AL-DABBAGH v. SWEDEN



                      AS TO THE ADMISSIBILITY OF

                      Application No. 36765/97

                      by Zewar Akram Qasim AL-DABBAGH

                      against Sweden

      The European Commission of Human Rights sitting in private on

18 September 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

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 J. MUCHA

                 D. SVÁBY

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 P. LORENZEN

                 K. HERNDL

                 E. BIELIUNAS

                 E.A. ALKEMA

           Mrs.  M. HION

           MM.   R. NICOLINI

                 A. ARABADJIEV

           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 26 June 1997 by Zewar Akram Qasim Al-Dabbagh

against Sweden and registered on 1 July 1997 under file No. 36765/97;

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

of Procedure of the Commission;

      Having regard to the observations submitted by the respondent

Government on 23 July 1997 and the observations in reply submitted by

the applicant on 27 August 1997;

      Having deliberated;

      Decides as follows:

THE FACTS

      The applicant is an Iraqi citizen born in 1956.  He resides in

Stockholm.  Before the Commission he is represented by Mr Per Stadig,

a lawyer practising in Stockholm.

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

summarised as follows.

      In September 1986 the applicant arrived in Sweden with his wife

and two children, born in 1983 and 1984.  A third child was born in

Sweden in 1991.  Until 18 March 1994 the applicant had a permit to

reside in Sweden to pursue undergraduate and postgraduate studies in

orthopaedic surgery.  He also worked as an assistant surgeon at the

Karolinska hospital in Stockholm.  The applicant's studies were

financed by the Iraqi State.  However, in May 1992, the Ministry for

Higher Education in Baghdad informed the Iraqi Embassy in Stockholm

that the Ministry was no longer responsible for the applicant's stay

in Sweden.

      In March 1994 the applicant and the other members of his family

lodged applications for asylum with the National Immigration Board

(Statens invandrarverk).  The applicant claimed that it was no longer

possible for him to return to Iraq, as he had failed to return as

agreed in September 1991 to resume his work as a surgeon in the city

of Mosul.  As a result, he had been suspended from his medical post and

would have to pay back twice the amount he had received from the Iraqi

State during his studies in Sweden.  Further, as he had disregarded a

call-up for military service during the Gulf War, he would risk

imprisonment.

      In a statement of 12 July 1994, the Swedish Security Police

(Säkerhetspolisen; hereinafter "SÄPO") recommended that the asylum

applications be rejected.

      On 13 January 1995 the Immigration Board referred the

applications to the Government with a recommendation that they be

rejected.  The Board noted that the applicant's family had lived in

Sweden for many years.  However, they had known from the outset that

their stay was of a temporary character.  In any event, their

connections to Sweden were of minor importance since security reasons

spoke against granting their applications.  In this respect, the Board

had regard to the conclusions made by SÄPO.  The Board also called into

question the applicant's credibility in claiming that he risked

punishment by Iraqi authorities as, in November 1992, his passport had

been renewed at the Iraqi Embassy in Stockholm.

      In a statement to the Government of 5 June 1997, SÄPO mentioned

some of the applicant's alleged acquaintances and gave an account of

certain activities in which he was supposed to have taken part.  From

the point of view of security, SÄPO recommended that his application

be rejected.  In the proceedings before the Government, only SÄPO's

conclusion was disclosed to the applicant.  However, after the

communication of the present application to the Government, the

statement has been made available in its entirety to the applicant and

the Commission.

      The applicant denied the allegations that he was a security risk

and expressed concern about the fact that he had not been informed

about the grounds for this accusation.  Allegedly, the applicant had

been slandered by an Iraqi person who had submitted false information

to SÄPO.  The applicant claimed that, during his first years in Sweden,

he maintained contact with the Iraqi Embassy since, as a student, he

was dependent on the Iraqi State for their economic support and

approval of his stay in Sweden.  Later he had been consulted, in his

capacity as a medical doctor, by the staff of the Embassy.  He had also

assisted as an interpreter when Iraqi citizens had sought medical help

in Sweden.  However, his contacts with the Embassy had been

substantially reduced after the Iraqi invasion of Kuwait.  His

relations with Iraqi authorities had generally deteriorated on account

of his failure to respond to the call-up for military service.  The

renewal of his passport was not remarkable; under Iraqi law, the

Embassy had to renew a passport on request.  The applicant had not

applied for asylum before, as he feared that his uncle would risk

reprisals.

