CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 5 juillet 1994

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 23211/94                       by T. A.                       against Sweden         The European Commission of Human Rights (Second Chamber) sitting in private on 5 July 1994, the following members being present:              MM.    S. TRECHSEL, President                  H. DANELIUS                  G. JÖRUNDSSON                  J.-C. SOYER                  H.G. SCHERMERS            Mrs.   G.H. THUNE            MM.    F. MARTINEZ                  L. LOUCAIDES                  J.-C. GEUS                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY              Mr.    K. ROGGE, Secretary to the 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 27 August 1993 by T.A. against Sweden and registered on 10 January 1994 under file No. 23211/94;         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 facts of the case, as submitted by the applicant, may be summarised as follows.         The applicant is an Ethiopian citizen, born in 1970 in Addis Ababa, Ethiopia. Presently he is in hiding somewhere in Sweden.         The applicant grew up in Ethiopia together with his family. His father, a civil servant in the Ministry of Defence, was allegedly arrested in 1978 on suspicion of political activity in the Ethiopian People's Revolution Party (EPRP). Furthermore, a brother and a sister have allegedly been in hiding since 1981 as they apparently were also politically active against the government.         In 1985 the applicant married and he has a daughter, born in 1988. After having accomplished his secondary education in 1986 he was first employed in a building company and later worked for his mother who owns a pharmacy.         The applicant submits that he and a brother were "recruited" to the Ethiopian People's Democratic Movement (EPDM) in 1986 through some previous colleagues of their father. The aim of EPDM was to introduce democracy in Ethiopia and they conducted a guerilla war in the bush against the Ethiopian army.         The applicant and his brother hereafter belonged to a group of eight persons. Their activities consisted mainly of sending medicine to the EPDM guerillas. It was usually their mother who provided the medicine. Furthermore, they   participated in the distribution of leaflets from EPDM at the University of Addis Ababa. In the leaflets EPDM criticised the lack of democracy in Ethiopia and promised to establish a democracy. Finally, it happened that the applicant acted as a messenger by carrying sealed envelopes from one group member to another. The applicant paid 50 birr per month for the membership.         In 1989 the applicant's wife allegedly left him and returned to her parents together with their daughter.         In October 1989 the leader of the applicant's group was arrested and he allegedly disclosed the names of all the members to the police. Therefore, the applicant and his brother went into hiding outside Addis Ababa. The police searched for them in Addis Ababa but their mother concealed their hiding place and she also provided them with new passports. It appears that she had to pay a certain amount as a bribe but otherwise the passports were officially certified and valid. On 25 December 1989 the applicant flew out of Ethiopia without any problems.   After a stopover in Athens he went to Warsaw. There he met a person who, against the payment of 450 U.S. dollars, provided him with a false visa for Sweden and helped him board a ferry. The applicant arrived in Sweden on 28 December 1989 and applied for asylum on 3 January 1990.         On 24 February 1990 he was joined by his brother who also applied for asylum.         In their applications for asylum and their subsequent correspondence they submitted, in addition to the above mentioned facts, that their mother and the brother's girlfriend had been arrested by the police in May 1990. Furthermore, they stated that it was impossible for them to return to Ethiopia as they feared being sentenced to death due to their membership of EPDM and the fact that they had left the country on passports which the mother had "bought".         On 14 December 1990 the National Immigration Board (Statens Invandrarverk, the "SIV") rejected the applicant's and his brother's requests for asylum and their expulsion was ordered.         The SIV found that the statements of the applicant and his brother were not trustworthy and secondly, it considered that the evidence, as submitted, did not substantiate that the requirements for obtaining refugee status in accordance with the Aliens Act (utlänningslagen) were fulfilled. In that respect the SIV stated that although it did not question that the applicant and his brother had been politically active, their activities had not been sufficient to draw any real attention from the Ethiopian authorities. Especially the fact that the applicant and his brother were able to leave Ethiopia without any particular problems, showed that they could not have had serious political problems with the authorities before they left the country.            The applicant appealed against the decision to the Aliens Appeals Board (Utlänningsnämnden). The Board found that the applicant could not be considered a refugee within the meaning of the Aliens Act and found no other reasons upon which he ought to be granted a right to remain in Sweden. The Board furthermore noted that the applicant had special connections to Ethiopia as his wife and child were living there. Accordingly, the Board rejected the appeal on 18 March 1992.         The applicant's subsequent requests to the SIV for a residence permit on humanitarian grounds were rejected on 2 April and 4 May 1992.         