CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 2 juillet 1990

.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. 16210/90                       by A.S. and M.S.                       against Sweden             The European Commission of Human Rights sitting in private on 2 July 1990, the following members being present:                 MM. C.A. NØRGAARD, President                   S. TRECHSEL                   F. ERMACORA                   E. BUSUTTIL                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H. DANELIUS              Mrs.   G. H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ RUIZ                   C.L. ROZAKIS              Mrs.   J. LIDDY              MM.   L. LOUCAIDES                   J.-C. GEUS                Mr.   H.C. KRÜGER, Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 9 February 1990 by A.S. and M.S. against Sweden and registered on 26 February 1990 under file No. 16210/90;           Having regard to the report provided for in Rule 40 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 Bulgarian citizens, born in 1961 and 1962. They are at present evading expulsion to Bulgaria by hiding in a church in Sweden.   Before the Commission the applicants are represented by Mr.   Mats Ljungquist, a lawyer practising in Stockholm.           The applicants and their child, born in 1985, came to Sweden on 20 September 1989 and applied for permission to stay in Sweden. They invoked inter alia political reasons against returning to Bulgaria.           On 15 December 1989 the National Immigration Board (statens invandrarverk) refused the applications and ordered that the applicants and their child be expelled from Sweden.           The applicants appealed to the Government.   The National Immigration Board submitted an opinion dated 29 December 1989 and the applicants' counsel submitted comments thereafter.   On 25 January 1990 the Government rejected the appeal.   The Government noted that, in support of their applications for asylum, the applicants had invoked that they were subjected to persecution in their home country on account of their belonging to the Turkish-speaking minority in Bulgaria.   The persecution consisted inter alia in not allowing them to keep their Turkish names and to speak Turkish.   The Government found that the situation for the Turkish-speaking minority group in Bulgaria was such that the group generally speaking could not be considered to be subject to persecution.   They further found no indication in the submissions that the applicants would risk persecution if they were to return to their home country.   The Government concurred with the Immigration Board's assessment that the applicants did not have a right to asylum as refugees in accordance with Chapter 3 Section 2 of the Aliens Act (utlänningslagen).   Furthermore they were not entitled to remain in Sweden on any other ground.   Consequently, immediate expulsion should be ordered.           Following this decision the applicants have gone into hiding in a church in Sweden which the police who are entrusted with the task of enforcing the expulsion order do not enter.   COMPLAINTS           The applicants allege that their deportation to Bulgaria would involve a violation of Article 3 of the Convention in view of the prison sentences which they will face in Bulgaria.   PROCEEDINGS BEFORE THE COMMISSION           On 16 March 1990, following a request from the applicants, the Commission decided not to indicate to the Government that they should not deport the applicants pending the Commission's examination of the case.   THE LAW           The applicants allege a violation of Article 3 of (Art. 3) the Convention on the ground that their expulsion to Bulgaria would involve a risk of their imprisonment in that country.   The applicants submit that the Turkish-speaking minority is persecuted in Bulgaria. Their Turkish names have been changed to Bulgarian names.   The use of the Turkish language has been banned and those who have spoken Turkish have been fined.   Discriminatory practices have been applied against the Turkish- speaking minority.   In the summer of 1989, 318,000 Turkish-speaking Bulgarians emigrated from Bulgaria.   Approximately 5,000 of them came to Sweden.           Article 3 (Art. 3) of the Convention reads:   "No one shall be subjected to torture or to inhuman or degrading treatment or punishment."           The Commission first recalls that according to its established case-law the right to asylum and the right not to be expelled are not as such included among the rights and freedoms mentioned in the Convention but that the expulsion of a person may nevertheless, in certain exceptional circumstances, raise an issue under the Convention and in particular under Article 3 (Art. 3) where there are serious grounds to fear that the person concerned would be subjected, in the State to which he is to be sent, to treatment which is in violation of this Article (Art. 3) (see e.g.   No. 1802/62, Dec. 26.3.63, Yearbook 6   pp. 462, 480; No. 10308/83, Dec. 3.5.84, D.R. 36 pp. 209, 231; No. 10564/83, Dec. 10.12.84, D.R. 40 pp. 262, 265).           In the Soering case, the European Court of Human Rights stated as follows (Eur.   Court H.R., Soering judgment of 7 July 1989, Series A no. 161, para. 91):   "In sum, the decision by a Contracting State to extradite a fugitive may give rise to an issue under Article 3 (Art. 3), and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if extradited, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the requesting country.   The establishment of such responsibility inevitably involves an assessment of conditions in the requesting country against the standards of Article 3 (Art. 3) of the Convention."           In the Commission's view, this test also applies to cases of expulsion.   Consequently, it must be examined whether there are substantial grounds to believe that the applicants face a real risk of being subjected to treatment contrary to Article 3 (Art. 3) of the Convention, if deported to Bulgaria.           The Commission also recalls that ill-treatment or punishment must obtain a certain level of severity if it is to fall within the scope of Article 3 (Art. 3) of the Convention.   The assessment of this level depends on all the circumstances of the case, such as the nature and context of the treatment or punishment, the manner and method of its execution, its duration, its physical or mental effects (cf.   Eur. Court H.R., Soering judgment loc. cit. with further references).   It is clear that a prison sentence does not as such constitute treatment contrary to Article 3 (Art. 3) of the Convention.           The Commission considers that the general situation in Bulgaria is not such that expulsion to that country would in general be a violation of Article 3 (Art. 3) of the Convention.   In order to raise an issue under Article 3 (Art. 3) there must be some substantiation of a risk in the specific case of treatment contrary to Article 3 (Art. 3).           The Commission has examined the applicants' submissions and the documents in support of their application.   Although it accepts that the expulsion of the applicants involves certain hardship for them, the Commission nevertheless finds that the information available to it is not sufficient to conclude that there exists a substantial risk that the applicants would be subjected to treatment contrary to Article 3 (Art. 3) of the Convention if they were returned to Bulgaria.           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           DECLARES THE APPLICATION INADMISSIBLE   Secretary to the Commission                President of the Commission            (H.C. KRÜGER)                             (C.A. NØRGAARD)