European Court of Human Rights



 

                      AS TO THE ADMISSIBILITY OF

 

                      Application No. 23634/94

                      by Ibrahim TANKO

                      against Finland

 

 

      The European Commission of Human Rights sitting in private on

19 May 1994, the following members being present:

 

           MM.   C.A. NØRGAARD, President

                 S. TRECHSEL

                 A. WEITZEL

                 F. ERMACORA

                 G. JÖRUNDSSON

                 A.S. GÖZÜBÜYÜK

                 J.-C. SOYER

                 H.G. SCHERMERS

                 H. DANELIUS

           Mrs.  G.H. THUNE

           MM.   F. MARTINEZ

                 C.L. ROZAKIS

           Mrs.  J. LIDDY

           MM.   L. LOUCAIDES

                 J.-C. GEUS

                 M.P. PELLONPÄÄ

                 B. MARXER

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 J. MUCHA

                 E. KONSTANTINOV

                 D. SVÁBY

 

           Mr.   H.C. KRÜGER, Secretary to the Commission assisted by

Mr. L. BERG.

 

      Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

 

      Having regard to the application introduced on 4 March 1994 by

Mr. Ibrahim TANKO against Finland and registered on 8 March 1994 under

file No. 23634/94;

 

      Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

 

-     the observations submitted by the respondent Government on

      4 April 1994 and the observations in reply submitted by the

      applicant on 24 April 1994; and

 

-     the additional observations submitted by the applicant on

      5 May 1994 and the additional observations in reply submitted by

      the Government on 10 May 1994;

 

      Having deliberated;

 

      Decides as follows:

 

THE FACTS

 

      The applicant is a citizen of Ghana born in 1957. He is a

bricklayer by profession. Before the Commission he is represented by

Ms. Kirsi Tarvainen, a lawyer of the Refugee Advice Centre in Helsinki.

 

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

summarised as follows.

 

Particular circumstances of the case

 

      On 1 April 1988 the applicant was allegedly arrested and detained

for two days by his employer on suspicion of having participated in a

demonstration arranged by Muslims at his work place. During his

detention he was allegedly assaulted. He allegedly managed to escape

from detention with the help of a friend.

 

      The applicant left Ghana for Burkina Faso on 5 April 1988,

leaving his family behind in Ghana. From Burkina Faso he continued on

the same day to Libya. In Libya he remained until 10 April 1989, when

he left for Tunisia. On 27 April 1989 he left Tunisia for Turkey, from

where he went to Cyprus on 30 April 1989. On 1 May he returned to

Turkey and on 6 May 1989 he went back to Cyprus. On 9 May 1989 he again

returned to Turkey, from where he went to Syria. On 19 September 1989

he left Syria for Egypt, from where he went to Saudi-Arabia on

8 March 1990. In June 1990 he returned to Egypt.

 

      On 22 September 1990 he left Egypt for Finland, where he

immediately requested asylum and a residence permit. This was refused

by the Ministry of the Interior (sisäasiainministeriö, inrikes-

ministeriet) on 13 November 1992.

 

      The applicant appealed, referring, inter alia, to the fact that

in the autumn of 1992 it had been discovered that he is suffering from

glaucoma, an eye illness, which had most likely been caused by the

assault to which he had allegedly been subjected during his detention

in Ghana. The appeal was rejected by the Asylum Board (turvapaikka-

lautakunta, asylnämnden) on 10 February 1993 after it had obtained a

negative opinion from the Ministry of the Interior.

 

      On 8 June 1993 the Ministry of the Interior ordered the

applicant's expulsion. The applicant's appeal against the expulsion

order was rejected by the Supreme Administrative Court (korkein

hallinto-oikeus, högsta förvaltningsdomstolen) on 11 February 1994.

 

      In a report of 24 August 1993 submitted by ophthalmologist A.V.

the following is stated in regard to the applicant's illness:

 

      (translation from Finnish)

 

      "[The applicant's illness] requires regular ophthalmological

      controls and probably an operation in the near future. The

      operation might have to be carried out at very short notice. It

      requires at least the resources of a university hospital and

      could not successfully be carried out in [Ghana]. [If the

      applicant is not operated on], the suppression of [his] illness

      will require continuous medication. If the medication is

      interrupted [due to] its uncertain availability in [Ghana], ...

      [the applicant] might lose his eyesight. [H]e might suffer severe

      pain and his eye might have to be removed. [An eye removal could

      only be carried out] by a hospital specialised in ophthalmology.

      ..."

 

      In a further medical report of 22 February 1994 A.V. stated that

a sudden increase of the pressure in the applicant's eye might render

him blind and necessitate an operation. A.V. further confirmed that the

applicant was awaiting examination at the University Hospital of

Helsinki in order to have his need for an operation determined.

 

      On 31 March 1994 the Ministry of the Interior decided to postpone

the enforcement of the applicant's expulsion order until a possible

operation has taken place and his necessary follow-up treatment has

been concluded.

