CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 10 mars 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 }                              SUR LA RECEVABILITÉ                         Application No. 22806/93                       by A. and family                       against Sweden         The European Commission of Human Rights sitting in private on 10 March 1994, the following members being present:         MM.   C.A. NØRGAARD, President            S. TRECHSEL            A. WEITZEL            F. ERMACORA            E. BUSUTTIL            G. JÖRUNDSSON            A.S. GÖZÜBÜYÜK            J.-C. SOYER            H.G. SCHERMERS            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            G.B. REFFI            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 21 July 1993 by A. and family against Sweden and registered on 22 October 1993 under file No. 22806/93;         Having regard to :         -     reports provided for in Rule 47 of the Rules of Procedure       of the Commission;         -     the observations submitted by the respondent Government on       29 November 1993 as well as 3 and 7 March 1994 and the       observations submitted by the applicants on 2 January as well as       1, 3, 9 and 10 March 1994;         Having deliberated;         Decides as follows:   THE FACTS         The applicants are a mother, born in 1962, with her two children M., born in 1986 and S., born in 1989. They are of Lebanese nationality and currently reside in Vallentuna, Sweden. They are represented by Mr. Leif Rydberg, a lawyer in Bergshamra.         The facts of the case, as submitted by the parties, may be summarised as follows.   Particular circumstances of the case         The first applicant is a Christian Armenian. Her father was allegedly responsible for the military activities of the Christian Kataeb party led by the former Lebanese President Gemayel. Her mother is also said to have been politically active in the same party. The first applicant allegedly became involved in political activities at the age of eleven and in military activities in 1976, at the age of fourteen. She served as a radio specialist and as an assistant to an intelligence officer, who was a subordinate of ex-General Aoun. In 1984 she married another soldier in Aoun's troops and withdrew from military activities. However, she continued to sympathise with General Aoun, inter alia, by arranging demonstrations.         According to the applicants, the first applicant's husband and the other applicant's father disappeared in Lebanon in August 1990. Allegedly for this reason the applicants left Lebanon in October 1990, having been smuggled out of the country carrying false passports. On 28 October 1990 they entered Sweden, where they immediately requested asylum.         On 11 September 1991 the asylum request was refused by the National Immigration Board (statens invandrarverk), considering that the first applicant had never been arrested in Lebanon and having regard to the general situation in the country. Participation in conflicts between different groups was not considered sufficient for the granting of asylum.         On 27 October 1992 the Aliens' Appeals Board (utlänningsnämnden) upheld the refusal, questioning the first applicant's credibility, as she had apparently thrown away her passport and had been unable to name the airline transporting the applicants to Sweden, despite her claim that she had served as an intelligence officer.         According to a report of 18 December 1991 submitted by the Clinic for Children's and Youth Psychiatry at the hospital of Danderyd, the first applicant appears to be a mentally strong woman who, at the time, was having a difficult crisis, but nevertheless shows responsibility and energy when it comes to her children's care.         According to a report of 16 November 1992 submitted by Dr. Marianne Bauer, a psychiatrist, there was at the time a great risk that the first applicant would kill her children and commit suicide in order to avoid enforcement of the expulsion order. This was said to be due to her fear of being killed if returned to Lebanon.         According to a psychological report of 3 May 1993 submitted by Mr. Anders Andrén, a psychologist, the first applicant was at the time suffering from a post-traumatic stress syndrome with depression, a slight psychosis, flashbacks involving shooting, insomnia and nightmares, excessive sound sensitivity, headache, anorexia and heart and breathing problems. The report continues:         (translation from Swedish)         "... [The first applicant] is ... anxious, depressed,       desperate and sometimes confused. Further [mental] pressure       could lead to suicide attempts. It cannot ... be excluded       that [her] psychosis would develop. ...         ... Her capacity to care for herself and her children if       returned to Lebanon appears to depend significantly on the       care to be expected there. ..."         The report also found that the first applicant's children were traumatised by experiences from the civil war in Lebanon and that the older child is suffering from flashbacks involving shootings.         On 18 June 1993 the applicants lodged a further request for residence permits and stay of execution of the expulsion order. Reference was made to the expert reports of 18 December 1991 and 3 May 1993.         