CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 5 avril 1995

.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. 20002/92                       by Hussein CHARFA                       against Sweden         The European Commission of Human Rights (Second Chamber) sitting in private on 5 April 1995, the following members being present:              Mrs.   G.H. THUNE, Acting President            MM.    H. DANELIUS                  G. JÖRUNDSSON                  S. TRECHSEL                  J.-C. SOYER                  H.G. SCHERMERS                  F. MARTINEZ                  L. LOUCAIDES                  J.-C. GEUS                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY              Mr.    K. ROGGE, 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 2 March 1992 by Hussein CHARFA against Sweden and registered on 15 May 1992 under file No. 20002/92;         Having regard to :   -      the reports provided for in Rule 47 of the Rules of Procedure of       the Commission;   -      the observations submitted by the respondent Government on       19 May and 13 September 1994 and the observations submitted by       the applicant on 23 August and 5 September 1994;         Having deliberated;         Decides as follows:   THE FACTS         The applicant is a Lebanese citizen, born in 1963 and currently living in Lebanon. He is represented by Mr. Göran Gabrielson, a lawyer in Norrköping, Sweden.         The facts of the case, as submitted by the parties, may be summarised as follows.   Particular circumstances of the case         The applicant entered Sweden in August 1985. In January 1986 he was granted a permanent residence permit for humanitarian reasons. His request for refugee status was rejected and he did not appeal against this decision.         On 15 February 1987 the District Court (tingsrätten) of Eskilstuna convicted the applicant of assault and shoplifting and sentenced him to six months' imprisonment. The applicant had been found shoplifting in April 1986, but had escaped from the premises after having assaulted a shop detective. The prosecution's request that the applicant be deported was rejected. The applicant's appeal was rejected by the Svea Court of Appeal (Svea hovrätt) on 15 June 1987.         On 19 December 1987 the applicant was released on parole, his probation period expiring on 19 December 1988.         On 17 February 1988 the District Court of Eskilstuna convicted the applicant of aggravated assault and sentenced him to two years' imprisonment and deportation from Sweden. The District Court found that the applicant had stabbed a person in the throat. The applicant objected to being deported, stating that his wife, parents and siblings were all living in Lebanon but alleging that he would risk being killed by a militia if sent back there. The District Court noted that the applicant had not been granted refugee status and considered that the serious nature of his offence constituted exceptional grounds for ordering his deportation in accordance with Section 40 of the 1980 Aliens Act (utlänningslag 1980:376). The applicant was also prohibited from returning to Sweden before 1 January 1998.         On appeal the District Court's judgment was confirmed by the Svea Court of Appeal on 26 April 1988. The applicant did not seek leave to appeal to the Supreme Court (Högsta domstolen).         On 24 January 1989 the District Court of Hallsberg convicted the applicant of unlawful possession of narcotics and sentenced him to one month's imprisonment. The applicant was found to have been in possession of cannabis in the prison where he was serving his sentence.         On 2 March 1989 the applicant was released on parole and immediately detained with a view to being deported to Lebanon.         On 6 April 1989 the Government found no impediments to the enforcement of the deportation order. On 21 April 1989, however, the applicant was released from his detention, as it was not deemed possible to enforce the deportation order at that time.         In August 1989 the applicant met a stateless woman of Palestinian origin, whom he married later in the autumn of 1989. On 22 September 1989 she was granted a permanent residence permit in Sweden.         On 30 January 1990 the applicant was again detained with a view to being deported. On 1 February 1990 he again requested that the deportation order be quashed. Apart from the political grounds previously invoked he referred to his marriage and stated that a child was expected to be born to him and his wife in June 1990.         On 1 February 1990 the Government decided to stay enforcement of the expulsion order. On 15 March 1990 they granted the applicant a temporary residence permit, to expire on 30 September 1990 at the latest, on account of his ties to Sweden. These ties were considered as such particular reasons as prescribed in Chapter 7, Section 16 of the 1989 Aliens Act (utlänningslag 1989:529). The Court of Appeal's deportation order was, however, not quashed.         On 30 April 1991 the District Court of Eskilstuna convicted the applicant of dangerous driving and sentenced him to one month's imprisonment. The applicant was found to have driven a car with excessive speed through a densely populated area on 1 October 1990, thereby escaping a police car.         