LUMUMBA proti Švédsku



AS TO THE ADMISSIBILITY OF

Application No. 22696/93

by Patrick LUMUMBA

against Sweden

The European Commission of Human Rights (Second Chamber) sitting

in private on 12 October 1994, the following members being present:

MM. S. TRECHSEL, President

H. DANELIUS

G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

MM. 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 September 1993

by Patrick LUMUMBA against Sweden and registered on 28 September 1993

under file No. 22696/93;

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 a Kenyan citizen, born in 1959 and currently

serving a prison sentence at Tidaholm, Sweden. He is a boxer by

profession. Before the Commission he is represented by Mr. Carl Magnus

Lilienberg, a lawyer practising in Stockholm.

The facts of the case, as submitted by the applicant, may be

summarised as follows.

Particular circumstances of the case

In the beginning of the 1980s the applicant entered Sweden. In

1981 he was expelled, his request for a residence and work permit

having been rejected. In 1982 the applicant was granted a short-term

residence and work permit and re-entered Sweden. This permit was

subsequently extended. From 1983 to 1990 he lived with a Swedish woman.

In 1985 a daughter was born to them. In 1990 his relationship with the

woman ended and his request for a permanent residence permit in Sweden

was rejected.

In November 1983 the District Court (tingsrätten) of Karlstad

convicted the applicant of assault and violation of domiciliary peace

and sentenced him to one month's imprisonment.

In April 1985 the Svea Court of Appeal (Svea hovrätt) convicted

the applicant of assault and illegal threat and sentenced him to four

months' imprisonment.

In December 1990 the Court of Appeal of Western Sweden (Hovrätten

för västra Sverige) convicted him of drunken driving and driving

without a driving licence and sentenced him to one month's

imprisonment.

On 3 May 1991 the District Court (tingsrätten) of Stockholm

convicted the applicant of assault, malicious damage as well as of

aggravated arson in combination with gross negligent manslaughter and

sentenced him to ten years' imprisonment. The District Court also

issued a deportation order and prohibited him from returning to Sweden.

It considered that in spite of the fact that his daughter was resident

in Sweden his ties to Sweden were not particularly strong. His

knowledge of Swedish was very limited, he had no permanent employment

and no financial means to support himself. On 27 September 1991 the

Svea Court of Appeal confirmed the applicant's conviction, but reduced

the sentence to six years' imprisonment. In maintaining the deportation

order and prohibition on return the Court of Appeal had special regard

to the applicant's criminal behaviour in Sweden, his weak ties to that

country and his lack of permanent employment there. On 8 November 1991

the Supreme Court (Högsta domstolen) refused him leave to appeal.

Subsequently the applicant lodged a petition with the Government,

requesting that the deportation order be revoked or that the

prohibition on his return be of only limited duration. He referred to

his close relationship with his daughter which would be interrupted if

the deportation order would be enforced. On 22 April 1993 the

Government rejected the petition.

The applicant is to be released on parole in November 1994.

Relevant domestic law

Under the 1989 Aliens Act (utlänningslag 529/89) an alien can be

deported on account of his criminal behaviour on certain conditions

prescribed in Chapter 4, Sections 7 and 10. When considering whether

to order an alien's deportation the Court shall take into account his

living and family conditions as well as the duration of his stay in

Sweden (Section 10, subsection 1).

A prohibition on return may be issued either for a certain period

of time or indefinitely (Chapter 4, Section 14). An alien who has been

prohibited from returning to Sweden may, nevertheless, be granted a

permit to visit the country for extremely important purposes. For

particular reasons, such a permit may be granted at the request of

someone other than the alien himself (Section 15).

If a judgment or a decision ordering the deportation of an alien

on account of his criminal behaviour cannot be enforced, the Government

may revoke the judgment or decision either wholly or partly (Chapter 7,

Section 16).

COMPLAINT

The applicant complains that his deportation to Kenya and the

related prohibition on his return to Sweden would, if enforced, violate

his right to respect for his family life. He claims to have a close and

continuous relationship with his daughter. As his relationship with the

mother of his daughter has ended, it is allegedly not possible for his

daughter to follow him to any other country. The enforcement of the

deportation order and the prohibition on return would therefore result

in a permanent disruption of his relationship with his daughter. He

invokes Article 8 of the Convention.

THE LAW

The applicant complains of his imminent deportation to Kenya and

prohibition on return to Sweden and refers to his relationship with his

daughter in the last-mentioned country. He invokes Article 8 (Art. 8)

of the Convention which provides:

"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 Contracting States are in

principle free to control the entry, residence and expulsion of aliens.

Expulsion of a person from a country in which close members of his

family live may, however, 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 considers that the applicant's deportation from

Sweden and the related prohibition on his return to that country would

interfere with his right to respect for his family life due to his

relationship with his daughter residing in Sweden. It must next be

examined whether this interference would be justified under the terms

of para. 2 of Article 8 (Art. 8-2). Under that paragraph 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 and it must be "necessary in a democratic society" for that aim

or those aims. The necessity criterion 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 deportation order was issued

"in accordance with the law". It also considers that the enforcement

of the deportation order would pursue a legitimate aim under Article

8 para. 2 (Art. 8-2), namely the interest of public safety and the

prevention of crime and disorder. As regards the question whether the

interference was "necessary in a democratic society" in pursuit of the

above- mentioned aims, the Commission takes note of the applicant's

criminal record in Sweden. One of his offences must be considered

particularly serious, namely the aggravated arson combined with gross

negligent manslaughter. The Commission further observes that, while the

applicant would, as a general rule, be prohibited from returning to

Sweden following the enforcement of the deportation order, this would

not prevent him or his daughter from applying for a short-term permit

enabling him to visit her there.

Taking into account the margin of appreciation left to the

Contracting States, the Commission concludes that the enforcement of

the deportation order would be justified under Article 8 para. 2

(Art. 8-2) of the Convention in that it can reasonably be considered

as "necessary in a democratic society" in pursuance of the above-stated

aims. Accordingly, the enforcement of the deportation order would not

violate Article 8 (Art. 8).

It follows that the application must 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, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)