CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 16 septembre 1997

.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. 31049/96                       by Pedro and Marielle NAKUNZI                       against Sweden           The European Commission of Human Rights (Second Chamber) sitting in private on 16 September 1997, the following members being present:              Mrs.   G.H. THUNE, President            MM.    J.-C. GEUS                  G. JÖRUNDSSON                  A. GÖZÜBÜYÜK                  J.-C. SOYER                  H. DANELIUS                  F. MARTINEZ                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN                  E. BIELIUNAS                  E.A. ALKEMA                  A. ARABADJIEV              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 4 March 1996 by Pedro and Marielle NAKUNZI against Sweden and registered on 18 April 1996 under file No. 31049/96;         Having regard to the reports provided for in Rule 47 of the Rules of Procedure of the Commission;         Having regard to the observations submitted by the respondent Government on 15 May 1997 and the observations in reply submitted by the applicants on 8 July 1997;         Having deliberated;         Decides as follows:   THE FACTS         The first applicant is an Angolan citizen born in 1962.   The second applicant is a Swedish citizen born in 1966.   They reside in Sundbyberg, Sweden.   Before the Commission they are represented by Mrs. Madelaine Seidlitz, a lawyer practising in Stockholm.         The facts of the case, as submitted by the applicants, may be summarised as follows.         The first applicant came to Sweden and applied for asylum on 6 March 1991.   In April 1991 he met the second applicant.   They moved in with each other in July 1991 and later married.   On 2 May 1992 the second applicant gave birth to the their first daughter, E.         After the National Immigration Board (Statens invandrarverk) had rejected the first applicant's application, the Aliens Appeals Board (Utlänningsnämnden), by decision of 2 December 1992, granted him a temporary residence permit on account of his family ties.   The permit was later prolonged, eventually until 14 August 1994.         On 17 November 1993 the District Court (tingsrätten) of Solna found the first applicant guilty of fraudulent use of a document (missbruk av urkund) and sentenced him to sixty day fines.         On 21 July 1994 the District Court of Stockholm convicted the first applicant on several counts of aggravated fraud and attempted aggravated fraud by means of forgery of documents (grovt bedrägeri och försök till grovt bedrägeri medelst urkundsförfalskning).   The court found that, between November 1992 and February 1993, the first applicant in collaboration with others had used false bank giro forms to induce foreign banks to transfer large amounts of money from accounts in the respective banks to accounts in Swedish banks which had been opened by the perpetrators under false names.   By means of false documents and signatures, they had later withdrawn or tried to withdraw the amounts from the Swedish accounts.   Furthermore, using forged foreign bank cheques, they had induced or attempted to induce Swedish banks to cash the cheques and deposit the amounts on their accounts. The amounts involved in the crimes in which the first applicant was implicated totalled approximately 1.5 million Swedish crowns (SEK). The first applicant was sentenced to four years' imprisonment.   The public prosecutor did not request that he be expelled, nor did the court raise the issue on its own motion.         The applicants' second daughter, C, was born on 13 October 1994.         On 2 January 1995 the Svea Court of Appeal (Svea hovrätt) upheld the District Court's judgment of 21 July 1994.   The appellate court's judgment later gained legal force.         On 7 February 1995 the National Immigration Board rejected the first applicant's application for a permanent residence permit or a prolongation of his temporary permit and ordered his deportation.   In view of the above convictions, the Board considered that he was not entitled to a residence permit despite his family ties.         The first applicant started to serve his prison sentence at Skänninge Prison on 26 August 1995.         The first applicant appealed against the National Immigration Board's decision to the Aliens Appeals Board.   He stated that he had not engaged in any criminal activities after February 1993 and that he had never committed any acts of violence.   He also pointed out that he had not been detained during the criminal proceedings and that the courts apparently had not found any reason to order his deportation. He also referred to his children's need of their father and claimed that, due to the general situation in Angola and the youngest daughter's allergy to certain foods, it was not possible for the other family members to follow him to Angola.   Invoking the judgment of the European Court of Human Rights in the case of Beldjoudi v. France (judgment of 26 March 1992, Series A no. 234-A), he maintained that his deportation would violate Article 8 of the Convention.         On 4 September 1995 the Aliens Appeals Board rejected the applicant's appeal.   The Board had regard to the Beldjoudi case but considered that it was considerably different from the first applicant's.   It further found that, due to the first applicant's previous criminal activities, there were reasons to call into question his future conduct.   