On 22 June 1993 the request was rejected, the Board considering that no new grounds had been shown.         On 26 January 1994 the applicants requested that the enforcement of the expulsion order be suspended. The request was granted by the National Immigration Board on 27 January 1994 pending the outcome of the application lodged under the Convention.         In a further psychological report by Mr. Andrén submitted on 22 February 1994 the first applicant's current mental state is considered to be, in essence, the following:         (translation from Swedish)         "... The [first applicant's] symptoms, as described in [my]       report of 3 May 1993 remain ... and have, in some respects,       become aggravated ...         [The first applicant] is deeply depressed ...         After the fourth denial of a residence permit [she] has       more and more begun contemplating suicide ...         ... [She] is not afraid of dying, but fears being tortured       or raped ...         ... Further pressure (due to a further denial [of a       residence permit]) may cause an impulsive, suicidal       reaction or , in the alternative, an aggravation of her       psychosis ... Suicidal behaviour is to be expected in       connection with [the enforcement of her and the children's]       expulsion [order] ...         In his report of 28 February 1994 Dr. Peter Nordström, a psychiatrist consulted on a regular basis by the National Immigration Board (förtroendeläkare i utlänningsärenden), evaluates the first applicant's current mental state as follows:         (translation from Swedish)         "... [The first applicant has not sought any continuous       care and support ... [She is in] no particular need of       receiving compulsory psychiatric treatment ...         Under the circumstances the [second and third applicants]       seem to be in   surprisingly good mental health.         ... The risk that [the first applicant] would ... first       kill her children and then commit suicide [in order to       avoid enforcement of their expulsion] ... now appears less       significant ...         The medical documentation does not convincingly show that       there are medical [psychiatric] obstacles to the       enforcement [of the expulsion order]. [T]here is, however,       a clearly formulated and well planned, conditional threat       [that the first applicant would commit suicide] by the help       of a self-made petrol bomb. This threat should be taken       seriously, [thereby] requiring particular attention during       possible attempts to enforce [the expulsion order]. Reasons       of a generally humanitarian character, following from the       fact that children form part of the family, are not taken       into account in this evaluation. ..."         Dr. Nordström's report is based on an evaluation of the previously mentioned expert reports as well as on a report of 28 February 1994 submitted by Ms. Gudrun Lindroth, a psychologist and psychotherapist. According to Ms. Lindroth, the first applicant is suffering from a complex post-traumatic stress syndrome. Her suicidal plans are extremely concrete and realistic and she is fully capable of taking her own life so as to enable the other applicants to stay in Sweden. Ms. Lindroth considered the other applicants to be in relatively good mental health.         Dr. Nordström's report is further based on telephone interviews with Mr. Andrén and Ms. Lindroth and on an interview with the applicants on 23 February 1994. According to the telephone interview with Mr. Andrén, the first applicant now appears less likely to take the other applicants' lives or injure them in order to prevent their expulsion.         It appears from the file that in the autumn of 1993 the first applicant's father had been informed that her husband is living in Greece at an unknown address.         The first applicant's younger sister entered Sweden in August 1989 together with her daughter. Their request for asylum or de facto refugee status was rejected, but they were granted a permanent residence permit on humanitarian grounds in January 1990. Subsequently they have been joined by the sister's husband.         The first applicant's father entered Sweden in June 1990. In July 1990 his request for de facto refugee status was rejected, but he was granted a permanent residence permit on humanitarian grounds. In September 1990 he requested permanent residence permits on behalf of his wife (the first applicant's mother) and two of their children, namely a further younger sister as well as a younger brother of the first applicant.         The wife entered Sweden in March 1991 and in September 1991 she was granted a permanent residence permit. The first applicant's sister was twice refused a residence permit, in December 1990 and May 1992. In September 1992 she entered Sweden and applied for asylum, referring to her activities within the Kataeb party. This request was struck out by the National Immigration Board in November 1993, as she had been granted a residence permit in Norway. The first applicant's brother has been refused a residence permit four times, in December 1990, May 1991, May 1992 and March 1993. According to the Government, he is still living in Lebanon.         