Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 18288/91

by M.L. and A.S.

against Sweden

The European Commission of Human Rights (Second Chamber) sitting

in private on 13 May 1992, the following members being present:

MM. S. TRECHSEL, President of the Second Chamber

G. JÖRUNDSSON

A. WEITZEL

J.-C. SOYER

H. G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

MM. F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

Mr. K. ROGGE, Secretary to the Second Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 28 September 1990

by M.L. and A.S. against Sweden and registered on 30 May 1991 under

file No. 18288/91;

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

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The first applicant is a Finnish citizen born in 1968 and

resident at Örebro, Sweden. She is a children's nurse by profession.

The second applicant is a stateless Palestinian born in 1961 and

currently living in a refugee camp in Lebanon.

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

summarised as follows.

The second applicant came to Sweden in October 1985 without a

residence permit. He subsequently requested refugee status,

alternatively a residence and work permit in Sweden, referring to the

risk of being politically persecuted if expelled to Lebanon.

On 17 March 1986 the National Immigration Board (statens

invandrarverk) rejected the request, considering that he could not be

considered a refugee under Section 3 of the 1980 Aliens Act

(utlänningslagen) or under the UN Convention Relating to the Status of

Refugees. No further particular reasons enabling him to stay in Sweden

were found. He was expelled from Sweden and prohibited from returning

before 1 April 1988.

In April 1986 he appealed to the Government, submitting inter

alia that in Lebanon he had been the principal witness of the murder

of M.K. and that, having described the perpetrators, he had been forced

to interrupt his studies and leave Lebanon. By that time he had already

received threats that he would be killed if he exposed the murderers.

Subsequently, when it became clear that he had described the

perpetrators, he had been captured allegedly for questioning and

execution. He further referred to two articles regarding the murder in

the PLO newspaper Palestine Al-Thawra of November and December 1985.

He alleged that he knew that the perpetrators were Syrian agents and

that he was being sought by these and their sympathisers. He further

referred to the critical situation of the stateless Palestinians in

Lebanon loyal to the PLO, alleging that they were being persecuted by

inter alia Syrian security police, pro-Syrian Palestinian factions and

involved in fights with Israeli troops. He finally referred to his

refugee status as granted to him by UNRWA.

On 18 June 1989 the applicants were engaged to be married. Prior

to that date they had started living together.

On 21 December 1989 the Government (Ministry of Labour) rejected

the second applicant's appeal. The Government found that he could not

be considered a refugee or otherwise be eligible for asylum in Sweden.

The Government took into account inter alia a confidential opinion of

the National Police Board (rikspolisstyrelsen) of 16 December 1986. The

Government further considered that, although he had requested asylum

prior to 1 January 1988, there were special reasons not to allow him

to remain in Sweden. Moreover, there were no other reasons for which

he should be allowed to stay there.

In March 1990 he again requested refugee status, alternatively

a residence permit, stating that he had already stayed in Sweden for

a considerable length of time and that he was engaged to the first

applicant. He furthermore referred to a statement by the Refugee

Services of the Swedish Red Cross according to which the interests of

national security had to be weighed against his need of protection. The

Red Cross further questioned the accuracy of the opinion of the

National Police Board, having regard inter alia to the fact that it

dated from December 1986.

On 29 March 1990 the National Immigration Board rejected the

request, as it was based on facts which had already been taken into

account by the Government in their decision of 21 December 1989. No

appeal lay against this decision.

A further request was lodged on 10 April 1990 by the Swedish

section of Amnesty International, submitting inter alia:

(translation from Swedish)

"... AI confirms that Palestinians arrested in Lebanon also

have included persons with no PLO connections. A mere

suspicion that someone is sympathising with Yassir Arafat

has been enough to warrant an arrest. These persons have

been arrested in Lebanon by Syrian troops or factions

cooperating with such troops. They are being detained for

an indefinite period of time without being charged or

tried, and they are being tortured. In view of this,

Palestinians such as [the second applicant], [who are]

political or military activists within the PLO, run an even

greater risk of being subjected to encroachments of the

above kind.

...

[I]n the light of [the second applicant's] alleged

connections with PLO/Fatah AI considers his fear of

persecution in case of a deportation to Lebanon to be well-

founded. Should he be deported to Lebanon he would risk

being detained immediately and indefinitely as well as

being tortured.

...

[AI] cannot [therefore] share the opinion of the National

Immigration Board and the Government that [the second

applicant] can be deported to Lebanon without risking

persecution."

On 20 April 1990 the National Immigration Board rejected the

request on the grounds mentioned in its decision of 29 March 1990. No

appeal lay against this decision.

On 22 May 1990 the second applicant was deported to Lebanon,

where he was allegedly detained for three days and assaulted. The

applicants have submitted a medical report of 7 June 1990 from the

Palestine Red Crescent Society, which reads as follows:

(translation from Arabic)

"We, staff members of the hospital, certify that [the

second applicant] ... has been at the El Hamfari hospital

on 25 May 1990. He was in a very bad condition due to a

number of beatings and after examination we could establish

that he had swellings under his feet and a strong pain in

his back. Due to this he was admitted to the hospital for

eleven days and discharged on 4 June 1990. This medical

certificate is issued at his own request."

