CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 11 avril 1996

.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. 28071/95                       by Fatih SACIC                       against Sweden         The European Commission of Human Rights (Second Chamber) sitting in private on 11 April 1996, the following members being present:              Mrs.   G.H. THUNE, Acting President            MM.    H. DANELIUS                  G. JÖRUNDSSON                  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 22 October 1993 by Fatih Sacic against Sweden and registered on 31 July 1995 under file No. 28071/95;         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 1940, is from Novi Pazar which is situated in the Serbian part of the Sandzak region. He is a muslim. According to the passport he possessed upon arrival in Sweden he is a citizen of the former Republic of Yugoslavia. At present he resides with his wife at Valdemarsvik, Sweden. In the proceedings before the Commission the applicant is represented by Mr. Thomas Wasteson, a lawyer practising at Linköping, Sweden.         The applicant gave up a post as director of a transport company in 1986. Subsequently, he worked as a lawyer in Novi Pazar, Serbia. In 1991 he allegedly participated in the creation of the Party for Democratic Action (hereinafter the SDA) in the area. Due to his affiliation to the SDA he and his wife were harassed by Serbian soldiers who controlled the area in which they lived and the applicant considered that he was under constant surveillance. Eventually the applicant decided to leave Serbia together with his wife as he was informed that he might be arrested. They arrived in Sweden on 22 June 1992 and applied for asylum with reference to the general situation in Serbia and to his affiliation to the SDA. The applicant maintained that he would be persecuted and arrested in Serbia due to his political activities and since he carried military secrets obtained while he was director of the transport company. He also referred to his poor state of health, having suffered a heart attack in 1991.         On 17 September 1993 the National Immigration Authority (Statens Invandrarverk, the SIV) rejected the applicant's request for asylum. On the basis of the applicant's submissions the SIV found no reason to believe that his situation was such that he was entitled to asylum. Nor was his state of health such that a residence permit should be granted on humanitarian grounds.         The applicant appealed against the decision to the Aliens Appeals Board (Utlänningsnämnden). It appears that in the meantime the applicant's adult son and daughter arrived in Sweden with their families and obtained residence permits under a special provision applicable to families with small children. Accordingly, the applicant maintained, in addition to his previous submissions, that his request for a residence permit ought to be granted for reasons of family unification.         The Aliens Appeals Board rejected the applicant's application on 24 January 1995. As regards the applicant's affiliation to the SDA the Board had obtained information from the Swedish Embassy (ambassadutredning) according to which the applicant was unknown to the SDA leadership. Accordingly, the Board found that his political activity was not such that asylum could be granted. Furthermore, the request for a residence permit for reasons of family unification was rejected as provisions to that effect only applied to parents over sixty. Finally, the Board found no other humanitarian reasons on the basis of which a residence permit could be granted. A subsequent application was rejected on 27 October 1995 as it contained no relevant new information. It appears that the date of enforcement has not yet been fixed.COMPLAINTS         The applicant complains that he risks torture or inhuman or degrading treatment if returned to Serbia. He refers in this respect to Article 3 of the Convention.         Under Article 8 of the Convention the applicant maintains that an expulsion from Sweden would deny him the possibility to maintain personal contacts with his children and grandchildren.         Finally, the applicant complains that his requests for asylum were not examined fairly. He does not invoke any Articles of the Convention in this respect.   THE LAW         The applicant complains that upon return to Serbia he will be subjected to treatment contrary to Article 3 (Art. 3) of the Convention which reads:         "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., para. 103). A mere possibility of ill-treatment is not in itself sufficient (ibid., p. 37, para. 111).         The applicant submits that he will be punished for his political activities. In his applications to the Swedish immigration authorities, he has further referred to the general situation in Serbia, in particular the situation of the muslims living in the Sandzak region.         The Commission finds that the general situation in the Sandzak region is not of a kind that an expulsion to that part of Serbia would as such amount to a violation of the Convention or its Protocols. 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 problems alleged by the applicant the Commission finds 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 Serbia.         Moreover, the Commission recalls 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.         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.   2.     The applicant also complains that as his son and daughter and their families now live in Sweden an expulsion would prevent him from maintaining a personal contact with them contrary to 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 recalls that the Convention does not guarantee a right to enter or reside in a particular country. However, the Commission has held that, in view of the right to respect for family life ensured by Article 8 (Art. 8) of the Convention, the exclusion of a person from a country in which his or her close relatives reside may raise an issue under this provision of the Convention (cf., for example, No. 13654/88, Dec. 8.9.88, D.R. 57 p. 287).         In the present case the Commission notes that the applicant has not submitted any evidence which could clarify the degree of dependency which exists between him and his relatives. However, for the purposes of this case the Commission accepts that the applicant's expulsion may be considered as an interference with his right to respect for family life.         The question which then must be examined is whether this interference was justified under the second paragraph of Article 8 (Art. 8) of the Convention, i.e. whether it was in accordance with the law, had a legitimate aim and was necessary in a democratic society in order to achieve the aforesaid aim.         The Commission recalls that the decision of the Swedish authorities not to grant the applicant a residence permit and to expel him was taken in accordance with the Aliens Act (Utlänningslagen) which inter alia aims at regulating the right of aliens to take up residence in the country.         Having regard to the close connection between the policy of regulating immigration and considerations pertaining to the economic well-being of the country and the public order, the Commission considers that the decision not to grant the applicant asylum and to expel him was taken in pursuit of legitimate aims within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention, i.e. the economic well-being of the country and the prevention of disorder.         What remains is accordingly to examine whether the interference was "necessary". In this connection the Commission recalls, as already indicated above, that the Convention does not in principle prohibit the Contracting States from regulating the entry and length of the stay of aliens, and the Commission's function is not to pass judgment on immigration or residence policies as such. It only has to examine the interference complained of and to weigh the legitimate aims pursued against the seriousness of the interference with the applicant's right to respect for his family life (cf. Eur. Court H.R., Berrehab judgment of 8 March 1985, Series A no. 138, p. 16, para. 29).         In the present case the Commission recalls that when the applicant applied for asylum in Sweden his application did not concern a person who already lived there lawfully, but an alien seeking a permanent residence permit for the first time. His wish to reside permanently in Sweden was not based on any legitimate expectations, nor was it based on a request for family unification as he and his wife had left Serbia leaving the other relatives behind. Furthermore, it appears that the applicant's two adult children were not in the former Republic of Yugoslavia living at home with their parents but lived elsewhere together with their spouses and children.         In these circumstances the Commission finds that respect for the applicant's family life does not outweigh the general interest of the economic well-being of the country and the prevention of disorder. The interference with the applicant's right under Article 8 para. 1 (Art. 8-1) of the Convention was therefore justified under para. 2 of Article 8 (Art. 8-2) of the Convention.         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.   3.     Finally, the applicant complains that his asylum applications have not been examined fairly.         However, the Commission has constantly held that the procedures followed by the public authorities to determine whether an alien should be allowed to stay in a country or should be expelled do not come within the scope of the Convention; in particular such proceedings 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, D.R. 50 p. 268, and No. 12364/86, Kilic v. Switzerland, 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.         For these reasons, the Commission, unanimously,         DECLARES THE APPLICATION INADMISSIBLE.     Secretary to                                 Acting President the Second Chamber                           of the Second Chamber   (M.-T. SCHOEPFER)                                 (G.H. THUNE)