      By decision of 19 June 1997, the Government rejected the

applicant's application and ordered his deportation.  Moreover, a ten

year prohibition on return was issued.  The Government gave, inter

alia, the following reasons:

(Translation)

      "The information in the case shows that [the applicant] for

      a long time has enjoyed the confidence of the Iraqi regime

      and that, apparently, he has not had any real aversion to

      his native country.  Among other things the economic

      support [the applicant] has received from Iraq, the

      acknowledged contacts with the Iraqi Embassy in Stockholm

      and the renewal of the passport support this conclusion.

      As regards the latter, the Government point out that an

      asylum seeker by such an act normally is considered to have

      expressed a wish to avail himself of the protection of his

      native country.  The Government consider that the

      applicant's explanation in this respect is unconvincing.

      The Government thus conclude that there is reason to call

      into question also [the applicant's] subjective fear of

      persecution in his native country.  In addition, the

      Government find it remarkable, notwithstanding the

      explanation given, that [the applicant] did not apply for

      a permit to settle in Sweden in connection with the war in

      Kuwait - and already at this point in time declared to the

      Swedish authorities the risks he now claims to face upon

      return to Iraq - but chose to wait until 1994.  In these

      circumstances, the credibility of the reasons given by [the

      applicant] for not wanting to return to Iraq is further

      reduced.

      Moreover, [the applicant's] statements in regard to, inter

      alia, the reasons for his contacts with Iraqi

      representatives in recent years and for his present

      unwillingness to return to Iraq are as such vague and imprecise.

      They are neither of such a convincing character that they can be

      taken at face value.  Considering that neither [the applicant]

      nor [his wife] and children appear to have expressed a wish to

      surrender their Iraqi passports, it must be considered doubtful,

      also for this reason, whether they still do not wish to avail

      themselves of the protection of their native country.

Finally, as regards the information given by [SÄPO] concerning the

applicant, the Government consider that it reaches the degree of

certainty and strength which should be required to refuse a residence

permit on grounds of security."

      The Government concluded that the applicant was not a refugee or,

for any other reason, in need of protection.  Accordingly, he was not

entitled to a residence permit under Chapter 3 of the Aliens Act

(Utlänningslagen, 1989:529).  Furthermore, there were no humanitarian

or other reasons to allow him to remain in Sweden.  He should thus be

expelled in accordance with Chapter 4, Section 3 of the Aliens Act.

      However, by the same decision, the Government granted the

applicant's wife and children permanent residence permits.  The

Government found that, as it could not be excluded that the children

would sustain permanent injury if expelled to Iraq, they should be

allowed to stay in Sweden on humanitarian grounds.  As a consequence,

also their mother should be allowed to stay.

      The applicant later requested the Supreme Administrative Court

(Regeringsrätten) to reopen the case.  As there had been no oral

hearing, the proceedings allegedly contravened relevant Swedish law.

Further, the Government's decision had violated Articles 3, 6 and 8 of

the Convention.

      On 26 June 1997 the Supreme Administrative Court rejected the

applicant's request.

      After the Commission had indicated to the respondent Government

that it was desirable that the applicant should not be deported until

the Commission had had an opportunity to examine the present

application, the National Immigration Board, by decision of

2 July 1997, stayed the enforcement of the expulsion order pending the

Commission's examination.

      On 3 August 1997 the applicant was admitted for psychiatric care.

On 20 August the applicant's wife, who was six months pregnant, had a

miscarriage, allegedly caused by the present stressful situation.

COMPLAINTS

1.    Invoking Article 3 of the Convention, the applicant claims that

he risks imprisonment and torture upon return to Iraq as he failed to

return to Iraq as agreed in September 1991 and disregarded the call-up

for military service during the Gulf War.  Moreover, it has probably

come to the attention of the Iraqi authorities that, during the

applicant's stay in Sweden, he has been in contact with opponents of

the Iraqi regime.

2.    Further, the Government's decision to expel the applicant while

allowing the other family members to stay in Sweden will allegedly

result in the disruption of the family, in violation of Article 8 of

the Convention.

3.    Finally, the applicant claims that the case in question concerned

his family's right to live together and thus their civil rights within

the meaning of Article 6 of the Convention.  As the case has been

decided by the Government, the applicant and his family have not been

given a fair hearing by an independent tribunal as required by that

Article.  In this connection, the applicant further refers to the fact

that no hearing was held in the case and that he was not informed of

the evidence used against him before the decision was taken.

PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced on 26 June 1997 and registered on

1 July 1997.

      On 1 July 1997 the Commission decided, pursuant to Rule 36 of the

Commission's Rules of Procedure, to indicate to the respondent

Government that it was desirable in the interest of the parties and the

proper conduct of the proceedings not to return the applicant to Iraq

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 Government and to invite

them to submit written observations on the admissibility and merits.

      The Government's observations were submitted on 23 July 1997.

The applicant replied on 27 August 1997.

THE LAW

1.    The applicant claims that he risks imprisonment and torture upon

return to Iraq.  He invokes Article 3 (Art. 3) of the Convention, which

provides the following:

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

      degrading treatment or punishment."

      The respondent Government submit that Swedish authorities, for

many years, have refrained from expelling people to Iraq as, due to the

conditions prevailing in that country, it is not possible to predict

measures and attitudes of Iraqi authorities in relation to their own

nationals.  Iraqi nationals are normally granted residence permits

unless there are objections from the viewpoint of security.  Thus, had

the applicant's case been a "normal asylum case", the applicant

certainly would have been granted a permit to reside in Sweden.

      The Government contend, however, that the present complaint is

manifestly ill-founded, as the applicant has not shown substantial

grounds for believing that there exists a real risk of treatment

contrary to Article 3 (Art. 3) of the Convention.  The Government

generally refer to the reasoning included in the recommendation of the

National Immigration Board and the Government's decision of 19 June

1997.  In addition, the Government, inter alia, submit that the

applicant left Iraq with the Iraqi authorities' approval and financial

support.  In May 1992 the Ministry for Higher Education in Baghdad

stated that it was no longer responsible for the applicant's stay in

Sweden.  Thus, the Government contend, there is nothing to indicate

that the applicant had been on any but good terms with the Iraqi

authorities until May 1992 by which time the Gulf War had long since

come to an end.  The Government further assert that the applicant was

fully aware of the conditions pertaining to the financial support given

by the Iraqi authorities.  When he chose not to return as agreed in

September 1991, he knew that he was breaking the agreement and the

consequences of his action.  It could therefore be argued that the

applicant knowingly placed himself and his family in their present

position.  In regard to the applicant's statement that he has had no

other contacts with the Iraqi Embassy or with persons tied to the Iraqi

regime than those indicated by him in the asylum proceedings, the

Government submit that SÄPO is in possession of information of another

character.  In this respect, reference is made to SÄPO's statement of

5 June 1997, which, so the Government submit, contains convincing

evidence in support of the contention that the applicant enjoys the

confidence of the present Iraqi regime.

      The applicant submits that, in view of the situation in Iraq and

the Swedish authorities' policy not to return people to that country

save in exceptional cases, there has to be very strong evidence, in

those cases, that the return would not entail any risk of treatment

contrary to Article 3 (Art. 3) of the Convention.  No such evidence has

been presented in the applicant's case.  On the contrary, the applicant

claims that he risks imprisonment and torture upon return to Iraq as

he failed to return to Iraq as agreed in September 1991 and disregarded

the call-up for military service during the Gulf War.  Moreover, it has

probably come to the attention of the Iraqi authorities that, during

the applicant's stay in Sweden, he has been in contact with opponents

of the Iraqi regime and has been openly critical of that regime.

Further, when applying for asylum in Sweden, he violated Iraqi laws.

He also refused to assist Iraqi authorities in finding a place where

Saddam Hussein's son could have surgery.  The applicant does not

dispute that, when arriving in Sweden as a student, he was not a

refugee.  However, already in 1991 when applying for an extension of

his residence permit he told the police that he and his family wanted

to stay in Sweden until the situation had been normalised.  The

situation did not normalise, however, and the applicant realised that

it would be very dangerous for him to return to Iraq.  He waited to

apply for asylum as long as possible as he was afraid that this could

harm either his or his wife's relatives in Iraq.  As to the statement

of SÄPO, the applicant submits that the information contained therein

is not clear.  He denies that he has had contacts or taken part in

activities that would make him a security risk.

      The Commission recalls that Contracting States have the right to

control the entry, residence and expulsion of aliens (cf., e.g., Eur.