Thus, notwithstanding his family ties and the interests of his children, he could not be granted a residence permit.         The first applicant later lodged a new application with the Aliens Appeals Board.   He claimed, inter alia, that his eldest daughter had suffered from anxiety, nightmares and stomach pains since he started to serve his prison sentence.   He submitted a psychologist's statement, according to which it was of decisive importance for the children's development that the family would reunite as soon as possible, and invoked the United Nations Convention on the Rights of the Child.         On 17 January 1996 the Aliens Appeals Board rejected the new application, finding that no essential new facts had been invoked.         In an opinion of 18 March 1997, concerning the first applicant's possible probationary release, the Prison and Probation Administration (kriminalvården) at Skänninge Prison considered that there was no clear risk that he would commit further serious crimes.   According to his contact person at the prison, the prospects of his re-integration into society were good.   The contact person thus recommended that he be released on probation after having served half the prison sentence.         On 25 August 1997, following a further application for a residence permit, the Aliens Appeals Board decided to stay the enforcement of the first applicant's expulsion until further notice. This application is presently pending before the Board.   In support of the application, the applicants have submitted a medical certificate of 20 August 1997 concerning their two daughters, issued by a child psychiatrist and a psychologist at the Children's Psychiatric Clinic (Psykiska Barna- och Ungdomsvården) in Solna.   According to the certificate, the first applicant's expulsion is likely to entail serious consequences for the children's mental health and development.         On 26 August 1997 the first applicant was released on probation after having served half his prison sentence.       COMPLAINTS         The applicants complain that the deportation of the first applicant to Angola would constitute a violation of their right to respect for their family life under Article 8 of the Convention.     PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 4 March 1996 and registered on 18 April 1996.         On 15 January 1997 the Commission decided to communicate the application to the respondent Government, pursuant to Rule 48 para. 2 (b) of the Rules of Procedure.         The Government's written observations were submitted on 15 May 1997, after an extension of the time-limit fixed for that purpose.   The applicants replied on 8 July 1997.         On 22 August 1997 the applicants requested the Commission to petition the respondent Government to stay the first applicant's expulsion until the Commission had decided on the admissibility of the application.   On 25 August the President of the Commission decided not to indicate to the Government, pursuant to Rule 36 of the Commission's Rules of Procedure, the measure suggested by the applicants.     THE LAW         The applicants complain that the deportation of the first applicant to Angola would constitute a violation of their right to respect for their family life.   They invoke Article 8 (Art. 8) of the Convention, which reads as follows:         "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 respondent Government submit that it could be argued that the first applicant's expulsion will entail no interference with his right to respect for his family life as, at the time of the applicants' marriage, he did not have a permanent residence permit and thus was well aware that his continued stay in Sweden was uncertain.   Moreover, the applicants might be able to settle in Angola or a third country. Should, however, the Commission find that the expulsion would entail an interference with the above right, the Government maintain that the interference would be justified under Article 8 para. 2 (Art. 8-2) of the Convention.   In this respect, the Government refer to the first applicant's conviction for several serious crimes and to the legitimate aim of preventing disorder and crime.   Furthermore, considering that, at the time of marriage, the first applicant only had a temporary residence permit, it is natural to assume that the applicants were prepared to settle in another country.   According to the Government, no difficulties to take up residence in a third country have been brought forward by the applicants.   Finally, should the other family members not join the first applicant when he is expelled, he can be given special permission by the National Immigration Board to pay short visits to Sweden to see his family.         The applicants submit that the first applicant's expulsion would not be proportionate to the aim of preventing crime.   Claiming that there is no risk that he will commit further criminal offences, they refer to the opinion of the Prison and Probation Administration of 18 March 1997.   The applicants further submit that residence permits given on account of family ties have to be renewed every six months until, after a two year period, a permanent residence permit is granted.   When the first applicant received his first permit, the applicants had been living together for a long time, were married and had had their first daughter.   The second applicant and the two children, who are Swedish citizens, cannot, for reasons of language, culture and education, follow the first applicant to Angola, where the family would not be able to find housing or work.   