy if the applicant alleged

the existence of new relevant circumstances. In the present case, the

applicant has not invoked any new circumstances before the Commission

but only reiterated and developed the arguments which he submitted to

the Board already in the application dated 28 December 1990.

Furthermore, the Government have not provided any information to the

effect that the practice of the Board in cases such as the present has

changed in the meantime. Accordingly, a further request to the Board

reiterating the same arguments as those contained in the earlier

application cannot be considered as an effective remedy within the

meaning of Article 26 (Art. 26) of the Convention. In addition, it is

constant case-law that 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 the Convention even before the actual expulsion,

e.g. if the measure might expose him to a serious risk of treatment

contrary to Article 3 (Art. 3) of the Convention in the country to

which he is to be returned (see, inter alia, No. 10479/83, Dec.

12.3.84, D.R. 37 p. 158; Eur. Court of H.R., Vilvarajah and Others

judgment of 30 October 1991, Series A No. 215, p. 34, para. 103).

      The Commission accordingly concludes that the applicant can claim

to be a victim of the alleged violation of Article 3 (Art. 3) of the

Convention although he has not been expelled to Ecuador. It also finds

that he has exhausted domestic remedies in the manner prescribed by

Article 26 (Art. 26) of the Convention.

      As regards the seriousness of the risk of treatment contrary to

Article 3 (Art. 3) the applicant has stressed the following: first,

that he is perceived as a potential enemy of the Ecuadorian Government

as a result of his military training in Cuba and his family's political

involvement in Ecuador; secondly, that he would not be able to take

care of himself in Ecuador because of the paralysis which has affected

his right side and which makes it difficult for him to move without

assistance and to talk; finally, as he no longer has any relatives in

Ecuador he cannot depend on his family for the treatment and care which

his physical condition requires. He maintains that, in view of his

political background and family situation, he faces a serious risk of

not receiving necessary care and assistance if returned to Ecuador. As

most of his family live in Sweden it is in this country that he would

have the best possibilities to deal with his handicaps.

       With regard to the political reasons invoked, the Government

stress that the applicant has never applied for political asylum in

Sweden. Considering what the Government know about the situation in

Ecuador, they find it highly unlikely that the applicant would be

subject to any harassment there today, even assuming that his story as

regards his background is true - something which is not proved. As

regards the humanitarian grounds invoked, the Government maintain that

Article 3 (Art. 3) of the Convention should be interpreted

restrictively and that the Article cannot oblige the State concerned

to grant a residence permit to any person within its jurisdiction who

needs medical treatment or who finds it easier to support him- or

herself financially there. They also observe that the assessments of

the social, economic and political situation in Ecuador made in the

medical certificates submitted by the applicant are presumably based

mainly on the applicant's own account of the situation in the country.

They finally note that the applicant was able to travel by himself from

Ecuador to Sweden and his state of health does not appear to have

worsened after this journey. If he were to require assistance during

the return journey such assistance would be provided by the Swedish

authorities. Taking into account that the Convention contains no rights

to health or medical care of a certain standard, nor any right to

gainful employment, they do not find it established that his physical

condition prevents his undertaking the home voyage or could cause him

such economic or social hardships in Ecuador, which is a democratic

country with an existing health care and social security system and a

developing economy, that his expulsion would amount to a violation of

Article 3 (Art. 3).

      The Government maintain that the fact that most of the

applicant's relatives reside in Sweden does not alter the above

conclusion. The applicant is 36 years old and has founded a family of

his own, although his wife and child are still in Cuba. Judging from

the information supplied by the applicant after his arrival in Sweden,

his intention seems to have been to resume family life as soon as his

wife finished her education in Cuba.

      The applicant has questioned whether Ecuador could really be

called a democracy and whether the health care and social security

system there is sufficiently developed, inter alia as regards the

number of doctors. He has also stressed that he was only able to travel

from Ecuador to Sweden as a result of the help he received from a niece

and from the airline personnel; he could never have undertaken the

travel without assistance. He has also replied that it was only on

account of a mistake due to his speech problems that his first

application for a residence permit was interpreted as invoking merely

family reasons.