The applicant, represented by official counsel, appealed to the Svea Court of Appeal both against his conviction and the sentence imposed. He submitted that the offence should only be considered as reckless driving on account of which he should not be sentenced to imprisonment.         The applicant further requested the Government to quash the Court of Appeal's deportation order or extend his temporary residence permit. The request was refused on 23 May 1991. The Government noted that the applicant had again been sentenced to prison on account of an offence committed in Sweden and considered that he had thereby demonstrated "an obvious indifference with regard to other persons' lives or property". The Government further decided that the Court of Appeal's deportation order should be enforced.         On 11 June 1991 the applicant again requested the Government to quash the Court of Appeal's deportation order or issue a temporary residence permit enabling him to attend the appeal proceedings and the forthcoming birth of his second child. He further submitted that his wife would, on account of her Palestinian origin, be unable to settle in Lebanon. Reference was made to the fact that she had been granted a Swedish alien's passport. On 19 June 1991 the applicant supplemented his request by informing the Government that the Court of Appeal had scheduled the hearing of his appeal for 2 October 1991.         On 11 July 1991 the Government rejected the applicant's request.         On 5 September 1991 the applicant was detained with a view to being expelled. On 10 September 1991 he again requested the Government to quash the Court of Appeal's deportation order or issue a temporary residence permit. On 10 September 1991, however, the deportation order was enforced and on 12 September 1991 the Government rejected the applicant's request.         Subsequent to the enforcement of the deportation order the applicant's wife had a miscarriage in the eighth month of her pregnancy. Later, however, she had a second child together with the applicant.         The date for hearing the applicant's appeal was later changed from 2 October to 11 December 1991. On the latter date the Court of Appeal found that no hearing could be held, as the applicant had not been personally summoned to attend it.         On 5 March 1993 the Court of Appeal quashed the District Court's judgment, convicted the applicant of reckless driving and sentenced him to a fine. The judgment was rendered without an oral hearing, the Public Prosecutor having accepted the appeal.         On 5 April 1993 the applicant requested that his prohibition on return to Sweden be revoked or, alternatively, that he be granted a residence permit in Sweden in view of the light sentence imposed by the Court of Appeal. He further referred to his wife's status in Sweden and their two children.         On 10 June 1993 the request was rejected by the Government, who found no special reasons, as required by Chapter 7, Section 16 of the Aliens Act, for granting it.         In the summer of 1993 the applicant entered Sweden illegally. On 15 September 1993 he was detained with a view to being re-deported to Lebanon. The deportation was carried out on 21 October 1993.   Relevant domestic law         According to the 1980 Aliens Act, as in force until 1 July 1989, a court could order the deportation of an alien, if, for instance, he or she had been convicted of a criminal offence for which more than one year's imprisonment is prescribed. A deportation order could only be issued if, judging from the character of the offence and other circumstances, the alien could be assumed to pursue criminal activities in Sweden or if the offence of which he or she had been convicted was such that the alien should not be allowed to remain there (Section 40). When considering whether to order the deportation of an alien, the court had to consider his or her living and family conditions as well as the duration of the stay in Sweden. An alien who had held a residence permit for more than two years or who had lived in Sweden for more than three years when charges were brought against him or her could only be deported on exceptional grounds (Section 41). A deportation order issued in connection with the conviction of an alien was to include a temporary or permanent prohibition on his return to Sweden (Section 42).         An appeal against a deportation order issued by a court convicting the alien was to be lodged with the competent Court of Appeal and, with leave to appeal, to the Supreme Court (Section 64).         On 1 July 1989 the 1989 Aliens Act replaced the 1980 Aliens Act. If the Government finds, under the 1989 Act, that a judgment or a decision ordering the deportation of an alien on account of a criminal offence cannot be enforced or if, for other particular reasons, itshould no longer be in force, they may quash the judgment or decision either wholly or partly. In this connection the Government may also decide to grant the alien a residence and work permit. If the judgment or decision is not quashed, the Government may, for particular reasons, issue a temporary residence and work permit. The deportation order shall not be enforced while such a permit is valid (Chapter 7, Section 16, as amended by Act no. 1991:1573).         