CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 21 octobre 1997

.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. 34025/96                       by Abate GELAW                       against Sweden           The European Commission of Human Rights sitting in private on 21 October 1997, the following members being present:              Mr     S. TRECHSEL, President            Mrs    G.H. THUNE            Mrs    J. LIDDY            MM     E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H. DANELIUS                  F. MARTINEZ                  C.L. ROZAKIS                  L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  D. SVÁBY                  G. RESS                  C. BÎRSAN                  P. LORENZEN                  K. HERNDL                  E. BIELIUNAS                  E.A. ALKEMA                  M. VILA AMIGÓ            Mrs    M. HION            MM     R. NICOLINI                  A. ARABADJIEV              Mr     M. de SALVIA, 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 23 August 1996 by Abate Gelaw against Sweden and registered on 3 December 1996 under file No. 34025/96;         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 an Ethiopian citizen born in 1966.         The facts of the case, as submitted by the applicant, may be summarised as follows.         The applicant arrived in Sweden in 1992.   In 1994 he was granted a permanent residence permit on account of his relationship with Y.W., an Ethiopian woman living in Sweden, to whom he was engaged.   From his arrival he lived with that woman and her friend in a flat in Norsborg. The relationship with Y.W. ended in May 1995 and the applicant moved out of the flat.         By judgment of 16 October 1995, the District Court (tingsrätten) of Huddinge found the applicant guilty of having raped the above friend on 17 June 1995.   He was also convicted of molestation of another woman in September 1995.   The applicant was sentenced to two years and eight months in prison.   The court further ordered his expulsion from Sweden, in accordance with Chapter 4, Section 7 of the Aliens Act (Utlänningslagen, 1989:529).   In so deciding, the court noted that the applicant, according to a statement from the National Immigration Board (Statens invandrarverk), was not considered as a refugee and that he had not invoked, before the Board, any political grounds for not wanting to return to Ethiopia.   The court further took into account that the relationship with Y.W. had ended and that he had no other ties to Sweden.         The applicant appealed against the expulsion order to the Svea Court of Appeal (Svea hovrätt).   He stated that, with the help of members of Y.W.'s family, he and Y.W. were reconciled and were again engaged to be married.         On 21 November 1995 the appellate court upheld the expulsion order, finding that the renewed engagement did not constitute a sufficient family tie to refrain from expelling him.         It appears that the Supreme Court (Högsta domstolen) later refused the applicant leave to appeal.         On two occasions the applicant requested the Government to exercise its power under Chapter 7, Section 16 of the Aliens Act (Utlänningslagen) to annul the expulsion order.   By decisions of 2 May and 5 September 1996, the Government rejected the requests.         On 10 December 1996 the applicant married Y.W.         On 3 January 1997 he was released on probation.     COMPLAINTS         The applicant complains that, in view of his relationship with Y.W. and the time he had spent in Sweden, the expulsion order was not fair.   He invokes Article 12 of the Convention and Article 1 para. 1 of Protocol No. 7 to the Convention.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 23 August 1996.   The applicant requested the Commission to petition the Swedish Government to stay his expulsion.         On 6 December 1996 the Commission decided not to indicate to the Government, pursuant to Rule 36 of the Commission's Rules of Procedure, the measure suggested by the applicant.         The application was registered on 3 December 1996.     THE LAW         The applicant complains that, in view of his relationship with Y.W. and the time he had spent in Sweden, the expulsion order was not fair.   He claims that he does not have any relatives in Ethiopia and will not be able to support himself there.   Moreover, he allegedly belongs to a minority tribe in Ethiopia, Amhara, and has been a member of an Ethiopian anti-government organisation in Sweden.   He invokes Article 12 (Art. 12) of the Convention and Article 1 para. 1 of Protocol No. 7 (P7-1-1) to the Convention.         Article 12 (Art. 12) of the Convention reads as follows:         "Men and women of marriageable age have the right to marry       and to found a family, according to the national laws       governing the exercise of this right."         Article 1 para. 1 of Protocol No. 7 (P7-1-1) to the Convention provides the following:         "1.   An alien lawfully resident in the territory of a State       shall not be expelled therefrom except in pursuance of a       decision reached in accordance with law and shall be       allowed:       a.   to submit reasons against his expulsion,       b.   to have his case reviewed, and       c.   to be represented for these purposes before the competent       authority or a person or persons designated by that authority."         The Commission notes that the applicant married Y.W. on 10 December 1996.   Furthermore, the District Court's expulsion order was reviewed by the Court of Appeal and, in deciding not to grant leave to appeal, the Supreme Court.   On two occasions, the Government refused to annul the order.   The applicant has not claimed that he could not exercise his rights under Article 1 para. 1 of Protocol No. 7 (P7-1-1) before these bodies.         In these circumstances, the Commission finds that there is no evidence of a violation of the Articles invoked by the applicant.   The Commission, however, considers that his complaints fall to be examined also under Articles 3 and 8 (Art. 3, 8) of the Convention.         Article 3 (Art. 3) of the Convention states as follows:         "No one shall be subjected to torture or to inhuman or       degrading treatment or punishment."    The Commission notes,       in this regard, that the applicant originally was granted       a permit to reside in Sweden on account of his relationship       with Y.W.   He did not invoke any political grounds when       applying for that permit.   Neither did he refer to his       alleged membership of a minority tribe and an Ethiopian       anti-government organisation at any stage of the       proceedings in Sweden.   Moreover, he has not indicated that       these connections will lead to any adverse consequences for       him in Ethiopia.   The Commission, therefore, finds that no       grounds have been shown for believing that the applicant       will face the risk of being subjected to treatment contrary       to Article 3 (Art. 3).         Article 8 (Art. 8) of the Convention provides the following:         "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 recalls that the 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 (cf., e.g., Eur. Court HR, Moustaquim v. Belgium judgment of 18 February 1991, Series A no. 193, pp. 19-20, paras. 43-46).         Noting that the applicant lived with Y.W. since his arrival in Sweden in 1992, the Commission considers that the applicant's expulsion could be considered as an interference with his right to respect for his family life.   However, as the expulsion was ordered under the applicable provision of the Aliens Act following the applicant's conviction for rape and molestation, the interference was in accordance with the law and pursued the legitimate aim of preventing crime. Furthermore, having regard to the seriousness of the crimes in question and taking into account that the applicant and Y.W. had been reconciled and married at a time when the expulsion had already been ordered, the Commission concludes that the Swedish authorities have not failed to fulfil their obligation to strike a fair balance between the relevant interests.   Accordingly, the interference with the applicant's right to respect for his family life under Article 8 (Art. 8) of the Convention is justified in that it can reasonably be considered necessary in the interest of preventing crime.         It follows that the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission, by a majority,         DECLARES THE APPLICATION INADMISSIBLE.             M. de SALVIA                         S. TRECHSEL           Secretary                            President       to the Commission                    of the Commission