CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 20 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. 23175/94                       by G.W.                       against Sweden         The European Commission of Human Rights sitting in private on 20 January 1994, the following members being present:              MM.    C.A. NØRGAARD, President                  S. TRECHSEL                  A. WEITZEL                  E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  J.-C. SOYER                  H. DANELIUS            Mrs.   G.H. THUNE            MM.    F. MARTINEZ                  C.L. ROZAKIS            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  E. KONSTANTINOV                  D. SVÁBY              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 20 December 1993 by G.W. against Sweden and registered on 4 January 1994 under file No. 23175/94;         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 citizen of South Africa, born in 1966. Currently he is staying in Stockholm. Before the Commission he is represented by Mr. Leif Rydberg, a lawyer at Bergshamra.         The facts of the case, as submitted by the applicant, may be summarised as follows.   Particular circumstances of the case         The applicant entered Sweden on 29 September 1991. On 30 September 1991 he requested asylum. In his asylum request the applicant claimed that on 7 September 1991 his parents had been murdered in their home in Soweto by supporters of the rival political movement, the Inkatha. The applicant tried to defend his parents by attacking one of the supporters. The reason for the murder was allegedly that the applicant's father had been an active member of the African National Congress (hereinafter the "ANC"). Moreover, in 1991 the father had killed two supporters of the Inkatha during violent clashes in Soweto.         In the asylum investigation the applicant stated that he himself had not been politically active, but, as he had attacked a supporter of the Inkatha in order to defend his parents, he could not go back to South Africa for fear of being killed by the Inkatha. Allegedly, the Inkatha supporters had returned to the house of the applicant's parents to look for him soon after their murder.         On 11 February 1993 the National Immigration Board (statens invandrarverk) rejected the asylum request and found no grounds for granting the applicant a residence permit. The Board observed that violence occurs between members of the ANC and the Inkatha, but noted that the applicant himself had not been politically active within the ANC. Thus, any action of revenge from the Inkatha would be highly unlikely. Also, having regard to the time which had elapsed from the alleged murder of his parents, the Board considered the applicant's fears of persecution to be significantly exaggerated. Finally, the Board considered that participation in fights between rival groups was not normally a reason for granting asylum.         The applicant appealed to the Aliens Appeals Board (utlännings- nämnden), submitting that traditionally a son is considered to belong to the same organisation as his father. As a son is obliged to take revenge for the murder of his father, the Inkatha supporters will also wish to kill the applicant. The South African authorities allegedly support or tolerate violent actions by the Inkatha against ANC members.         The applicant's appeal was rejected on 8 July 1993. The Board considered that the fact that the applicant did not request asylum immediately upon his arrival in Sweden affected the credibility of his alleged reasons for seeking asylum. Moreover, the applicant had entered Sweden using someone else's passport which he had destroyed after passing the passport control. As the applicant had not himself been politically active and in view of the time which had elapsed from the alleged murder of his parents, the applicant's fears of being persecuted on his return to South Africa were considered significantly exaggerated.         According to a psychiatric report of 1 October 1993, the applicant is suffering from insomnia, nightmares, anxiety, anorexia, hallucinations, paranoia, depression and suicidal thoughts. He was considered to be in need of psychiatric care in an institution, but has not consented to this "for fear of the police." The report concludes that, should the applicant's expulsion be enforced, he might attempt to commit suicide.   Relevant domestic law         Under Chapter 2, Section 5, subsection 3, of the Aliens Act (utlänningslag 1989:529), a request for a residence permit, lodged by an alien who is to be refused entry or expelled by a decision which has acquired legal force, may only be granted provided the request is based on new circumstances and the applicant is either entitled to asylum or there are weighty humanitarian reasons for allowing him to stay in Sweden.         An alien who has been refused entry or who is to be expelled may never be conveyed to a country where there is firm reason to believe that he would be in danger of being subjected to capital or corporal punishment or torture, or to a country where he is not protected from being sent to a country where he would be in such danger (Chapter 8, Section 1).         When a refusal of entry or an expulsion order is put into effect, the alien may, in principle, not be sent to a country where he would risk being persecuted, or to a country where he would not be protected from being sent on to a country where he would risk being persecuted (Chapter 8, Section 2, subsection 1). The exceptions to this rule are not relevant in the present case.         If the enforcement is not subject to any obstacles under, inter alia, Chapter 8, Sections 1 and 2, an alien who has been refused entry, or who is to be expelled, is to be sent to his country of origin or, if possible, to the country from which he came to Sweden. If the decision cannot be put into effect in the manner indicated in subsection 1, or there are other special grounds for doing so, the alien may be sent to some other country instead (Chapter 8, Section 5).         When considering a request for a residence permit lodged by an alien to be expelled according to a decision which has acquired legal force, the National Board of Immigration (and in certain cases the Government too) may stay execution of that decision. For particular reasons, the Board may also otherwise stay execution (Chapter 8, Section 10).         If the enforcing authority finds that enforcement cannot be carried out or that further information is needed, the authority is to notify the National Board of Immigration accordingly. In such a case, the Board may decide on the question of enforcement or take such other measures as are necessary (Chapter 8, Section 13).   COMPLAINTS         The applicant complains of his imminent expulsion to South Africa, where he fears being persecuted by supporters of the Inkatha. He submits that he was a member of the ANC and participated in demonstrations against the Inkatha. Allegedly, his father had hidden weapons to be used against the Inkatha without ever informing the applicant of their hiding- place. The Inkatha supporters, however, are said to believe that the applicant is aware of the arms cache and will therefore attempt to extract information about it if they find him.         The applicant further refers to his present mental state as an obstacle to his expulsion.         No particular provision of the Convention is invoked.   THE LAW         The applicant complains of his imminent expulsion to South Africa, where he fears persecution from supporters of the Inkatha. He further refers to his present mental state as an obstacle to his expulsion.         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 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 to give rise to a breach of Article 3 (Art. 3) (ibid., p. 37, para. 111).         Turning to the present case and notably to the applicant's fears of persecution by Inkatha supporters, the Commission observes that the applicant's present submissions are inconsistent with those previously made before the Swedish authorities. For instance, in the asylum investigation he stated that he had never been politically active, whereas before the Commission he claims to have been an ANC member and to have participated in demonstrations. Moreover, before the Swedish authorities he never referred to the risk he now describes to the Commission of Inkatha supporters attempting to extract information from him about his father's arms cache. These inconsistencies affect the credibility of the applicant's submissions to the Commission.         In these circumstances the Commission cannot find that substantial grounds have been established for believing that the applicant would, on account of his background, be exposed to a real risk of being subjected to treatment contrary to Article 3 (Art. 3) of the Convention on his return to South Africa.         As regards the applicant's mental state, the question could be raised whether, having regard to the psychiatric report of 1 October 1993, the applicant's expulsion would involve such a trauma for him that it could amount to a violation of Article 3 (Art. 3) of the Convention (cf. Eur. Court H.R., Cruz Varas and others judgment of 20 March 1991, Series A no. 201, p. 31, paras. 83-84).         The Commission notes, however, that under Swedish law a further request for asylum or a residence permit may be lodged with reference to new circumstances (cf. No. 20547/92, Dec. 15.2.93, unpublished). However, the psychiatric report has not been invoked by the applicant in support of such a request.         In these circumstances, the application 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)