      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 contained in the Convention or its

Protocols (see, inter alia, the above mentioned Vilvarajah and Others

judgment, p. 34, para. 102). However, whereas the expulsion of a an

alien may give rise to an issue under Article 3 (Art. 3), and hence

engage the responsibility of that State under the Convention, where

substantial grounds have been shown for believing that the person

concerned faces a real risk of being subjected to torture of to inhuman

or degrading treatment or punishment in the country to which he is

returned, a mere possibility of ill-treatment is not in itself

sufficient in this context (ibid. pp. 34 and 36, paras. 103 and 107).

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. 37,

para. 111).

      The Commission has examined the applicant's allegation of

possible ill-treatment if returned to Ecuador in the light of the above

case-law. The Commission accepts that the applicant's return to Ecuador

could involve considerable hardships. However, in the circumstances of

the case it does not find that there are substantial grounds for

believing that he is faced with a real risk of being subjected to

treatment contrary to Article 3 (Art. 3) if returned to that country.

In reaching its decision the Commission has in particular considered

that neither the applicant's own nor his family's political background

can today, in the light of the present situation in Ecuador, warrant

the conclusion that the applicant would be subjected to harassment or

excluded from existing medical care or social benefits in Ecuador in

a manner which would amount to inhuman or degrading treatment. In this

context it has also noted that the Swedish authorities would provide

the applicant with the assistance required to enable him to undertake

the long journey back in safe conditions.

      The Commission accordingly concludes that the applicant's

complaint under Article 3 (Art. 3) of the Convention has to be rejected

as being manifestly ill-founded in accordance with Article 27 para. 2

(Art. 27-2) of the Convention.

      As regards the applicant's reliance on his relations with his

mother and father and brothers and sisters in Sweden, the Commission

observes the following. Considering its conclusion above and the fact

that the applicant has founded a family of his own - even if he seems

to have separated from his wife, who appears presently to be in Cuba

with their child - his relationship with his family in Sweden cannot,

for the purposes of the Convention and, in particular Articles 3 and

8 (Art. 3, 8), be said to extend to more than ordinary emotional ties.

Taking into account the important considerations relating to the proper

enforcement of immigration controls the Commission cannot find that the

existence of these ties could have as effect that his expulsion from

Sweden would amount to a violation of the Convention (cf., inter alia,

No. 12122/86, Dec. 16.10.86, D.R. 50 p. 268).

      It follows that this aspect of his complaint must also be

rejected as being manifestly ill-founded within the meaning of

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

2.    The applicant also complains about the absence of any court

review of the expulsion decision and alleges a violation of Article 6

(Art. 6) of the Convention.

      The Commission recalls, however, that according to established

case-law, Article 6 (Art. 6) does not apply to the procedure for

expulsion of an alien (see, inter alia, No. 8118/77, Dec. 19.3.81, D.R.

25 p. 105).

      This complaint is therefore incompatible, ratione materiae, with

the provisions of the Convention and must be rejected according to

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

3.    The applicant finally alleges a violation of Article 13 (Art. 13)

of the Convention in that he claims not to have had any effective

remedy before a national authority in respect of the decision to expel

him to Ecuador.

      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 of 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).

      The Commission recalls that it has rejected the applicant's

complaints as manifestly ill-founded on the ground that it has not

found either that there are substantial grounds for believing that he

is faced with a real risk of being subjected to treatment contrary to

Article 3 (Art. 3) of the Convention if returned to Ecuador or that his

family ties with relatives in Sweden are such that his expulsion would

amount to a violation of the Convention. Against this background the

Commission does not consider that the applicant's complaints can be

described as "arguable" 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.

      For these reasons, the Commission by a majority

      DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission               President of the Commission

      (H.C. KRÜGER)                               (C.A. NØRGAARD)