Dalip Tahiri v. Sweden

 

Application by Dalip Tahiri against Sweden

European Commission of Human Rights
First Chamber Decision AS TO THE ADMISSIBILITY OF The European Commission of Human Rights (First Chamber) sitting in private on 11 January 1995, the following members being present:  

Mr.	C. L. ROZAKIS, President
Mrs.	J. LIDDY
MM.	F. ERMACORA
	E. BUSUTTIL
	M. P. PELLONPÄÄ
	B. MARXER
	B. CONFORTI
	N. BRATZA
	I. BÉKÉS
	G. RESS
	Mrs. M. F. BUQUICCHIO, 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 15 June 1994 by Dalip TAHIRI against Sweden and registered on 13 September 1994 under file NO. 25129/94; 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 facts of the case, as submitted by the applicant, may be summarised as follows. The applicant is a so-called Kosovo Albanian, born in 1971. He is a Muslim. He is at present residing at Lidköping, Sweden. Before the Commission he is represented by Mr. Haxhi Osmanaj, who is a free-lance journalist by profession. Before the applicant came to Sweden he lived with his family in the town Mushtisht in Suharek county, Kosovo, where he had been unable to continue his high school studies (gymnasieskolan) since the schools were closed. He was hereafter unemployed. The applicant submits that he became a member of an illegal political party called Beslidhja demokratike kombetare shiptare (BDKSH) which is working for Kosovo's secession from former Yugoslavia and its annexation to Albania. Furthermore, he submits that he was harassed by the Serbian police during an incident around New Year 1991/1992 where he was taken to the local police station and interrogated for three hours apparently due to his participating in a demonstration. The applicant also submits that he was called to serve in the Federal Yugoslav army on two occasions in June and once in July 1992. It was the Serbian police which came looking for him. However, he had managed to hide each time. Therefore, he decided to leave the country on 13 September 1992. The applicant came to Sweden on 17 September 1992 as a tourist. One of his brothers has been living in Sweden since 1989 whereas the rest of his family, i.e. his parents and his five other brothers and sisters are still in Kosovo. On 18 January 1993 the applicant requested that his tourist visa be prolonged. This was rejected by the National Immigration Board (Statens Invandrarverk, the "SIV") in May 1993 and he was requested to leave the country. On 20 June 1993 the applicant went to Norway and applied for asylum there. The Norwegian authorities rejected his request and the applicant was returned to Sweden. In Sweden the applicant then submitted a request for asylum. In his application he submitted, in addition to the above-mentioned facts, that he had left former Yugoslavia in order to avoid the draft orders as he feared being sent to the front in Bosnia or Croatia. The SIV held a hearing on 13 July 1993 where the applicant explained the above and added, inter alia, that he risked imprisonment in Kosovo if his membership of BDKSH would be disclosed. On 28 October 1993 the applicant requested an additional hearing and submitted new facts in support of his application. He now claimed that his family had been harassed by the Serbian police since the end of the 1980's. this had the effect that he was excluded from the school and his family was allegedly considered to be an enemy of the country by the Federal Committee of Internal Security. He had never been able to keep an employment for a longer period of time as the employers were harassed by the police when they employed him. The applicant also stated that the reason for the harassment was his membership, since 1984, of BDKSH. The applicant finally submitted that he feared long-term imprisonment for his refusal to serve in the army and his political activities in Kosovo and Sweden. On 4 February 1994 the SIV rejected the applicant's request for asylum. It noted that the new facts in support of his application were submitted by the applicant only a year after his arrival, which it found unacceptable as the applicant had had ample opportunities to submit this new information. The SIV, accordingly, did not find the applicant trustworthy. The SIV further stated that it considered the risk of persecution of draft evaders insignificant and in any event a possible punishment was not considered to be of such severity that it could justify asylum. Furthermore, the applicant did not, in the SIV' s opinion, run any risk of being sent to the front and, finally, the general conditions in Kosovo as such could not constitute a reason for granting asylum. The applicant appealed against this decision to the Aliens Appeals Board (Utlänningsnämnden). In his appeal he maintained the facts submitted to the SIV and in addition submitted a draft order of 20 August 1993 and a statement asserting that, since 8 January 1993, he had been living with a Swedish woman. By decision of 31 May 1994 the Board rejected the applicant's appeal. It found that the applicant could not be considered a refugee within the meaning of the Aliens Act (utlänningslagen). The Board also considered whether the alleged cohabitation with a Swedish woman could establish a ground on which a permission to remain in Sweden could be granted. It came to the conclusion that, when looking at the submitted information as a whole, the applicant had not been able to render credible that the cohabitation or attachment was of such a nature that a permission to remain in Sweden should be granted on that ground. On 7 June 1994 the applicant submitted a request for pardon (nådansökan) to the Government which by decision of 16 June 1994 refused to examine the request as the decision of the Aliens Appeals Board was not considered to concern a matter in which the Government could grant pardon. Following the introduction of his case with the Commission, the applicant requested the SIV to stay his planned expulsion. By decision of 20 October 1994 the SIV adjourned the expulsion proceedings pending the outcome of the applicant's case before the Commission.