 

      A medical report of 27 April 1994, submitted by ophthalmologist

P.P. of the Helsinki University Hospital in regard to the applicant's

disease, concludes as follows:

 

(translation from Finnish)

 

      " ... [The applicant] suffers from a secondary glaucoma in

      his left eye. ... The eye pressure is normal with [his]

      current medication. [There is] no need for an operation or

      laser treatment. The applicant [should] continue his

      [present] medication. ... [As from now on he should]

      undergo an ophthalmological examination twice a year and

      later possibly once a year. ..."

 

      In a further medical report of 5 May 1994 P.P. confirmed that the

applicant's illness could for the time being be treated with eye drops

twice a day and that an operation was therefore not required. No

prediction as to possible further treatment needed by the applicant

could be made at present. An ophthalmological examination was

recommended in about six months.

 

      In the light of the medical reports of 27 April and 5 May 1994

the Ministry of the Interior on 9 May 1994 revoked its decision of

31 March 1994 and considered that the applicant's expulsion could be

carried out.

 

Relevant domestic law

 

      The 1991 Aliens' Act (ulkomaalaislaki 378/91, utlänningslag

378/91) provides that this Act, any provisions of a lower rank and

international treaties by which Finland is bound shall be applied to

aliens' entry into and departure from Finland. In the application of

the Act aliens' rights shall not be unnecessarily restricted (section

1, subsections 1 and 3).

 

      An alien who has entered Finland without a residence permit may

be granted a fixed-term residence permit if he is in need of protection

or if there are strong humanitarian or other particular reasons for

issuing such a permit (section 20, subsection 1, para. 3).

 

      Whenever the deportation of an alien is being considered, all

relevant circumstances must be taken into account and, at least the

duration of his stay in Finland, his family or other ties with that

country and, if criminal behaviour would form the basis for his

deportation, the character of his offence or offences (section 41,

subsection 1).

 

COMPLAINTS

 

1.    The applicant complains that the enforcement of his expulsion

would subject him to a risk of losing his eyesight in view of the

inadequate facilities for treating him and possibly operating on him

in Ghana. He invokes Article 3 of the Convention.

 

2.    On 9 March 1994 the applicant supplemented his application by

complaining that his return to Ghana would also constitute a lack of

respect for his physical integrity and thereby for his private life,

as guaranteed by Article 8 of the Convention.

 

3.    In his observations of 9 March 1994 the applicant also invoked

Article 14 of the Convention in conjunction with the above-mentioned

provisions, given that his return to Ghana would interrupt his care

merely on the basis that he is no longer lawfully resident in Finland.

 

PROCEEDINGS BEFORE THE COMMISSION

 

      The application was introduced on 4 March 1994 and registered on

8 March 1994.

 

      On 7 March 1994 the Commission decided, pursuant to Rule 36 of

the Commission's Rules of Procedure, that it was desirable in the

interests of the parties and the proper conduct of the proceedings not

to return the applicant to Ghana until the Commission had had an

opportunity to examine the application. The Commission further decided,

pursuant to Rule 48 para. 2 (b), to bring the application to the notice

of the respondent Government and to invite them to submit written

observations on its admissibility and merits with reference to Articles

3 and 8 of the Convention.

 

      The Government's observations were submitted on 4 April 1994.

 

      On 15 April 1994 the Commission prolonged its indication under

Rule 36 until 20 May 1994.

 

      The applicant's comments on the Government's observations were

submitted on 24 April 1994.

 

      Additional observations were submitted by the applicant on

5 May 1994 and by the Government on 10 May 1994.

 

THE LAW

 

1.    The applicant complains that the enforcement of his expulsion

would subject him to a risk of losing his eyesight in view of the

inadequate facilities for treating him and operating on him in Ghana.

He invokes Article 3 (Art. 3) of the Convention which reads:

 

      "No one shall be subjected to torture or to inhuman or degrading

      treatment or punishment."

 

      The Government consider that this complaint is manifestly

ill-founded. No substantial grounds have been shown for believing that

the applicant, due to the current state of his illness and his

allegedly insufficient possibilities of obtaining adequate care in

Ghana, would face a real risk of being subjected to treatment contrary

to Article 3 (Art. 3), should he be returned to that country. The

applicant's assertion that the care facilities in Ghana are

insufficient is only corroborated by the statement of ophthalmologist

A.V. dated 24 August 1993. His opinion, however, cannot in this respect

be regarded as authoritative.

 

      The applicant considers that he has shown that his present

treatment and regular ophthalmological examinations are necessary and

that an interruption of this care would lead to severe pain and

possibly to the loss of his eyesight. Ghana is a poor developing

country and the applicant has no financial means of his own. The

effects of his expulsion would therefore be serious and irrevocable and

subject him to inhuman treatment. Should an operation be considered

necessary, it is uncertain when this could take place in Finland and

how long his recuperation would last. Both his individual situation at

that stage and the general situation in Ghana at that time would be

uncertain.