Court HR, Vilvarajah and Others v. the United Kingdom judgment of

30 October 1991, Series A no. 215, p. 34, para. 102).  However, an

expulsion decision may give rise to an issue under Article 3 (Art. 3)

of the Convention, and hence engage the responsibility of the State,

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 or she 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).

      The Commission notes the practice of the Swedish authorities not

to expel people to Iraq due to the conditions prevailing in that

country unless there are objections from the viewpoint of security.

      Turning to the circumstances of the present case, the Commission

recalls that the applicant, before the Swedish authorities and the

Commission, has claimed that he risks imprisonment and torture in Iraq

mainly as he failed to report for military service during the Gulf War,

which ended in February 1991, and as he did not return as agreed to

Iraq in September 1991 to resume his work as a surgeon.  However, it

appears that, despite this alleged disobedience, the financial support

received by the applicant from Iraqi authorities was not discontinued

until May 1992.  Furthermore, his passport was renewed at the Iraqi

Embassy in Stockholm in November 1992.

      The applicant claims that his relations with Iraqi authorities

generally deteriorated after the invasion of Kuwait.  He has given an

account of his contacts and activities in later years.  In this

respect, the Commission notes that, apparently, he has not mentioned

his alleged refusal to assist Saddam Hussein's son to the Swedish

authorities.  More importantly, the Commission has regard to SÄPO's

statement of 5 June 1997.  Notwithstanding the applicant's comments,

the Commission finds that the information contained therein leads to

the conclusion that, on account of the applicant's relations with Iraqi

authorities, there are not substantial grounds for believing that the

applicant faces a real risk of being subjected to treatment contrary

to Article 3 (Art. 3) of the Convention in Iraq.

      It follows that this part of the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2.    The applicant also claims that the Government's decision will

result in the disruption of his family.  In this respect, he invokes

Article 8 (Art. 8) of the Convention, which 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 call into question whether the applicant's

expulsion will entail an interference with his right to respect for his

family life.  They argue that the applicant and his family have been

aware that they were allowed to stay in Sweden due to the applicant's

studies and that, therefore, they could not reasonably expect to be

able to settle in Sweden.  Furthermore, the Government recall that the

decision to grant residence permits to the applicant's wife and

children was based purely on humanitarian reasons and was intimately

related to the fact that the children had already spent a considerable

part of their lives in Sweden.  Allegedly, the decision should be

regarded as a privilege which may be enjoyed or discarded.  The

applicant is free to continue his family life in Iraq or in any other

country which is willing to receive him and his family.

      Should, however, the Commission find that the intended expulsion

would entail an interference with the applicant's rights under Article

8 (Art. 8) of the Convention, the Government submit that the

interference would be justified under Article 8 para. 2 (Art. 8-2).

They maintain that the expulsion order pursues legitimate aims referred

to in that paragraph, namely the interests of national security, the

prevention of crime and the protection of the rights and freedoms of

others.  Allegedly, there are no elements in the present case which

indicate that the Government's  margin of appreciation in striking a

fair balance between the general interests of the community and the

individual interest of the applicant will be exceeded when the

expulsion order is carried out.

      The applicant submits that the Government's decision to refuse

one member of the family a residence permit while granting the others

such permits is in itself a violation of Article 8 (Art. 8) of the

Convention.  The family has lived in Sweden for eleven years and the

youngest child was born in Sweden.  They cannot return to Iraq.

Further, the applicant will not be allowed to enter and reside in a

third country after having been expelled from Sweden as a security

risk.  The permits given by the Government to the other family members

should not be regarded as a privilege but as something the Government

had to grant in order to comply with Swedish law and international

conventions.  Moreover, the applicant's expulsion is not necessary in

the interests of national security as there are no security risks

involved.  Further, if the applicant has committed any crimes in Sweden

he should have been brought to trial at a much earlier date.

      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).