COMPLAINTS

The applicant complains of a violation of Articles 3 and 6 of the Convention and Article 4 of protocol no. 4 to the Convention. As regards Article 3, he refers to the fact that he has refused to join the Federal Yugoslav army and to his political activities. He maintains that he risks up to 10 years imprisonment, torture, harassment and that he will be forced to do military service if he is expelled to Kosove. Furthermore, he submits that he has now married the Swedish woman and that they are expecting a child. Regarding Article 6 the applicant complains that his application for asylum cannot be examined by the administrative courts. Finally, regarding Article 4 of Protocol no. 4, the applicant complains that he is being expelled to Kosovo by Sweden in execution of a policy of expelling all asylum seekers and deserters from former Yugoslavia. He alleges that he is subjected to a collective expulsion and that the Swedish authorities' rejection of his application for asylum is a standard-form decision which has been given the appearance of an individual decision.

THE LAW

1. The applicant complains that, if returned to Kosovo, he risks being subjected to treatment contrary to Article 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 giver rise to an issue under Article 3 of 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 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 (ibid., p. 37, para. 111).

Before the Commission the applicant submits that upon return to Kosovo he risks torture, harassment, long-term imprisonment or to be sent to the front due to his refusal to follow the draft order and due to his political activities. To expel him would, therefore, constitute a breach of Article 3. Furthermore, he submits that he has allegedly married a Swedish woman which also renders the expulsion impossible.

The Commission recalls that in order to raise an issue under the provision invoked there should be a specific risk of treatment contrary to Article 3 of the Convention. In the present case, as submitted by the applicant, the Commission finds no substantiation as regards the allegations of torture and persecution or harassment of the applicant upon his return to Kosovo. Furthermore, the Commission finds that even assuming that the applicant would risk imprisonment for desertion, this possible punishment is not of such a kind as to raise an issue under Article 3. The applicant has failed to submit evidence which could lead the Commission to a different conclusion in the present case.

In view of the above, the Commission finds no substantiation of the applicant's claim that he would be exposed to a real risk of being subjected to treatment contrary to Article 3 of the Convention on his return to Kosovo. As to the argument concerning the marriage, the Commission considers that it does not raise an issue under Article 3 of the Convention. (cf. No. 12364/86, Dec. 17. 10. 86, D. R. 50 p. 280; No. 11017/84, Dec. 13.3.86, D. R. 46 p. 176 and No. 21576/93, Dec. 10. 9. 93; No. 22325/93, Dec. 8. 9. 93; No. 22508/93, Dec. 21. 10. 93; No. 22509/93, Dec. 21. 10. 93 and No. 23521/94, Dec. 5. 7. 94, unpublished).

Moreover, the Commission recalls from its case-law mentioned above that Chapter 8, section 1, of the Aliens Act imposes and absolute obligation on the enforcement authorities in Sweden to refrain from expelling an alien should the human rights situation in the receiving country constitute a firm reason to believe that he or she would be in danger of being subjected to capital or corporal punishment, or torture, in that country.

It follows that this part of the application must be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 of the Convention.

2. The applicant complains that his application for asylum cannot be examined by the administrative courts. He invokes Article 6 of the Convention which reads, as far as relevant, as follows:

"1.In determination of his civil rights or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law …."

However, the Commission has constantly held that the procedure followed by public authorities to determine whether an alien should be allowed to stay in a country, or should be expelled, does not involve the determination of civil rights and obligation s within the meaning of Article 6 para. 1 of the Convention (cr., for example, no. 13162/87, Dec. 9.11.87, D.R. 54, p. 211). The Commission finds that the applicant's application for asylum falls within this category of procedures which do not determine civil rights within the meaning of Article 6 of the Convention. Nor did the applicant's case involve the determination of a criminal charge.

Accordingly, the Commission rejects this part of the application as being incompatible ratione materiae with the provisions of the Convention, pursuant to Article 27 para. 2.

3. The applicant finally complains that the Swedish authorities, by using standard-form decision, are expelling asylum seekers from former Yugoslavia collectively. He invokes Article 4 of Protocol no. 4 to the Convention which reads as follows:

"Collective expulsion of aliens is prohibited."

The Commission recalls that it has previously held that collective expulsion must be understood as any measure compelling aliens, as a group, to leave a country, except where such a measure is taken on the basis of a reasonable and objective examination of the particular case of each individual alien of the group. Moreover, the Commission has held that in case of expulsion, the fact that a number of aliens receive similar decision does not lead to the conclusion that there is a collective expulsion when each person concerned has been able on an individual basis to put the arguments against his expulsion to the competent authorities (cf. No. 14209/88, Dec. 16. 12. 88, D. R. 59 p. 274).

The Commission notes that the SIV when deciding on the applicant's application for asylum took into consideration the specific facts which the applicant had submitted and made a specific decision based on the applicant's case for rejecting the application. Upon appeal the applicant had the possibility to present his objections to the refusal of his request for asylum. Subsequently, the Aliens Board reviewed the submitted personal facts and took an individual decision involving only the applicant's situation.

In these circumstances the Commission considers that the applicant was given an individual decision and finds that his possible expulsion does not reveal any appearance of a collective expulsion within the meaning of Article 4 Protocol no. 4 to the Convention.

It follows that this part of the application must be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 of the Convention.

For these reasons the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber	President of the First Chamber
(M. F. BUQUICCHIO)	(C. L. ROZAKIS)