Moreover, the youngest daughter is allergic to penicillin and certain foods, including milk and eggs, and would be in great danger in Angola.   The separation of the children from their father could lead to irreparable psychological problems for the children.   The first applicant no longer has any relatives in Angola, as they live as refugees in other parts of the world.   Regard should also be had to his long stay - more than six years - in Sweden.   Further, the possibility of the first applicant paying short visits to his family in Sweden is, according to the applicants, not economically feasible.         The Commission recalls that no right of an alien to enter or to reside in a particular country is as such guaranteed by the Convention. However, the expulsion of a person from a country in which close members of his family live may amount to an unjustified interference with his right to respect for his family life as guaranteed by Article 8 (Art. 8) of the Convention (cf., e.g., Eur. Court HR, Moustaquim v. Belgium judgment of 18 February 1991, Series A no. 193, pp. 19-20, paras. 43-46).         The Commission notes that the applicants have lived together since July 1991, that they married in May 1992 and that they have two daughters.   Finding that the first applicant's expulsion would jeopardise the applicants' continued family life, the Commission considers that the expulsion could be considered as an interference with their right to respect for their family life under Article 8 para. 1 (Art. 8-1).   It is therefore necessary to ascertain whether the expulsion would satisfy the conditions of Article 8 para. 2 (Art. 8-2).         It has not been contested that the expulsion order was issued "in accordance with the law".   Further, notwithstanding the opinion of the Prison and Probation Administration at Skänninge Prison of 18 March 1997, the Commission considers, in view of the crimes of which the first applicant has been convicted, that the enforcement of the expulsion order would pursue the legitimate aim of preventing disorder and crime.         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.   For that purpose they are entitled to order the expulsion of aliens convicted of criminal offences.   However, their decisions in this field must, in so far as they may interfere with a right protected under para. 1 of Article 8 (Art. 8-1), be "necessary in a democratic society", that is to say, justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued.   In this regard, a margin of appreciation is left to the Contracting States. The task of the Commission is to determine whether the expulsion in issue would strike a fair balance between the relevant interests, namely the applicants' right to respect for their family life, on the one hand, and the prevention of disorder and crime, on the other (cf., e.g., Eur. Court HR, Boughanemi v. France judgment of 24 April 1996, Reports 1996-II, No. 8, pp. 609-610, paras. 41-42, and Bouchelkia v. France judgment of 29 January 1997, Reports 1997-I, No. 28, paras. 48-49).         The Commission notes that the first applicant has lived in Sweden for more than six years, almost all the time with the second applicant. Their family life was established at a time when the first applicant had no permit to reside in Sweden.   When he was later given such a permit, it was valid for a limited period of time.   It is true that it was renewed and that the first applicant was likely to receive a permanent residence permit after a few years.   However, the applicants' continued family life in Sweden has all the time been an unsettled question.   Their situation is not comparable to the case of Beldjoudi v. France, invoked by the applicants, as the person to be deported in that case, Mr. Beldjoudi, was born in France, had spent his whole life - over forty years - there and had been married to Mrs. Beldjoudi, a French woman, for more than twenty years (ibid., p. 28, paras. 76- 77).         Of particular importance in the present case is the first applicant's conviction, on 21 July 1994, of serious offences of fraud. For this - his second conviction - he received a four year prison sentence.   The crimes were committed less than two years after his arrival in Sweden, some of them before he received his first temporary residence permit.         The Commission does not overlook the difficulties faced by the other family members in the event of the first applicant's expulsion from Sweden, in particular the hardship suffered by the children if they are separated from their father and the youngest daughter's allergy problems if the family would follow the first applicant to Angola.   However, taking into account the first applicant's conviction, the circumstances under which the crimes were committed and the margin of appreciation left to the Contracting States, the Commission considers that the Swedish authorities have not failed to fulfil their obligation to strike a fair balance between the relevant interests. Thus, the interference with the applicants' right to respect for their family life would be justified under Article 8 para. 2 (Art. 8-2) of the Convention in that it can reasonably be considered necessary for the prevention of disorder and crime.           It follows that the application is 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.            M.-T. SCHOEPFER                        G.H. THUNE             Secretary                            President       to the Second Chamber                of the Second Chamber