      The Commission notes that the Government's decision of

19 June 1997 does not prevent the applicant's wife and children from

following the applicant to Iraq.  Having regard to its above

conclusions in regard to the complaint lodged under Article 3 (Art. 3)

of the Convention, the Commission does not find that the wife and the

children would be unable, on grounds of personal security, to move to

Iraq.  However, the Commission takes into account that the family has

lived in Sweden since 1986, that the two eldest children arrived in

that country at the age of 3 and 2, respectively, and that the youngest

child was born in Sweden in 1991.  Recalling the Government's

conclusion, in the above decision, that it could not be excluded that

the children would sustain permanent injury if expelled to Iraq, the

Commission finds that their removal from Sweden would involve great

hardship.  As, consequently, the applicant's expulsion would jeopardise

the continued family life, the expulsion could be considered as an

interference with the applicant's right to respect for his family life

under Article 8 para. 1 (Art. 8-1) of the Convention.  It is therefore

necessary to ascertain whether the expulsion would satisfy the

conditions of Article 8 para. 2 (Art. 8-2).

      The Commission first finds that the expulsion order has been

issued under the relevant provisions of the Aliens Act and is thus "in

accordance with the law".  Further, the Commission considers, in view

of all the information submitted in the case, that the enforcement of

the order would pursue the legitimate aims adduced by the Government.

      The necessity criterion implies the existence of a pressing

social need and, in particular, requires that the measure must be

proportionate to the legitimate aims pursued.  It has to be determined

whether with regard to the intended expulsion a fair balance is being

struck between the relevant interests, in the present case the

applicant's right to respect for his family life, on the one hand, and

the interest of national security, the prevention of crime and the

protection of the rights and freedoms of others, on the other.  Regard

should further be had to the margin of appreciation afforded to the

Contracting States (cf., e.g., Eur. Court HR, Boughanemi v. France

judgment of 24 April 1996, Reports 1996-II, No. 8, pp. 609-610,

paras. 41-42).

      The Commission recalls the conclusion made by the Government in

its decision of 19 June 1997 and based on the information provided by

SÄPO that the applicant should be refused a residence permit on grounds

of security.  Taking into account that same information and the margin

of appreciation left to the Swedish Government, the Commission is

satisfied that the Government's decision is supported by relevant and

sufficient reasons.

      Accordingly, notwithstanding the difficulties faced by the other

family members in the event of the applicant's expulsion from Sweden,

the Commission finds that the Swedish authorities have not failed to

fulfil their obligation to strike a fair balance between the relevant

interests.  Thus, the interference with the applicant's right to

respect for his family life is justified under Article 8 para. 2

(Art. 8-2) of the Convention in.

      It follows that this part of the application is also manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

3.    Finally, the applicant claims that the case in question concerned

his family's right to live together and thus their civil rights within

the meaning of Article 6 (Art. 6) of the Convention.  As the case has

been decided by the Government, the applicant and his family have not

been given a fair hearing by an independent tribunal as required by

that Article.  In this connection, the applicant further refers to the

fact that no hearing was held in the case and that he was not informed

of the evidence used against him before the decision was taken.

      Article 6 (Art. 6) of the Convention reads, in relevant parts,

as follows:

      "1.  In the determination of his civil rights and

      obligations or of any criminal charge against him, everyone

      is entitled to a fair and public hearing ... by an

      independent and impartial tribunal ..."

      The Commission recalls its established case-law according to

which procedures applied by public authorities to determine whether an

alien should be allowed to stay in a country or should be expelled do

not involve the determination of civil rights within the meaning of

Article 6 para. 1 (Art. 6-1) of the Convention (cf., e.g., No.

13162/87, P. v. the United Kingdom, Dec. 9.11.87, D.R. 54, p. 211).

      Noting furthermore that the procedures applied in the applicant's

case did not determine any criminal charge against him, the Commission

finds that Article 6 (Art. 6) does not apply to the present complaint.

      The Commission has examined this complaint also under Article 1

of Protocol No. 7 (P7-1) to the Convention which states as follows:

      "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.

      2.  An alien may be expelled before the exercise of his

      rights under paragraph 1. a, b and c of this Article, when

      such expulsion is necessary in the interests of public

      order or is grounded on reasons of national security."

      The Commission notes that the Government was the only body to

examine the merits of the applicant's case, the Supreme Administrative

Court only deciding whether the case should be reopened.  However, the

Commission finds that, even assuming that the applicant had rights

under Article 1 para. 1 (Art. 1-1) that he could not exercise, his

expulsion is justified under para. 2 as being grounded on reasons of

national security.

      It follows that this part of the application is also manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

      For these reasons, the Commission, unanimously,

      DECLARES THE APPLICATION INADMISSIBLE.

        H.C. KRÜGER                          S. TRECHSEL

         Secretary                            President

     of the Commission                    of the Commission

 

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