It appears from the file that the first applicant's aunt is also living in Lebanon, although, according to the applicants, "in a Muslim area where they could hardly seek protection".   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.         Under Chapter 3, Section 1, an alien may be granted asylum because he is a refugee or, without being a refugee, if he wishes not to return to his home country because of the political situation there and provided he can put forward weighty reasons in support of his wish. The term "refugee" refers to an alien who is staying outside the country of which he is a citizen because he feels a well-founded fear of being persecuted in that country, having regard to his race, nationality, membership of a special group in society or his religious or political convictions, and who cannot or does not wish to avail himself of his home country's protection (Chapter 3, Section 2).         An alien, as referred to in Chapter 3, Section 1, is entitled to asylum. Asylum may, however, be refused inter alia if, in the case of an alien falling under Chapter 3, Section 1, para. 3, there are special grounds for not granting asylum (Chapter 3, Section 4). An alien may be refused entry into Sweden if he lacks a visa, residence permit or other permit required for entry, residence or employment in Sweden (Chapter 4, Section 1, para. 2). When considering whether to refuse an alien entry or to expel him, it must be examined whether he, pursuant to Chapter 8, Sections 1-4, can be returned to a particular country or whether there are other special obstacles to the enforcement of such a decision (Chapter 4, Section 12). A refusal of entry issued by the National Board of Immigration may be combined with a prohibition on return for a specific period of time (Chapter 4, Section 14). In refusing entry the Aliens' Appeals Board may also issue a prohibition on return for a specific period of time (Chapter 7, Section 5, subsection 2).         Under Chapter 7, Section 10, the National Board of Immigration may review its decision if new circumstances have emerged or for any other reason, provided it would not affect the alien negatively or be irrelevant to him. A review may take place even if an appeal has been lodged against the Board's decision. Once the Board has handed over the file to the Aliens' Appeals Board it may only review its decision if its opinion is requested by the Aliens' Appeals Board. The National Board of Immigration may, for special reasons, refer a request for asylum to the Aliens' Appeals Board together with its opinion in the matter (Chapter 7, Section 11).         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 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). An alien may, however, be sent to such a country if he cannot be sent to any other and if he has shown, by committing a particular offence, that public order and safety would be seriously endangered by his being allowed to remain in Sweden. However, this does not apply if the threatened persecution in the receiving State implies danger to his life or is otherwise of a particularly grave nature (subsection 2). Similarly, the alien may be sent to a country referred to in subsection 1 if he has engaged in activities endangering the national security of Sweden and if there is reason to suppose that he would continue to engage in such activities in Sweden and he cannot be sent to any other country (subsection 3).         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   1.     The applicants complain that, if returned to Lebanon, they would risk imprisonment and torture owing to the activities of the first applicant, as well as her parents, in support of the Kataeb party. The applicants refer to a letter by former President Gemayel confirming that the first applicant was serving in the Kataeb party during the civil war and that he knows her and her family "very well". Allegedly, both present and former members of the Kataeb party are still being persecuted in Lebanon, notably by the Syrian security police. For instance, in December 1993 the party's headquarters in Beirut was bombed and several persons were killed, including a member of Parliament.         The applicants further allege that persecution of Christians is also continuing, as Lebanon is practically ruled by Syrian forces. The applicants refer to the bombings in February 1994 of a Christian- Maronite church at Jonie where some ten persons were killed, and to the recent attempt to bomb another Christian church in Lebanon.         The applicants finally refer to the opinions regarding their current mental health which they consider forms an obstacle to their expulsion.   2.     In regard to the impending expulsion the applicants finally allege that their entire family is lawfully resident in Sweden. They claim to have no relatives left in Lebanon, as the first applicant's missing husband is thought to be dead.         The applicants invoke Articles 2, 3, 5, 8, 9, 10, 11 and 14 of the Convention.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 21 July 1993 and registered on 22 October 1993.         