In July 1990 the second applicant, referring to the above medical

report, lodged a further request for a residence and work permit in

Sweden. This was rejected on 21 August 1990.

On 6 September 1990 the Government dismissed a request for an

annulment of the deportation order, as under Chapter 7, Section 1,

para. 2 of the Aliens Act the Government lacked competence to deal with

the matter.

In an undated letter of 1992 addressed to the Commission the

second applicant states as follows:

(translation from Swedish)

"I am a stateless Palestinian ... . I want you to know that

the present situation in Lebanon is very difficult and very

bad and [that] the risk of dying is great. For instance, on

17 February the Israeli air force bombed my area in the Ein

el Helweh refugee camp in southern Lebanon and many

civilians died and this event can be [repeated] at any

time.

Another difficulty is the risk of being murdered. Many

groups don't like the Arafat policy - "the peace process" -

and Arafat opponents murdered many Palestinians. "It could

be me", so I feel no safety or security at all. Another

problem is the Lebanese Army and the Syrian Army which

limit our freedom of movement and if we go outside our

refugee camp the risk is great to be kidnapped and then

tortured and murdered just because I [belong to] the Arafat

group."

The applicants have submitted a copy of a report on stateless

Palestinians by the Asylum Department of the Danish Refugee Aid (Dansk

Flygtningehjælp; hereinafter "DF") of 9 August 1990 drawn up following

a mission to Cyprus and Syria in the beginning of 1990 and based on

discussions with representatives of international organisations, staff

members of embassies, journalists, other international observers as

well as its own sources. The report states inter alia:

(translation from Danish)

"...[T]he camp of Ein el-Hilweh consists of 33.253

inhabitants and is the biggest camp in Lebanon.

...

After the troops loyal to Arafat had, in the summer of

1988, been banished by pro-Syrian radical factions from the

camps in Beirut, the camps of ... and Ein el-Hilweh are the

most important haunts and power centres of the moderate PLO

troops. "Fatah" is the dominant faction in both camps and

has it headquarters in Ein el-Hilweh ... Notwithstanding

air and artillery bombings by Israeli forces the two camps

are in a relatively good condition, due to PLO support.

..."

A further report of 13 September 1991 drawn up following a

further mission to Cyprus and Syria and based on DF's traditional

sources considered the danger to the Palestinian minority in Lebanon

to be greater than ever since 1982. It continued inter alia:

(translation from Danish)

"... It must be emphasised that the stabilisation, which

has taken place in the country in connection with the

disarmament of the militias, cannot be seen as an

improvement in the safety of the Palestinians, which

are/seem to be in the spotlight of the Syrians...

...

Therefore, there are substantial grounds for emphasising

the conclusion in DF's reports of 9 August 1990 and 24 June

1991: Palestinians known to be or possibly only suspected

of being active within "Fatah" but also within other

factions loyal to Arafat run a great risk of facing serious

problems upon [their] return to Lebanon. ..."

The applicants have submitted statements of four persons who

certify that the applicants were living together at the time of the

second applicant's deportation.

COMPLAINTS

The applicants complain that the second applicant was and is

being refused a residence permit in Sweden because of his Palestinian

origin. They submit that they are engaged to be married; that before

their engagement they had already been living together; and that their

private and family life was violated because of the second applicant's

deportation. They further submit that, as the National Police Board

considered the second applicant a national security risk he should have

been allowed the guarantees provided under Article 6 of the Convention

for a person charged with a criminal offence.

The applicants invoke Articles 3, 5, 6, 8 and 14 of the

Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 28 September 1990 and

registered on 30 May 1991.

On 9 December 1991 the Rapporteur, in accordance with Rule 47

para. 2 (a) of the Commission's Rules of Procedure, requested further

information from the applicants. The information was submitted on

17 March 1992.

THE LAW

(a) The Commission has first considered the complaint under Article 3

(Art. 3) of the Convention as lodged on behalf of the second applicant.

Article 3 (Art. 3) of the Convention reads:

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

degrading treatment or punishment."

Article 26 (Art. 26) of the Convention provides that the

Commission "may only deal with the matter ... within a period of six

months from the date on which the final decision was taken". In the

present case the second applicant's appeal against the National

Immigration Board's decision of 1986 was rejected on 21 December 1989,

whereas the application to the Commission was introduced on 28

September 1990, that is more than six months after the date of that

decision.

Subsequently, the second applicant, invoking new grounds, again

requested refugee status or alternatively a residence permit. The

decision upon the first of those requests was made on 29 March 1990,

that is less than six months before the application was introduced.

However, even assuming that the second applicant has complied

with the six month rule this complaint is manifestly ill-founded for

the following reasons.

