CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 19 octobre 1995

.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. 26305/95                       by Shaban DUSHI                       against Sweden         The European Commission of Human Rights (Second Chamber) sitting in private on 19 October 1995, the following members being present:              MM.    G. JÖRUNDSSON, Acting President                  H. DANELIUS                  J.-C. SOYER                  H.G. SCHERMERS                  F. MARTINEZ                  L. LOUCAIDES                  J.-C. GEUS                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN              Ms.    M.-T. SCHOEPFER, 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 31 October 1994 by Shaban Dushi against Sweden and registered on 25 January 1995 under file No. 26305/95;         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, born in 1971, is a so-called Kosovo Albanian and a citizen of Yugoslavia. At present he resides at Malmberget, Sweden.         In October 1991 he was called up to serve in the Federal Yugoslav army. As he refused to sign the calling-up papers, the police was searching for him. He hid from the police until he left the country in January 1992. On 14 January he entered Sweden and applied for asylum. In his application, he stated that upon return to Yugoslavia he would be sent to the front-line. He also referred to the general situation in Yugoslavia and alleged that Kosovo Albanians are persecuted and discriminated against. He further submitted a document, which he claimed to be the calling-up order.         On 29 June 1993 the National Immigration Board (Statens invandrarverk) rejected the application. The Board stated that it was unlikely that the applicant would be punished for evading military service and that, in any case, the possible sanction would not be severe. Moreover, he would not be forced to do active service. The Board further considered that the general situation in Yugoslavia and the other information given by the applicant were not such as to constitute a ground for granting him asylum or a residence permit. It had translated the document submitted by the applicant and noted that it was an order that he should serve 50 days in prison according to a sentence passed by a court.         Reiterating what he had stated before the Immigration Board and submitting a new document, the applicant appealed to the Aliens Appeals Board (Utlänningsnämnden). On 21 September 1994 the appeal was rejected. The Appeals Board agreed with the findings of the Immigration Board. It also noted that the new document was a summons to a hearing of a municipal court concerning certain economic and family law offences.         The applicant later lodged fresh applications with the Appeals Board. They were rejected by decisions of 4 and 19 October 1994.   COMPLAINTS   1.     The applicant complains that the Swedish immigration authorities were not impartial when they decided on his applications, as they failed to take into account his statements and the documents he had submitted. He invokes Article 6 of the Convention.   2.     Without invoking any further Articles, he also claims that upon return to Yugoslavia he will receive a heavy penalty for desertion.   THE LAW   1.     The applicant complains that his applications have not been examined impartially. He invokes Article 6 (Art. 6) of the Convention, which, in relevant parts, reads as follows:         "1. In the determination of his civil rights ..., everyone       is entitled to a fair ... hearing ... by an independent and       impartial tribunal ..."         However, the Commission has constantly held that the procedures followed by public authorities to determine whether an alien should be allowed to stay in a country or should be expelled do not involve the determination of civil rights within the meaning of Article 6 (Art. 6) of the Convention (cf., e.g., No. 12122/86, Lukka v. the United Kingdom, Dec. 16.10.86, D.R. 50, p. 268, and No. 12364/86, Kilic v. Switzerland, Dec. 17.10.86, D.R. 50, p. 280).         It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.     The applicant further claims that upon return to Yugoslavia he will receive a heavy penalty for desertion.         The Commission has considered this part of the application 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 (cf. 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).         The applicant submits that he will receive a heavy penalty for desertion. In his applications to the Swedish immigration authorities, he has further referred to the general situation in Yugoslavia, in particular the situation of the Kosovo Albanians.         The Commission cannot find it established that the general situation in Kosovo is such that any expulsion of persons coming from that area would be contrary to the Convention (cf. No. 21576/93, F.D. v. Norway, Dec. 10.9.93, unpublished). In order to raise an issue under Article 3 (Art. 3) of the Convention, there should, accordingly, be some substantiation as to the existence of a specific risk for the applicant of treatment contrary to that provision.         However, as to the specific risk alleged by the applicant - that he will receive a heavy penalty for desertion - the Commission does not find any indication that any such sanction would be so severe as to raise an issue under Article 3 (Art. 3) of the Convention (cf. No. 12364/86, referred to above).         Accordingly, the Commission concludes that it has not been established that there are substantial grounds for believing that the applicant would be exposed to a real risk of being subjected to treatment contrary to Article 3 (Art. 3) of the Convention if returned to Yugoslavia.         Moreover, the Commission recalls from its previous case-law that Chapter 8, Section 1 of the Swedish Aliens Act (Utlänningslagen, 1989:529) 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., e.g., No. 25387/94, Kas Ibrahim and Parsom v. Sweden, Dec. 4.7.95, unpublished).         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. 27-2) of the Convention.         For these reasons, the Commission, unanimously,         DECLARES THE APPLICATION INADMISSIBLE.               Secretary                        Acting President       to the Second Chamber               of the Second Chamber           (M.-T. SCHOEPFER)                     (G. JÖRUNDSSON)