On 22 October 1993 the Commission decided to bring the application to the notice of the Government and to invite them to submit written observations on its admissibility and merits. It further decided, pursuant to Rule 36 of the Commission's Rules of Procedure, to indicate to the Government that it was desirable in the interests of the parties and the proper conduct of the proceedings not to expel the applicants to Lebanon until the Commission had had an opportunity to examine the application before 10 December 1993.         Following an extension of the time-limit, the Government's observations were submitted on 29 November 1993.         On 9 December 1993 the Commission prolonged the indication under Rule 36 until 21 January 1994.         Following an extension of the time-limit, the applicants' comments in reply were submitted on 2 January 1994.         On 20 January 1994 the Commission decided to obtain supplementary written observations from both parties on the admissibility and merits of the application. It further decided to prolong its indication under Rule 36 until 11 March 1994.         Supplementary observations were submitted by the applicants on 1 and 3 March 1994 and by the Government on 3 March 1994. On 9 and 10 March 1994 the applicants submitted comments in reply to the Government's supplementary observations. The Government commented on the applicants' supplementary observations on 7 March 1994.   THE LAW   1.     The applicants complain that, if returned to Lebanon, they would risk severe ill-treatment primarily owing to the first applicant's military background and her parents' political activities in support of the Kataeb party and having regard to the Syrian presence in Lebanon. Moreover, Christians are allegedly still being persecuted in Lebanon. Finally, the applicants refer to their current mental health which they consider forms an obstacle to their expulsion.         The Commission has examined this complaint under Article 3 (Art. 3) of the Convention which reads:         "No one shall be subjected to torture or to inhuman or degrading       treatment or punishment."         The Government question whether domestic remedies have been exhausted, referring to the expert reports submitted by Mr. Andrén and Dr. Nordström in February 1994. In the alternative, the Government consider the complaint manifestly ill-founded, no substantial grounds having been shown for believing that the applicants would be subjected to treatment contrary to Article 3 (Art. 3) of the Convention if returned to Lebanon.         First, as regards the military and political background in Lebanon of the first applicant and her parents, the Government have not been informed of any attempts to harm the applicants in Lebanon on account of the first applicant's previous activities prior to their departure from that country; nor have they been informed of any attempt to prevent the applicants from leaving Lebanon. Moreover, in 1991 a general amnesty was proclaimed in Lebanon covering, among others, political offences. Having regard to the current political situation in the country, the applicants' risk of being subjected to treatment contrary to Article 3 (Art. 3) due to the first applicant's alleged background in Lebanon is far from significant, especially as she had already stopped her military activities in 1984.         Secondly, as regards the first applicant's Christian faith and Armenian background, the Government have not been informed of any current persecution of Christians in Lebanon.         Finally, as regards the applicants' mental state, the Government refer, in particular, to the report by Dr. Nordström which they consider shows the absence of any obstacle to the enforcement at present of the expulsion order. The applicants' mental health at the time of the enforcement being decisive, the National Immigration Board may decide to stay the enforcement until further notice if their health is regarded as an obstacle to the enforcement.         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 (ibid., p. 37, para. 111).         Assuming that the applicants have exhausted domestic remedies in accordance with Article 26 (Art. 26) of the Convention, the Commission finds that no substantial grounds have been shown for believing that their return to Lebanon would subject them to a real risk of being treated contrary to Article 3 (Art. 3) of the Convention, either on account of the alleged background in that country of the first applicant and her parents, or on account of the first applicant's Christian faith.         As to the applicants' mental state, the Commission has had particular regard to the most recent expert medical reports of February 1994. In the light of these reports, it finds that no substantial grounds have been shown for believing that the applicants' return to Lebanon would violate Article 3 (Art. 3) of the Convention on account of their current state of health.         It follows that this complaint, as a whole, must be rejected as being manifestly ill-founded, within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.     In regard to their impending expulsion, the applicants also claim that their entire family is lawfully resident in Sweden. Allegedly, they have no relatives left in Lebanon, as the first applicant's missing husband is thought to be dead.         