CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 11 janvier 1994

.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. 23008/93                       by E.H.                       against Norway, Sweden and Finland         The European Commission of Human Rights (First Chamber) sitting in private on 11 January 1994, the following members being present:              MM.    A. WEITZEL, President                  C.L. ROZAKIS                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK            Mrs.   J. LIDDY            MM.    M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV              Mrs.   M.F. BUQUICCHIO, 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 15 August 1993 by E.H. against Norway, Sweden and Finland and registered on 25 November 1993 under file No. 23008/93;         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 applicant is a Kosovo-Albanian Muslim born in 1975. He is a citizen of the Federal Republic of Yugoslavia and presently staying at Bardu, Norway together with his parents and sister of the same origin.         The facts of the case, as submitted by the applicant, may be summarised as follows.         The applicant and his father entered Sweden in January 1992 and the rest of the family in April 1992. They all requested asylum immediately upon their entry, the male family members fearing that they would be called up to fight in the Federal Yugoslav army. Allegedly the applicant's father had been searched for by the military police on several occasions, but had managed to go into hiding. The female family members claimed they had been harassed because of their ethnic origin. In particular, the applicant's mother had been forced to give up her work as a teacher, having refused to accept the increasing Serbian influence on her school and the ban on teaching in Albanian.         On 1 February 1993 their asylum requests were rejected by the National Immigration Board (statens invandrarverk). The Board noted that the male family members had not shown any call-up orders and that they therefore would not risk any punishment for draft evasion upon their return to the Federal Republic of Yugoslavia. The other circumstances invoked were further not considered such as to render the family eligible for asylum. Nor were there any reasons for granting them residence permits.         In their appeal to the Aliens Appeals Board (utlänningsnämnden) the family alleged that some of their possessions in Kosovo had been seized. The male family members further invoked call up-orders of 6 December 1991 and 8 January 1992.         On 23 June 1993 the Aliens Appeals Board rejected the family's appeal. The Board did not question the accuracy of the call-up orders. It further noted that the penal provision applicable at the time of the call ups prescribed that the severest punishment be the death sentence. However, according to a special order by the Minister of Defence to the two courts competent to try draft evaders and deserters, these courts shall apply the legislation applicable in times of peace, in which case the severest punishment could be fifteen years' imprisonment. The Board had been informed that this order was being complied with. Moreover, in the exceptional cases when deserters and draft evaders had been prosecuted, they had normally only received fines or a two to three months' prison sentence. The male family members' possible sentences could not therefore render them eligible for asylum. The Board further considered that the male family members would not be ordered to participate in acts of war, as the Federal Yugoslav army was not involved in any such activities.         On 3 July 1993 the applicant and his family arrived in Finland, where they again requested asylum. This request was rejected on 28 August 1993 and the applicant and his family were apparently ordered to be removed to Sweden.         In September 1993 the applicant and his family entered Norway. He has not lodged any asylum request in Norway, referring to the negative outcome of his requests in Finland and Sweden.   COMPLAINT         The applicant complains that, owing to his ethnic origin, he will suffer ill-treatment by Serbian officials, if returned to Kosovo in the Federal Republic of Yugoslavia. Although his return is likely to be enforced by Swedish or Finnish authorities, he considers his removal from Norway as a de facto expulsion, having regard to his previous unsuccessful asylum requests in the other two Nordic countries.         As regards possible ill-treatment upon his return, the applicant refers, in particular, to attempts by Serbian officials to poison pupils in his school in Kosovo. In   demonstrations against this "serbification" in 1989 and 1990, in which the applicant apparently took part, some pupils were allegedly killed and many injured. Moreover, in the applicant's home town Mitrovica Serbian officials have allegedly recently assaulted 120 families and arrested 52 men. One young man was allegedly shot, as he attempted to escape from performing military service.         The applicant further refers to his father's membership in "S.D.A. - the League for Democratic Acts" and his mother's membership in the "L.D.K. - the Democratic League of Kosovo". His father has further been forcibly removed from a previous work place and compelled to work with explosives. According to a report by Amnesty International of 12 October 1993 political activists have recently been detained and ill- treated.         The applicant does not invoke any express provision of the Convention or its Protocols.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 15 August 1993 and registered on 25 November 1993.         On 6 October 1993 the President of the Commission decided not to indicate to the Government of Norway, in accordance with Rule 36 of the Rules of Procedure, that it was desirable in the interests of the Parties and the proper conduct before the Commission not to remove the applicant from Norway until the Commission had had an opportunity to examine the case.   THE LAW         The applicant complains that he will suffer ill-treatment, if returned to Kosovo in the Federal Republic of Yugoslavia, owing to his ethnic origin. He considers his forthcoming removal from Norway as a de facto expulsion to the Federal Republic of Yugoslavia, having regard to his previous unsuccessful asylum requests in Sweden and Finland.         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."   (a)    As far as the application is directed against Norway, the Commission finds no indication that the applicant has been ordered to leave that country. It considers, however, that it can leave open the question whether the applicant can, in these circumstances, be considered a "victim" under Article 25 (Art. 25) of the Convention, as the application is, in any event, inadmissible for the following reasons.         The Commission recalls that the Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations including Article 3 (Art. 3), 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 applicant's 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 (e.g. No. 22199/93, Dec. 21.10.93, not published). In order to raise an issue under Article 3 (Art. 3) of the Convention the existence of a specific risk of treatment contrary to that provision should therefore be substantiated in relation to the individual concerned.         As regards the applicant's call-up order the Commission does not consider it established that he would risk capital punishment for draft evasion if returned to the Federal Republic of Yugoslavia. Concerning his possible imprisonment for that 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).         As far as the applicant's own activities in Kosovo as well as his parents' membership in political groups, the Commission observes that the applicant left Kosovo already in the beginning of 1992. Consequently, the relevance of those activities for the applicant's present risk of treatment contrary to Article 3 (Art. 3) if returned to the Federal Republic of Yugoslavia is necessarily reduced.         Moreover, the alleged ill-treatment of the applicant's parents and sister cannot suffice to establish that the applicant himself would be in a particular situation of risk.         The Commission therefore concludes, on the evidence before it concerning the applicant's 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 he would there be exposed to a real risk of being subjected to treatment contrary to Article 3 (Art. 3) of the Convention, if expelled to that country. This being the Commission's conclusion, it is not necessary to determine the possible responsibility of Norway for the returning of the applicant to his country of origin by actions of Swedish or Finnish 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)    As far as the application is directed against Finland and Sweden, the Commission again considers it unnecessary to determine whether the applicant may at this stage claim to be a "victim" of a violation of the Convention by any of those countries. In view of its conclusion above with regard to the application as far as directed against Norway, the Commission considers that the same reasoning applies equally to the application as far as lodged against Sweden and Finland, given the information presently available to the Commission.         It follows that the application must also in this respect 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 First Chamber          President of the First Chamber        (M.F. BUQUICCHIO)                          (A. WEITZEL)