An alien who has been prohibited from returning to Sweden may, nevertheless, be granted a permit to visit the country in extremely important matters. For particular reasons, such a permit may be granted at the request of someone else than the alien himself (Chapter 4, Section 15).   COMPLAINTS   1.     (a)   In his submissions of 2 March 1992 the applicant complains under Article 8 of the Convention about his deportation on 10 September 1991 which separated him from his wife and child. In his submissions of 19 October 1993 the applicant complains that his second deportation which was to take place on 21 October 1993 would also violate Article 8.         (b)   In his submissions of 4 May 1992 the applicant complains of a further violation of Article 8 in that his detention prior to the enforcement of his deportation in 1991 as well as that deportation in itself led to his wife's miscarriage in the eighth month of her second pregnancy.   2.     (a)   In his submissions of 4 May 1992 the applicant complains that by his deportation on 10 September 1991 he was found guilty of an offence before his conviction of 30 April 1991 had acquired legal force. He invokes Article 6 para. 2 of the Convention.         (b)   In his submissions of 4 May 1992 the applicant also complains that he could not properly pursue his appeal against his conviction of 30 April 1991. Notably, he was not allowed to defend himself in person before the Court of Appeal. He invokes Article 6 para. 3 (c) of the Convention and Articles 1 and 2 of Protocol No. 7 to the Convention.   3.     In his submissions of 23 August 1994 the applicant finally complains that he had no effective remedy against the Government's decisions in 1991 and 1993 not to quash the Svea Court of Appeal's deportation order and to refuse his requests for a residence permit. He invokes Article 13 of the Convention.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 2 March 1992 and registered on 15 May 1992.       On 20 October 1993 the Commission (Second Chamber) found no basis, under Rule 36 of its Rules of Procedure, for an indication to the respondent Government that it would be desirable in the interest of the parties and the proper conduct of the proceedings before the Commission not to deport the applicant to Lebanon until the Commission had examined the application further.         On 2 March 1994 the Commission decided to bring the application to the notice of the respondent Government and to invite them to submit written observations on the admissibility and merits of the complaint that the applicant's deportations separated him from his family in Sweden in violation of Article 8 of the Convention.         Following an extension of the time-limit the Government's observations were submitted on 19 May 1994. After an extension of his time-limit observations in reply were submitted by the applicant on 23 August and 5 September 1994. Additional observations were submitted by the Government on 13 September 1994.         On 6 September 1994 the applicant was granted legal aid.   THE LAW   1.     (a)   The applicant complains under Article 8 (Art. 8) of the Convention about his deportations on 10 September 1991 and 21 October 1993.         The Government submit that the complaint is inadmissible for non- exhaustion of domestic remedies. The criminal proceedings resulting in the deportation order were terminated by the Svea Court of Appeal's judgment of 26 April 1988. The applicant's deportations were based on the deportation order included in that judgment. A deportation order issued as a sanction for criminal behaviour may be contested in the criminal proceedings. The applicant did not, however, request leave to appeal to the Supreme Court. The Government's right under Chapter 7, Section 16 of the 1989 Aliens Act to quash a deportation order issued by a court for criminal behaviour is a legal instrument comparable to that of pardon. It cannot thus be used in order to correct a failure to exhaust regular remedies. Moreover, under Swedish law the threshold for deporting a refugee is higher than that for deporting other aliens. However, the applicant did not appeal against the refusal to grant him refugee status in 1986.         In the alternative, the Government consider the complaint manifestly ill-founded.         The applicant submits that all effective domestic remedies have been exhausted. His complaint in essence concerns not the Svea Court of Appeal's deportation order of 1988 but the Government's refusals to prolong his residence permit issued in 1990. The Government's decisions were not comparable to refusals of pardon. They were fully comparable with other decisions made under the 1989 Aliens Act. His deportations should therefore be seen as separate from the Court of Appeal's deportation order issued in 1988. In any case, a request for leave to appeal to the Supreme Court against that order would have been unsuccessful. Moreover, at the time when he was granted his initialresidence permit in Sweden it was established practice not to grant Lebanese citizens refugee status. An appeal to the Government in this respect would therefore have lacked any prospects of success. For instance, the applicant's brother's appeal on this point was rejected.         