The applicant then turned to the Supreme Administrative Court (regeringsrätten) and requested that his application for asylum be considered as the Aliens Appeals Board, in their decision of 18 March 1992, had erred in emphasising the fact that he had a wife and a child in Ethiopia. He submitted that according to Ethiopian law a marriage was automatically dissolved if the couple lived separately for at least a year. Hence he was to be considered as divorced. The Supreme Administrative Court, however, came to the conclusion that the Aliens Appeals Board's decision was correct as the information available at that time indicated that the applicant's marriage was in force. Consequently, the Supreme Administrative Court rejected the request on 23 July 1992.         The applicant lodged a new application for a residence permit on humanitarian grounds on 29 March 1993 and submitted, inter alia, a judgment of 20 September 1992 from Ethiopia allegedly indicating that he was divorced, that he belonged to the ethnic group Amhara, which is being held responsible for all the calamities of the country by the present regime in Ethiopia, that his mother had again been interrogated by the local police about his political activities and that he now, after the fall of the Mengistu regime in 1991, is politically active against the transitional government. Finally, he submitted that he had been admitted to a hospital due to attempted suicide, allegedly caused by his fear of being expelled to Ethiopia. He was discharged from the hospital on 19 March 1993.         The SIV found that the only new information to be examined was the applicant's mental problems. However, these were not considered to be of such importance that the applicant should receive a residence permit under the Aliens Act. Accordingly, the request was rejected on 30 March 1993.   COMPLAINTS         The applicant complains of the fact that the Swedish authorities have ordered his expulsion and maintains that he risks torture or other harassment in Ethiopia. He also complains that the Aliens Appeals Board's decision of 18 March 1992 is incorrect as it was based on a misunderstanding concerning his marital status. The applicant does not invoke any provisions in the Convention.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 27 August 1993. By letter of 26 October 1993 the applicant requested the Commission to stay his deportation until his application had been examined. On 5 November 1993 the President of the Commission decided not to indicate to the Government of Sweden, pursuant to Rule 36 of the Commission's Rules of Procedure, the measure suggested by the applicant. The application was registered on 10 January 1994.   THE LAW   1.     The applicant complains that, if expelled to Ethiopia, he risks being tortured or otherwise ill-treated. The Commission has considered this complaint under Article 3 (Art. 3) of the Convention, which reads as follows:         "No one shall be subjected to torture or to inhuman or degrading       treatment or punishment."         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, Series A no. 215, p. 34, para. 102). However, expulsion by a Contracting State of an asylum seeker may give rise to an issue under Article 3 (Art. 3) of the Convention, and hence engage the responsibility of the State under the Convention, where substantial grounds have been shown for believing that the person concerned would 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 expelled (ibid., p. 34, para. 103). A mere possibility of ill-treatment is not in itself sufficient (ibid., p. 37, para. 111).         In the present case, as submitted by the applicant, the Commission finds no substantiation as regards the allegations of torture, persecution or harassment of the applicant upon his return to Ethiopia and his complaints in this respect thus disclose no appearance of a violation of Article 3 (Art. 3) of the Convention. Moreover, the Commission recalls from its previous case-law that Chapter 8, Section 1 of the Aliens Act imposes an absolute obligation on the enforcement authority in Sweden to refrain from expelling an alien should the human rights situation in the receiving country constitute a firm reason to believe that he, or she, would be in danger of being subjected to capital or corporal punishment, or torture, in that country (cf. for example No. 22325/93, Dec. 8.9.93, unpublished).         In view of the above, the Commission finds no substantiation of the applicant's claims that he would be exposed to a real risk of being subjected to treatment contrary to Article 3 (Art. 3) of the Convention on his return to Ethiopia.         It follows that this part of the application must be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 2-2) of the Convention.   2.     The applicant also complains that the decisions of the Swedish authorities concerning his requests for asylum were not justified and, in particular, he complains that the decision of the Aliens Appeals Board of 18 March 1992 was incorrect.         The Commission has considered these issues under Article 6 (Art. 6) of the Convention and Article 1 of Protocol No. 7 (P7-1) to the Convention. However, the Commission has constantly held that the procedure followed by public authorities to determine whether an alien should be allowed to stay in a country, or should be expelled, does not involve the determination of civil rights and obligations within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention (cf., for example, No. 13162/87, Dec. 9.11.87, D.R. 54 p. 211). Furthermore, under Article 1 of Protocol No. 7 (P7-1), the Commission recalls that the applicant entered Sweden illegally, using a false visa. In such circumstances the Commission finds that he was not an alien lawfully resident in the territory of Sweden within the meaning of this provision (cf. No. 19373/92, Dec. 13.1.92, to be published in D.R. 74).         Accordingly, this part of the application must be rejected as being incompatible ratione materiae with the provisions of the Convention, pursuant to Article 27 para. 2 (Art. 27-2).         For these reasons, the Commission, unanimously,           DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the Second Chamber        President of the Second Chamber            (K. ROGGE)                             (S. TRECHSEL)