CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 14 avril 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. 23761/94                     by Yusuf, Sabriye and Edibe KÜLEN                     against Sweden        The European Commission of Human Rights sitting in private on 14 April 1994, the following members being present:             MM.   C.A. NØRGAARD, President                S. TRECHSEL                A. WEITZEL                F. ERMACORA                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                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 March 1994 by Yusuf, Sabriye and Edibe KÜLEN against Sweden and registered on 28 March 1994 under file No. 23761/94;        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 first and the second applicant are husband and wife and the third one is their daughter. They were born in 1930, 1934 and 1977, respectively and are all Turkish citizens. They are currently residing in Stockholm. Before the Commission they are represented by Mr. Leif Rydberg, a lawyer at Bergshamra.        The facts of the case, as submitted by the applicants, may be summarised as follows.        The applicants are Assyrian Christians from Idil in the province of Sirnak in the southeast of Turkey. Two of the first and the second applicant's sons are lawfully resident in Sweden. One of them received Swedish citizenship in 1993. Two further sons are resident in Switzerland. The first applicant also has three siblings who appear to be resident in Sweden.        The first applicant suffers from heart problems and diabetes.        In 1986 and 1990 the applicants requested a residence permit in Sweden in order to join the first applicant's mother there. This was refused.        On 6 November 1991 the applicants were granted a short-term visa for entering Sweden in order to attend the funeral of the first applicant's mother.        On 2 December 1991 the applicants requested asylum, alternatively a residence permit in Sweden. The first applicant alleged that in 1986 he had, under a threat of being killed, been forced to assist members of the Kurdish Workers' Party ("the PKK") in transporting weapons. In May 1989 he had been arrested together with some five other inhabitants of Idil. He claimed to have been tortured by the military in Diyarbakir, suspected of having assisted the PKK in smuggling weapons. He had allegedly been beaten with a truncheon and wooden sticks as a result of which one of his toes had been broken. He had been released after fifteen days.        In the asylum investigation the first applicant further stated that as from the autumn of 1989 up to the summer of 1991 he had been arrested on three further occasions, each time for a few days. During the first of these arrests he had allegedly been assaulted and during the second one again tortured. In connection with his release after the third arrest he had been informed by the military in Mardin that it had no evidence against him and that the military in Diyarbakir had also been informed accordingly. Subsequently the first applicant had refused to assist the PKK, who had then allegedly extorted money from him on five occasions under the threat of otherwise killing him unless he would comply with their demands. Following his refusal to comply with a sixth request for money he had received a death threat by mail. He had turned to the police, but in vain. The applicants had then decided to leave Idil.        On 29 October 1992 the National Immigration Board (statens invandrarverk) rejected the applicants' request. The Board mainly noted the indication by the military that it had no evidence against the first applicant and that this information had also been conveyed to the military in Diyarbakir. The Board therefore found no reason to believe that the first applicant would be persecuted by the authorities if returned to Turkey. The harassment to which he had been subjected by members of the PKK was not such as to warrant the granting of asylum to the applicants. Finally, their family ties with Sweden in the form of the first and second applicant's two sons were not considered so strong as to warrant the granting of residence permits.        On 5 February 1993 the Aliens Appeals Board (utlänningsnämnden) upheld the decision of the National Immigration Board.        In a further request for a residence permit lodged in 1993 the applicants also referred to their Christian belief. They also stated that their property in Idil had been taken by the Kurds.        This request was rejected by the National Immigration Board on 8 June 1993. The Board found that the general situation of Christians in Turkey did not warrant the granting of asylum to the applicants. Neither was the alleged deprivation of their possessions considered as persecution supported by the Turkish Government.        A further request by the applicants for a residence permit was rejected by the National Immigration Board on 14 September 1993.        In October 1993 the applicants requested the Supreme Administrative Court (Regeringsrätten) to re-open the proceedings before the Aliens Appeals Board, referring to the fact that certain documents submitted by them in the asylum proceedings had not been translated. This request was apparently rejected.        In December 1993 the applicants lodged a yet further request for a residence permit, referring, inter alia, to an incident in November 1993 when Turkish military forces burned down a village near Idil inhabited largely by Christians. They also referred to their allegedly difficult mental state.        This request was rejected by the National Immigration Board on 19 January 1994, considering that no new circumstances had been shown in the case.     COMPLAINTS        The applicants complain that their impending expulsion to Turkey would violate Articles 2, 3, 5, 8, 9, 10 and 14 of the Convention. They fear further persecution in that country on account of their Christian belief and assert that persecution of Christians is wide-spread there, as Turkey is a Muslim-dominated country. The applicants refer, in particular, to the death threat by the PKK directed against the first applicant and to the alleged deprivation by the PKK of their belongings in Turkey.        The applicants finally refer to the fact that two of the first and second applicant's sons are lawfully resident in Sweden.     THE LAW        The applicants complain about their impending expulsion to Turkey. They fear further persecution there on account of their Christian belief. They also refer to the fact that two of the first and the second applicant's sons are lawfully resident in Sweden. They invoke Articles 2, 3, 5, 8, 9, 10 and 14 (Art. 2, 3, 5, 8, 9, 10, 14) of the Convention.   (a)   The Commission has first 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., p. 34, 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).        The Commission concludes, on the evidence before it concerning both the applicants' individual background and the general situation in Turkey, that it has not been established that there are substantial grounds for believing that they would 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. In reaching this conclusion, the Commission also notes that the State which is to receive the applicants is a member of the Council of Europe and has accepted the right of individual petition in accordance with Article 25 (Art. 25) of the Convention.        It follows that this complaint must be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   (b)   The Commission has next considered the application as far as the applicants' family ties to Sweden have been invoked. It 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 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).        The Commission finally 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).          Turning to the present case, the Commission considers that it has not been established that those of the first and the second applicant's sons who are resident in Sweden would in any way be dependent on them or that the applicants would be dependent on their sons. Thus, the applicants' relationship with them cannot be regarded as "family life" within the meaning of Article 8 (Art. 8).        In the above 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, 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.   (c)   Finally, the Commission finds no appearance of any violation of Articles 2, 5, 9, 10 or 14 (Art. 2, 5, 9, 10, 14) of the Convention.        It follows that the complaints relating to these Articles must also 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)