The applicant maintains that his complaint is well-founded.         The Commission observes that the Government, when granting the applicant a short-term residence permit on 15 March 1990, did not quash the deportation order in the Svea Court of Appeal's judgment of 26 April 1988. In their decision of 23 May 1991 the Government again refused to quash that order. The applicant's deportations in 1991 and 1993 must therefore be considered as enforcement of the deportation order of 1988 and the related prohibition on his return which remains valid until 1998.         The Commission recalls that under Article 26 (Art. 26) of the Convention it may only deal with a complaint after all domestic remedies have been exhausted, according to the generally recognised rules of international law. An applicant must make normal use of remedies likely to be effective and adequate in respect of the matters complained of (cf. No. 10978/84, Dec. 14.10.86, D.R. 49 pp. 149, 155). Where doubts exist as to the effectiveness of a remedy, that remedy must be tried (No. 10148/82, Dec. 14.3.85, D.R. 42 p. 98; cf. also Eur. Court H.R., Cardot judgment of 19 March 1991, Series A no. 200, p. 18, para. 34).         The Commission notes that the applicant failed to seek leave to appeal to the Supreme Court against the Svea Court of Appeal's judgment of 26 April 1988 ordering his deportation. It has already found that his deportations were based on that judgment. In so far as his present complaint may be considered as related to the enforcement of that judgment as rendered in view of his conditions in Sweden at the time, the Commission considers that he has not exhausted all domestic remedies available to him under Swedish law. Moreover, an examination of the complaint in this respect does not disclose the existence of any special circumstance which might have absolved the applicant, according to the generally recognised rules of international law, from exhausting the remaining domestic remedy at his disposal.         The Commission observes that at the time when the applicant could have sought leave to appeal to the Supreme Court he had neither contracted marriage with his present wife nor had any child been born to them. In so far as his present complaint may be considered as related to the enforcement of the Svea Court of Appeal's judgment of 26 April 1988 despite his family conditions in Sweden in 1991 and 1993, the Commission considers that he was prevented from relying on those conditions in a possible request for leave to appeal to the Supreme Court which should have been lodged in 1988. In this respect the Government's objection must therefore be rejected.         The Commission recalls, however, that the Contracting States are in principle free to control the entry, residence and expulsion of aliens. Nevertheless, expulsion of a person from a country in which close members of his family live may amount to an unjustified interference with his right to respect for his family life as guaranteed by Article 8 (Art. 8) of the Convention (e.g., Eur. Court H.R., Moustaquim judgment of 18 February 1991, Series A no. 193, pp. 19 et seq., paras. 43 et seq.).         The Commission assumes that, in so far as the applicant was absolved from the obligation to exhaust domestic remedies, his deportations in 1991 and 1993 interfered with his right to respect for his family life within the meaning of Article 8 para. 1 (Art. 8-1). Under Article 8 para. 2 (Art. 8-2) such an interference must satisfy three conditions: it must be "in accordance with the law", it must pursue one or more of the aims enumerated in para. 2 (Art. 8-2) and it must be "necessary in a democratic society" for that aim or those aims. The necessity requirement implies the existence of a pressing social need and, in particular, requires that the measure be proportionate to the legitimate aim pursued (the above-mentioned Moustaquim judgment, pp. 18 et seq., paras. 37 et seq.). Regard should further be had to the margin of appreciation afforded to the Contracting States (Eur. Court H.R., Berrehab judgment of 21 June 1988, Series A no. 138, pp. 15-16, para. 28).         The Commission is satisfied that the deportations were "in accordance with the law". It also considers that they pursued a legitimate aim under Article 8 para. 2 (Art. 8-2), namely the prevention of crime.         As regards the question whether they were "necessary in a democratic society" in pursuit of the above-mentioned aim, the Commission observes that the applicant married and had children only after his deportation had been ordered in 1988. It is true that soon after his marriage in the autumn of 1989 the applicant's wife was granted a permanent residence permit in Sweden. Nevertheless, when the marriage was contracted the applicant's deportation order remained in force, although its enforcement had been postponed. Moreover, the Commission has found above that the temporary residence permit granted to the applicant in March 1990 before the birth of his first child did not render the deportation order of 1988 invalid. In these circumstances the Commission finds that due to his precarious links to Sweden at the time of establishing family life the applicant could not legitimately expect to be able to pursue that family life there. Nor has it been shown that the applicant's family did not have a practical and reasonable opportunity of accompanying or following him to Lebanon (cf., e.g., No. 11333/85, Dec. 17.5.85, D.R 43 p. 227).         