CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 21 octobre 1993

.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. 22199/93                        by M.A. and family                        against Finland and Sweden             The European Commission of Human Rights sitting in private on 21 October 1993, the following members being present:         MM.   C.A. NØRGAARD, President            S. TRECHSEL            A. WEITZEL            E. BUSUTTIL            A.S. GÖZÜBÜYÜK            J.-C. SOYER            H.G. SCHERMERS            H. DANELIUS       MM.   F. MARTINEZ            C.L. ROZAKIS       Mrs. J. LIDDY       MM.   L. LOUCAIDES            J.-C. GEUS            M.P. PELLONPÄÄ            B. MARXER            G.B. REFFI            M.A. NOWICKI            I. CABRAL BARRETO            B. CONFORTI            N. BRATZA         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 4 June 1993 by M.A. and family against Finland and Sweden and registered on 12 July 1993 under file No. 22199/93;         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 applicants M., Z., L. I. and V. A. are husband, wife and three minor children, born in 1960, 1959, 1988, 1989 and 1992, respectively.   They are of Kosovo-Albanian origin and citizens of the Federal Republic of Yugoslavia.   Their present whereabouts are unknown. Before the Commission they are represented by Mr. Sami Basota, Kerava, Finland.         The applicants entered Sweden on 3 September 1991 and immediately requested asylum.   On 10 August 1992 the National Immigration Board (statens invandrarverk) rejected the requests, considering that the husband's political activity as a local leader of the "Democratic Union" had not been such as to subject him to a risk of being persecuted or punished upon return.   His party had been allowed in Kosovo and his activities had not been of any extensive character. Moreover, the Federal Republic of Yugoslavia was not a country at war and no general mobilisation was taking place there.         On 18 March 1993 the Aliens' Appeals Board (utlänningsnämnden) upheld the decision despite a draft order issued by the federal army and submitted to the Appeals Board by the applicants.   Before the Appeals Board the applicants had further stated that police had searched for the husband on several occasions.   The Appeals Board considered that draft evaders were running very little risk of being prosecuted and that, in any case, the husband's possible sentence could not be a sufficient ground for granting asylum.         The applicants entered Finland on 28 March 1993 and immediately requested asylum or residence permits.   On 23 April 1993 the requests were rejected by the Ministry of the Interior (sisäasiainministeriö, inrikesministeriet).         On 24 June 1993 the Ministry of the Interior ordered the applicants to be removed from Finland to Sweden.   The decision was served on the applicants on 30 July 1993.         The applicants' removal from Finland to Sweden was carried out on 22 September 1993.     COMPLAINTS         The applicants complain against Finland that their removal from that country to Sweden will result in ill-treatment once they are returned to the Federal Republic of Yugoslavia. Given that their return from Sweden to that country is most probable in view of their previous unsuccessful asylum requests in Sweden, the applicants regard their removal as a de facto expulsion to the Federal Republic of Yugoslavia. They also direct their application against Sweden.           The applicants refer to their ethnic origin as a reason for the feared ill-treatment in the Federal Republic of Yugoslavia. The husband further fears persecution and punishment for having evaded the draft as well as for having been active in the "Democratic Union".   He submits that the punishment for draft evasion could be execution.   The wife alleges that she will be punished, possibly by being raped by Serbian officials, for having left the country together with her husband.   The applicants mainly invoke Articles 2 and 3 of the Convention. PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 4 June 1993 and registered on 12 July 1993.         On 20 August 1993 the President of the Commission decided to apply Rule 36 of the Rules of Procedure of the Commission, having found that it was desirable not to remove the applicants from Finland to Sweden until the Commission had had an opportunity to examine the case further.   The President further requested the Government of Finland to submit certain information.         On 27 August 1993 the Finnish Government submitted the information requested.         On 8 September 1993 the Commission decided to revoke the President's indication under Rule 36.     THE LAW   (a)    The applicants primarily complain against Finland of their removal to Sweden, alleging that the removal would constitute a de facto expulsion to the Federal Republic of Yugoslavia, where they risk being subjected to ill-treatment owing to their ethnic origin and the husband's and the wife's past activities in Kosovo.         The Commission has examined 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 the 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., para. 103).   A mere possibility of ill- treatment is not in itself sufficient (ibid., p. 37, para. 111).         The examination of the present case involves, on the one hand, the applicants' personal situation and, on the other, the general situation in Kosovo.   The Commission finds that the general situation in Kosovo at present is not such that an expulsion to that region would as such amount to a violation of the Convention or any of its Protocols.   In order to raise an issue under Article 3 (Art. 3) of the Convention there should accordingly be some substantiation of the existence of a specific risk of treatment contrary to that provision.         In the present case such particular circumstances might be that the husband has evaded military service. The Commission does not, however, consider it established that he would risk capital punishment for that offence if returned to the Federal Republic of Yugoslavia. No   question therefore arises under Article 1 of Protocol No. 6 (P6-1) to the Convention. Concerning his possible imprisonment for the offence, the Commission does not find such a penalty so severe as to raise an issue under Article 3 (Art. 3) of the Convention (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; No. 21576/93, Dec. 10.9.93 and No. 22325/93, Dec. 8.9.93, unpublished).         The Commission further finds no substantiation of the husband's allegation of possible ill-treatment on account of his past political activities nor of the wife's allegation of possible ill-treatment upon their return to the Federal Republic of Yugoslavia.         The Commission concludes, on the evidence before it concerning the applicants' background and the general situation in the Federal Republic of Yugoslavia, that it has not been established that there are substantial grounds for believing that the applicants would there be exposed to a real risk of being subjected to treatment contrary to Article 3 (Art. 3) of the Convention, if expelled from Sweden to that country. This being the Commission's conclusion, it is not necessary to determine the possible responsibility of Finland for the returning of the applicants to their country of origin by actions of Swedish authorities.         It follows that the application in this respect must be rejected as being manifestly ill-founded, within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   (b)    In so far as the application is directed against Sweden, the Commission does not at this stage consider it necessary to determine under Article 25 (Art. 25) whether the applicants can claim to be a "victim" of a violation of the Convention by that country. It refers to its conclusions above with regard to the application as directed against Finland and considers that same reasoning applies equally to the application as directed against Sweden, given the information presently available to the Commission.         It follows that the application also in this respect 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 Commission             President of the Commission          (H.C. KRÜGER)                          (C.A. NØRGAARD)