The Commission has examined this complaint under Article 8 (Art. 8) of the Convention, which reads:         "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 Government consider this complaint to be manifestly ill- founded, primarily as it has not been shown that the first applicant's husband and father of the other applicants has disappeared or that he is no longer living in Lebanon. The Government further refute the applicants' allegation that they have no other relatives left in Lebanon. They finally emphasise that the first applicant's parents and one of her sisters were granted residence permits in Sweden because of the impossibility at the time to enforce expulsions to Lebanon.         The Commission considers that the refusal to grant the applicants a residence permit in Sweden raises the question whether there has been a lack of respect for their family life. It recalls that the notion of "respect" enshrined in Article 8 (Art. 8) of the Convention is not clear-cut. This is the case especially where the positive obligations implicit in that concept are concerned. Its requirements will vary considerably from case to case according to the practices followed and the situations obtaining in the Contracting States. In determining whether or not such an obligation exists, regard must be had to the fair balance that has to be struck between the general interest and the interests of the individual, as well as to the margin of appreciation afforded to the Contracting States (Eur. Court H.R., B. v. France judgment of 25 March 1992, Series A no. 232-C, pp. 47 et seq., paras. 44 et seq.).         The Commission further recalls that in the field of immigration "Contracting States enjoy a wide margin of appreciation in determining the steps to be taken to ensure compliance with the Convention with due regard to the needs and resources of the community and of individuals". A State's obligation to admit to its territory foreign relatives of its citizens will vary according to the particular circumstances of the persons involved. Moreover, "as a matter of well-established international law and subject to its treaty obligations, a State has the right to control the entry of non-nationals to its territory" (Eur. Court H.R., Abdulaziz, Cabales and Balkandali judgment of 28 May 1985, Series A no. 94, pp. 33-34, para. 67).         As regards the facts of the present case, the Commission observes that the applicants are Lebanese citizens, who entered Sweden in October 1990 following the alleged disappearance of their husband and father. In January 1990 the first applicant's younger sister and her daughter were granted a permanent residence permit in Sweden and subsequently also the sister's husband. The first applicant's parents were granted permanent residence permits in Sweden in July 1990 and in September 1991, respectively. A further sister of the first applicant was granted a residence permit in Norway in 1993. The first applicant's brother and aunt appear to be living in Lebanon.         The Commission recalls that the existence or not of family life falling within the scope of Article 8 (Art. 8) will depend on a number of factors and on the circumstances of each particular case (e.g. No. 12402/86, Dec. 9.3.88, D.R. 55 p. 224). Even if the applicants' husband/father has disappeared, the Commission primarily considers that they must be regarded as an independent family unit. Thus, neither the first applicant's relationship with her parents and sister in Sweden, nor the other applicants' relationship with their grandparents and aunt in that country, could be regarded as "family life" within the meaning of Article 8 (Art. 8). Even assuming that the applicants' relationship with the whole of their extended family could be considered "family life", the Commission observes that, contrary to the applicants' contention, these family members are not all resident in Sweden.         In these circumstances, the duties imposed by Article 8 (Art. 8) of the Convention cannot be considered as extending to an obligation on the part of Sweden to grant the applicants a residence permit (cf., mutatis mutandis, the above-mentioned Abdulaziz, Cabales and Balkandali judgment, p. 34, para. 68).         The Commission concludes that there are no elements in the present case which would indicate that the respondent Government exceeded their margin of appreciation in striking a fair balance between the general interests of the community and the individual interest of the applicants, when refusing them a residence permit in Sweden. The Commission concludes, therefore, that there has been no lack of respect for their family life.         It follows that this complaint must also be rejected as being manifestly ill-founded, within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.     Finally, the Commission has examined the application in so far as it has been submitted under Articles 2, 5, 9, 10, 11 and 14 (Art. 2, 5, 9, 10, 11, 14) of the Convention. However, insofar as the matters complained of have been substantiated and are within its competence, the Commission finds that they do not disclose any appearance of a violation of those provisions.         It follows that this part of the application must be rejected in accordance with Article 27 (Art. 27) of the Convention.         For these reasons, the Commission, by a majority,         DECLARES THE APPLICATION INADMISSIBLE.         Secretary to the Commission            President of the Commission              (H.C. KRÜGER)                           (C.A. NORGAARD)