The Commission finally notes that under Chapter 4, Section 15 of the 1989 Aliens Act the applicant may apply for a short-term residence permit enabling him to visit his family in Sweden even while the prohibition on his return to that country remains valid.         In these circumstances and taking into account the margin of appreciation left to the Contracting States, the Commission concludes that, in so far as the applicant is absolved from exhausting domestic remedies, his deportations were nevertheless justified under Article 8 para. 2 (Art. 8-2) of the Convention in that they could reasonably be considered "necessary in a democratic society" for the prevention of crime. Accordingly, the deportations were not in violation of Article 8 (Art. 8).         It follows that this complaint must be rejected partly for non- exhaustion of domestic remedies under Article 27 para. 3 (Art. 27-3) of the Convention and partly as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         (b)   In his submissions of 4 May 1992 the applicant complains of a further violation of Article 8 (Art. 8) in that his detention prior to the enforcement of his deportation in 1991 as well as that deportation in itself led to his wife's miscarriage in the eighth month of her second pregnancy.         The Commission has just found the applicant's complaint regarding his deportation in 1991 to be inadmissible. This finding is equally applicable to the present complaint, given that his detention was ordered with a view to his deportation, as permitted by Article 5 para. 1 (f) (Art. 5-1-f) of the Convention, and since his wife's alleged miscarriage was allegedly a further consequence of that deportation.         It follows that this complaint must also be rejected under Article 27 paras. 2 and 3 (Art. 27-2, 27-3) of the Convention.   2.     (a)   In his submissions of 4 May 1992 the applicant complains that by his deportation on 10 September 1991 he was found guilty of an offence before his conviction of 30 April 1991 had acquired legal force. He invokes Article 6 para. 2 (Art. 6-2) of the Convention.         The Commission recalls that the applicant's deportation in 1991 was based on the Svea Court of Appeal's judgment of 26 April 1988. Accordingly, there is no appearance of a violation of Article 6 para. 2 (Art. 6-2) of the Convention.         It follows that this complaint is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         (b)   In his submissions of 4 May 1992 the applicant also complains that he could not properly pursue his appeal against his conviction of 30 April 1991. In particular, he was not allowed to defend himself in person before the Court of Appeal. He invokes Article 6 para. 3 (c) (Art. 6-3-c) of the Convention and Articles 1 and 2 of Protocol No. 7 (P7-1, P7-2) to the Convention.         The Commission observes that the applicant was represented by official counsel throughout the criminal proceedings at issue which entailed a review of both his conviction and sentence. It further notes that although he could not appear in person before the Court of Appeal, this was, in any case, not to his detriment, as his appeal was granted. Accordingly, there is no appearance of a violation either of Article 6 para. 3 (c) (Art. 6-3-c) of the Convention or Article 1 or 2 of Protocol No. 7 (P7-1, P7-2).         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.   3.     In his submissions of 23 August 1994 the applicant finally complains that he had no effective remedy against the Government's decisions in 1991 and 1993 not to quash the Svea Court of Appeal's deportation order and to refuse his requests for a residence permit. He invokes Article 13 (Art. 13) of the Convention.         The Commission has just found the applicant's complaint that his deportations violated Article 8 (Art. 8) of the Convention to be inadmissible. It is, in any case, not required to decide whether or not the facts alleged by the applicant disclose any appearance of a violation of Article 13 (Art. 13) of the Convention, since it follows from Article 26 that it may only deal with a matter brought to its attention within six months from the decision complained of. The most recent of the decisions complained of dates back to 10 June 1993, while the complaint was lodged on 23 August 1994, that is more than six months later. An examination of the complaint does not disclose the existence of any special circumstances which might have interrupted or suspended the running of the six months' period.         It follows that this complaint must also be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.         For these reasons, the Commission, by a majority,         DECLARES THE APPLICATION INADMISSIBLE.         Secretary                              Acting President to the Second Chamber                     of the Second Chamber         (K. ROGGE)                                (G.H. THUNE)