The Commission recalls that Contracting States have the right to

control the entry, residence and expulsion of aliens. The right to

political asylum is not protected in either the Convention or its

Protocols (Eur. Court H.R., Vilvarajah and Others judgment of

30 October 1991, para. 102, to be published in Series A no. 215).

However, expulsion by a Contracting State of an asylum seeker 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 faced

a real risk of being subjected to torture or to inhuman or degrading

treatment or punishment in the country to which he was expelled (ibid.,

para. 103).

The Commission's assessment of the risk of ill-treatment to which

an applicant may be exposed must be made in the light of all the

material placed before it. The assessment must be a rigorous one in

view of the absolute character of Article 3 (Art. 3) of the Convention

(ibid. paras. 107-108). The existence of the risk must be assessed

primarily with reference to those facts which were known or ought to

have been known to the Contracting State at the time of the expulsion.

Regard may, however, also be had to information which comes to light

subsequent to the expulsion, as such information may be of value in

confirming or refuting the appreciation made by the Contracting State

or the well-foundedness or otherwise of an applicant's fears (Eur.

Court H.R., Cruz Varas and Others judgment of 20 March 1991, Series A

no. 201, p. 30, para. 76).

In the present case, the Commission finds no indication that the

information available to the Government at the time of the second

applicant's deportation showed that he, upon his return to Lebanon,

would run a substantial risk of being exposed to treatment contrary to

Article 3 (Art. 3) of the Convention. The Commission notes, in

particular, the second applicant's appeal to the Government of April

1986 in which he referred to, inter alia, death threats as a reason for

leaving Lebanon. In the appeal he claimed to have been captured for

"questioning and execution" because of his description of the alleged

murderers of M.K. However, he did not identify the alleged perpetrators

or the reason for his release. The same is true as regards the alleged

assault which took place following his return to Lebanon. Thus, the

information regarding the second applicant's treatment upon his return

to Lebanon is not such as to refute the appreciation made by the

Government.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

(b) The Commission has next considered the complaint under Article 8

(Art. 8) of the Convention, which reads:

"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 Commission first observes that neither of the applicants is

a Swedish citizen. In the light of the Nordic Convention on the

Abolition of Passport Controls at the Boundaries between the Nordic

Countries (överenskommelsen om upphävande av passkontrollen vid de

internordiska gränserna) as well as the Nordic Convention on a Common

Labour Market (överenskommelsen om en gemensam nordisk arbetsmarknad)

the first applicant must, however, be considered to be lawfully and

permanently resident in Sweden (cf. Eur. Court H.R., Abdulaziz, Cabales

and Balkandali judgment of 28 May 1985, Series A no. 94, pp. 31-32,

para. 60).

Assuming that the refusal to grant the second applicant a

residence permit in Sweden amounts to an interference with the

applicants' rights under Article 8 (Art. 8) of the Convention it must

be examined whether the interference was justified under the terms of

para. 2 of that provision. In order to be justified under Article 8

(Art. 8) an interference must satisfy three conditions: it must be "in

accordance with the law", it must pursue one or more of the aims

enumerated in para. 2 and it must be necessary in a democratic society

for that aim or those aims (Eur. Court H.R., Beldjoudi judgment of 26

March 1992, para. 68, to be published in Series A no. 234-A).

There is no indication that the refusal was unlawful, nor that

it did not pursue one or more of the aims under para. 2 of

Article 8 (Art. 8-2).

As regards the question whether the interference was "necessary

in a democratic society" the Commission recalls that it is for the

Contracting States to maintain public order, in particular by

exercising their right, as a matter of well-established international

law and subject to their treaty obligations, to control the entry and

residence of aliens. However, their decisions in the field must, in so

far as they may interfere with a right protected under para. 1 of

Article 8 (Art. 8), be necessary in a democratic society, i.e. be

justified by a pressing social need and, in particular, be

proportionate to the legitimate aim pursued (the above-mentioned

Beldjoudi judgment, para. 74). Regard should further be had to the

margin of appreciation allowed to Contracting States (e.g. Eur. Court

H.R., Berrehab judgment of 21 June 1988, Series A no. 138, pp. 15-16,

para. 28).

In the present case the Commission observes, in particular, that

the applicants' cohabitation appears to have commenced some time after

the National Immigration Board's expulsion order of March 1986, that

is, at a time when it was highly unlikely that the second applicant

would be allowed to stay in Sweden. The same is true as regards their

engagement.

In the circumstances of the case the Government's interest in

controlling immigration to the country must be considered to outweigh

the applicants' interest in establishing family life there. The refusal

must, therefore, be considered to fall within the State's margin of

appreciation and thus be necessary in a democratic society for one or

more of the aims enumerated in Article 8 para. 2 (Art. 8-2).

It follows that this part of the application is also manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

(c) The Commission has finally considered the complaints under

Articles 5, 6 and 14 (Art. 5, 6, 14) of the Convention as lodged on

behalf of the second applicant. It finds, however, that these do not

disclose any appearance of a violation of the provisions invoked.

It follows that this part of the application is also manifestly

ill-founded within the meaning of 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 Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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L. AND S. v. SWEDEN

L. AND S. v. SWEDEN

LEXI