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. 23521/94                       by Aleksander MILIC, Snezana MILIC                          and Marija MILIC                       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 11 December 1993 by Aleksander MILIC, Snezana MILIC and Marija MILIC against Sweden and registered on 22 February 1994 under file No. 23521/94;         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 applicants, may be summarised as follows.         The applicants are husband and wife and their daughter. They are of Serbian origin and citizens of the Federal Republic of Yugoslavia. The husband was born in 1962, his wife in 1965 and their daughter in 1986. Before the Commission they are represented by their lawyer, Mr. Leif Rydberg.         The first applicant performed his military service in the former Yugoslav army from October 1982 to September 1983. As from 1986 he was employed at a factory in Smed Palanka, Serbia, where also his wife was employed. On 16 September 1991 he was called to participate in a military manoeuvre close to the Bosnian border, lasting until 21 September 1991. The soldiers feared that they were to be transferred to the front and they managed to negotiate a leave on the condition that they would be ready for a possible mobilisation of the army. In order to avoid such mobilisation the first applicant left for Sweden on 29 September 1991. He arrived there on 1 October 1991. About 10 days later the military authorities came to his house in order to hand over a call-up order addressed to him. However, his wife refused to sign in her husband's name and the authorities left again with the order. The wife also began to feel insecure as she was allegedly being harassed by colleagues, her employer, friends and neighbours due to her husband's flight. She therefore decided to leave the country with her daughter and arrived in Sweden on 20 November 1991.         In support of their applications for asylum in Sweden the applicants submitted in particular that the first applicant would be subject to a severe punishment, maybe even execution, for desertion. He also feared being sent to the front. Moreover, the first and second applicants referred to the fact that they had both been dismissed from their jobs.         On 9 March 1993 the National Immigration Board (statens indvandrarverk, "SIV") rejected the applications and ordered the applicants' expulsion. The SIV found it established that the first applicant did not run a risk of being punished upon return to Yugoslavia. Neither would he run a risk of being sent to an area suffering from armed conflict. The SIV furthermore found that the first and second applicants had lost their jobs due to the fact that they had left the country and not because of political persecution or harassment.         The applicants' appeal against this decision was rejected by the Aliens Appeals Board (utlänningsnämnden) on 16 November 1993. In its decision the Board stated:   (translation)         "(The first applicant) has left his country in order to avoid       being called up for military service. According to what is known       to the Board the sanction (the first applicant) risks for his       failure to appear for military service is not such that it would       be a reason for granting asylum. Furthermore, (the first       applicant) does not risk being sent to an area struck by armed       conflict since the regular Yugoslav army is not involved in acts       of war.         The harassment to which the family furthermore maintains it will       be subjected is not of such a character that this would entitle       (the family) to asylum... ."         The applicants are at present hiding somewhere in Sweden in order to avoid the deportation.   COMPLAINTS         The applicants complain that the first applicant risks being sentenced to fifteen years' imprisonment or even execution for desertion upon return to Yugoslavia. Moreover, they maintain that a new law has been passed depriving deserters of a trial prior to their conviction. The first applicant also fears to be enrolled in the Yugoslav army and having to fight in the war in Bosnia-Hercegovina. Finally, the applicants maintain that they will be harassed and persecuted if returned. They invoke Article 3 of the Convention.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 11 December 1993 and registered on 22 February 1994. By letter of 25 January 1994 the applicants requested the Commission to stay their deportation until their application had been examined. On 1 February 1994 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 applicants.   THE LAW         The applicants complain that, if expelled to Yugoslavia, the first applicant risks being sentenced to a maximum of fifteen years' imprisonment or even execution for desertion. They furthermore fear persecution and harassment upon return. They invoke 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 that 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).         The Commission does not consider it established that the first applicant would risk capital punishment for desertion if returned to Yugoslavia. No question therefore arises under Article 1 of Protocol No. 6 (P6-1) to the Convention. Even assuming the applicant would risk imprisonment for that offence, the Commission does not find such a possible penalty to be so severe as to raise an issue under Article 3 (Art. 3) of the Convention and the applicants have failed to submit evidence of any special circumstances which could lead the Commission to a different conclusion (cf. No. 12364/86, Dec. 17.10.86, D.R. 50 p. 280; No. 11017/84, Dec. 13.3.86, D.R. 46 p. 176 and 21576/93, Dec. 10.9.93; No. 22325/93, Dec. 8.9.93; No. 22508/93, Dec. 21.10.93; No. 22509/93, Dec. 21.10.93, unpublished).         The Commission further finds no substantiation as regards the allegations of persecution or harassment of the applicants upon their return to Yugoslavia and their 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 case-law mentioned above that Chapter 8, Section 1 of the Aliens Act (utlänningslagen) 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.         In view of the above, the Commission finds no substantiation of the applicants claim that they would be exposed to a real risk of being subjected to treatment contrary to Article 3 (Art. 3) of the Convention on their return to Yugoslavia.         In these circumstances the application must be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission, unanimously,         DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the Second Chamber        President of the Second Chamber           (K. ROGGE)                               (S. TRECHSEL)