 

      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 give rise to

an issue under Article 3 (Art. 3) of the Convention, and hence engage

the responsibility of that State under 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 to

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 to give rise to a breach of

Article 3 (Art. 3) (ibid., p. 37, para. 111). The Commission does not

exclude that a lack of proper care in a case where someone is suffering

from a serious illness could in certain circumstances amount to

treatment contrary to Article 3 (Art. 3).

 

      In the present case the Commission observes, however, that the

most recent expert opinions concerning the applicant's disease conclude

that for the time being he is not in need of an operation, but that he

should continue to receive his present medication. On the evidence

before it concerning both his individual situation and the general

situation in Ghana, the Commission does not find it established that

the applicant could not obtain this medication in that country or bring

it with him when returned there. The Commission also notes that the

applicant's family is residing in Ghana. For the above reasons, there

are no substantial grounds for believing that he would be exposed to

a real risk of being subjected to treatment contrary to Article 3

(Art. 3) of the Convention, if expelled to that country in his present

state of health.

 

      It follows that this aspect of the application must be rejected

as being manifestly ill-founded within the meaning of Article 27 para.

2 (Art. 27-2) of the Convention.

 

2.    The applicant also considers that his return to Ghana would

constitute a lack of respect for his physical integrity and thereby his

private life, as guaranteed by Article 8 (Art. 8) of the Convention.

This provision reads as follows:

 

      "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 Government primarily submit that Article 8 (Art. 8) of the

Convention is not applicable in the case, given that neither the

Convention nor any of its Protocols guarantee any explicit or implicit

right to obtain medical care. In the alternative, the Government

consider that the interference with the applicant's private life caused

by the enforcement of the expulsion order would be in accordance with

the law, pursue the legitimate aim of preventing disorder, would be in

the interests of the economic well-being of the country and, finally,

would be proportionate to those aims and thereby necessary in a

democratic society.

 

      In the applicant's view it cannot be argued that every expulsion

of an alien would be necessary in pursuance of the legitimate aim of

maintaining public order. In his case there is no indication that

public order would be jeopardised if he were permitted to remain in

Finland until his necessary care has come to an end.

 

      The Commission considers that the refusal to grant the applicant

asylum or a residence permit in Finland raises the question whether

there has been a lack of respect for his private life. It recalls that

the notion of "respect" enshrined in Article 8 (Art. 8) is not clear-

cut. This is the case especially where the positive obligations

implicit in that concept are concerned. Its requirements will vary

considerably from case to case according to the practices followed and

the situations obtaining in the Contracting States. In determining

whether or not such an obligation exists, regard must be had to the

fair balance that has to be struck between the general interest and the

interests of the individual, as well as to the margin of appreciation

afforded to the Contracting States (Eur. Court H.R., B. v. France

judgment of 25 March 1992, Series A no. 232-C, pp. 47 et seq., paras.

44 et seq.). In the field of immigration "Contracting States enjoy a

wide margin of appreciation in determining the steps to be taken to

ensure compliance with the Convention with due regard to the needs and

resources of the community and of individuals" (Eur. Court H.R.,

Abdulaziz, Cabales and Balkandali judgment of 28 May 1985, Series A no.

94, pp. 33-34, paras. 67 and 68).

 

      In the present case the Commission refers to the factual

conclusions it has already drawn when examining the application under

Article 3 (Art. 3) of the Convention above. In the light of these

conclusions, it also finds no elements indicating that the respondent

Government would exceed their margin of appreciation in striking a fair

balance between the general interests of the community and the

individual interests of the applicant, should he be returned to Ghana.

The Commission concludes, therefore, that his return to that country

would not in his present state of health amount to a lack of respect

for his private life.

 

      It follows that this aspect of the application must also be

rejected as being manifestly ill-founded within the meaning of Article

27 para. 2 (Art. 27-2) of the Convention.

 

3.    The applicant has finally invoked Article 14 (Art. 14) of the

Convention in support of his application. This provision reads as

follows:

 

      "The enjoyment of the rights and freedoms set forth in this

      Convention shall be secured without discrimination on any ground

      such as sex, race, colour, language, religion, political or other

      opinion, national or social origin, association with a national

      minority, property, birth or other status."

 

      The Commission recalls that Article 14 (Art. 14) of the

Convention prohibits discrimination in the securement of Convention

rights and freedoms. Article 14 (Art. 14) has no independent existence,

since it has effect solely in relation to the "rights and freedoms"

safeguarded by those provisions (Eur. Court H.R., Inze judgment of 28

October 1987, Series A no. 126, p. 17, para. 36).

 

      The Commission has found the application to be manifestly

ill-founded under both Articles 3 and 8 (Art. 3, 8) of the Convention.

In the light of the factual circumstances upon which those findings

were made, the Commission also finds no elements in the case which

might disclose any appearance of discriminatory treatment of the

applicant compared to others in a comparable situation to his.

Therefore no issue under Article 14 (Art. 14) of the Convention arises

in the present application.

 

      It follows that this aspect of the case must also 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 Commission            President of the Commission

 

       (H.C. KRÜGER)                         (C.A. NØRGAARD)