Saarestik v. Sweden



AS TO THE ADMISSIBILITY OF

Application No. 16350/90

by Enno SAARESTIK

against Sweden

The European Commission of Human Rights sitting in private

on 6 September 1990, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ RUIZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

A.V. ALMEIDA RIBEIRO

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 23 March 1990

by Enno SAARESTIK against Sweden and registered on 27 March 1990 under

file No. 16350/90;

Having regard to the report provided for in Rule 40 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 citizen of the Soviet Union (Estonia), born

in 1966. He is presently in Sweden. Before the Commission the applicant

is represented by Mr. Hans Bredberg, a lawyer practising in Stockholm.

The applicant and his daughter came to Sweden on 3 July 1988

with a visa to stay in Sweden for 90 days. The applicant applied for

political asylum and a residence permit in Sweden on the ground that he

had refused to comply with a draft order for military service and that

if he were returned to the Soviet Union he would risk imprisonment for

desertion.

On 8 February 1990 the Government (the Ministry of Labour)

rejected the request for asylum and a residence permit and ordered that

the applicant and his daughter be expelled.

On 9 March 1990 the National Immigration Board (statens

invandrarverk) refused to stay the enforcement of the expulsion.

On 12 March 1990 the Immigration Board refused a fresh request

for a residence permit.

On 23 March 1990 the Immigration Board again refused to stay

the enforcement of the expulsion.

On 26 March 1990 the Immigration Board refused a new request

for a residence permit.

On 28 March 1990 the Immigration Board decided that the

enforcement of the expulsion order should be stayed until further

notice in view of the latest development in the Baltic States.

COMPLAINTS

1 The applicant complains that if he is returned to the Soviet

Union there is a risk that he will be subjected to torture or inhuman

or degrading treatment contrary to Article 3 of the Convention. He

states that, during military service, he has previously been subjected

to such treatment and has submitted a medical certificate.

2 The applicant also alleges a violation of Article 6 of the

Convention on the ground that, if returned, he would not be given a

fair hearing by an impartial tribunal as the legal system of the Soviet

Union does not meet those standards.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 23 March 1990 and registered

on 27 March 1990.

On 27 March 1990 the President of the Commission decided,

pursuant to Rule 36 of the Rules of Procedure, not to indicate to the

Government that the applicant should not be expelled to the Soviet

Union, pending the Commission's further examination of the case.

THE LAW

The applicant complains that his expulsion to the Soviet Union

would involve a violation of Articles 3 (Art. 3 ) and 6 (Art. 6) of

the Convention.

The Commission recalls that it is not normally for the

Convention institutions to pronounce on the existence of potential

violations of the Convention. A departure from that principle is made

in cases where an applicant claims that a decision to expel or

extradite him would, if implemented, be contrary to Article 3 (Art. 3)

by reason of its foreseeable consequences in the country of destination.

The Convention institutions will, however, only examine complaints of

potential violations where the expulsion or extradition is imminent.

In the present case, in view of the Immigration Board's

decision of 28 March 1990, there is no indication that the applicant's

expulsion to the Soviet Union is imminent.

In these circumstances, there is no appearance of a violation

of Article 3 (Art. 3) or Article 6 (Art. 6) of the Convention.

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

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)