AS TO THE ADMISSIBILITY OF
Application No. 28268/95
by Delbar BOLOURI
against Sweden
The European Commission of Human Rights sitting in private on
19 October 1995, the following members being present:
MM. S. TRECHSEL, President
H. DANELIUS
C.L. ROZAKIS
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
G.B. REFFI
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
Mr. M. de SALVIA, Deputy 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 30 June 1995 by
Delbar Bolouri against Sweden and registered on 21 August 1995 under
file No. 28268/95;
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 woman of Iranian citizenship. She is a Sunni
Muslim of Kurdish origin and was born in 1955. She is represented by
Mr. Manólis Nymark, a lawyer in Stockholm.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant arrived in Sweden on 28 October 1992 together with
her father, both holding a tourist visa. On 19 November 1992 she
requested asylum in Sweden. In the asylum interview she stated, inter
alia, that she had taken leave from her post at the University of
Medicine and Health in Tehran until 20 February 1993. She and her
father had had no problems with the authorities controlling departures
from the airport of Tehran. She had later reported her passport as
having been stolen in Sweden. After his arrival in Sweden, her father
had requested a residence permit in the country "which would permit him
to travel" between Iran and Sweden "without always having to obtain an
entry visa".
The applicant furthermore stated that she feared being executed,
tortured or otherwise persecuted, if she were to be returned to Iran.
She referred to her Kurdish origin, her sex and her membership of the
banned Democratic Party of Iranian Kurdistan ("DPIK"). She had joined
this party in 1979 and had mainly been distributing propaganda and
collecting money and clothes. As from 1982 she had been less active in
the party. Her husband, who had been shot on 24 November 1990, had also
been active in the DPIK.
The applicant alleged that up to her departure from Iran she had
been harassed almost daily by members of the Revolutionary Guard
wishing to know whether she was still politically active and showing
an interest in her relatives in Sweden. Moreover, in September 1992 she
had illegally visited relatives in "Kurdistan", where she had joined
others in attempting to voice a public protest against the Iranian
regime. When leaving for Sweden, the applicant had intended to spend
holidays there, but after her departure from Iran she had allegedly
been informed that the authorities had been searching for her at her
work place. She had therefore decided to request asylum, fearing that
her activities as a dissident had been unveiled as a result of her
attempt to start the protest in September 1992.
In support of her asylum request the applicant later referred,
inter alia, to a certificate issued on 17 December 1992 by the
Representative of the DPIK in Europe, stating that the applicant was
a "sympathiser" of the party. In a further letter of 3 February 1993
the Representative stated that the applicant had been an "underground
militant" of the party in Kurdistan.
The applicant's father returned to Iran on 22 April 1993. On his
return he was allegedly immediately questioned about his daughter by
members of the Revolutionary Guard. He later travelled to Sweden once
more.
On 14 February 1994 the National Immigration Board (Statens
invandrarverk) rejected the applicant's asylum request. The Board noted
that she had entered Sweden holding a valid passport and entry visa and
observed inconsistencies in the account of her background. It
furthermore found that she had been able to remain active in the DPIK
for a very long time without being unveiled, this having allegedly
happened only after her arrival in Sweden. It appeared therefore that
the Iranian authorities had not shown much interest in her.
In her appeal to the Aliens Appeals Board (Utlänningsnämnden) the
applicant added that she had been informed that her employment contract
had been terminated and that her salary had been seized. She was also
expecting a court judgment concerning an accusation that she had
committed an offence in office. She referred to a copy of a public
notice issued in February 1995 by the Board for Offences in Office
Committed by Staff of the University of Medicine and Health in Tehran.
Her name had appeared on the list. Those appearing on the list had been
ordered to report at the office of the Board within ten days; otherwise
a judgment by default would be rendered.
In a letter of 4 May 1994 the Scandinavian Representative of the
DPIK confirmed that the applicant had had clandestine contacts with the
party.
On 13 March 1995 the Aliens Appeals Board rejected the
applicant's appeal, considering in essence that her account of her
dissident activities was not credible. It noted her statement that
prior to her departure from Iran she had almost daily been contacted
by members of the Revolutionary Guard. It therefore found it very
unlikely that she could have remained politically active to the extent
alleged without such activites having been unveiled before she left for
Sweden. Moreover, she had left Iran holding a valid passport of that
country. Finally, the accusation that she had committed an offence in
office was to be seen in the light of the fact that she had been
granted leave from her work place only until February 1993.
In a certificate of 20 April 1995 another representative of the
DPIK in Europe stated that the applicant was a "sympathiser" of the
party and that her life would therefore be in danger, if she were
returned to Iran.
In June 1995 the applicant lodged a further request for a
residence permit, referring, inter alia, to a certificate of
28 June 1995 by another representative of the DPIK in Europe, stating
that the applicant was a "militant" of the party.
On 30 June 1995 the Aliens Appeals Board rejected the applicant's
further request.
On 5 July 1995 the applicant lodged a further request for a
residence permit, referring to her mental state. She invoked a report
by Dr. Michael Brune, a physician specialising in neurology. According
to Dr. Brune, the applicant was suffering from a long-lasting reactive
depression and the risk that she might commit suicide was therefore to
be taken into account during the enforcement of the expulsion order.
Dr. Brune also noted that the applicant had been severely injured by
grenade splinter. She had deep scars on her right arm and splinter
remained in her right chest. She was therefore still experiencing pain
and neurological injuries.
On 5 July 1995 the Aliens Appeals Board decided not to stay
enforcement of the expulsion order. Subsequently it appears to have
rejected the applicant's further request.
On 6 July 1995 the applicant was interviewed in a television
programme apparently in regard to her background in Iran and her fears
of being ill-treated on her return there.
On 7 July 1995 the applicant was expelled to Iran. She is now
living at a secret address in Tehran.
The applicant has a brother and sister, who live in "Kurdistan".
She has a further brother and two sisters, who all hold permanent
resident permits in Sweden, where they lived already at the time of her
arrival there in 1992.
The applicant visited Sweden already in 1986, also then holding
a tourist visa.
According to the 1989 Aliens Act (utlänningslag 1989:529), the
authorities must, when considering whether to refuse an alien entry or
to expel him or her, examine whether he or she can be returned to a
particular country or whether there are other special obstacles to the
enforcement of such a decision. If the enforcement meets no obstacles
under chapter 8, an alien is to be expelled or returned to his or her
country of origin or, if possible, to the country from which he or she
came to Sweden. If the decision cannot be put into effect in the manner
indicated above or if special reasons exist, the alien may be sent to
another country (chapter 8, sections 1-5).
COMPLAINTS
The applicant initially complained that, if returned to Iran, she
risked being tortured or subjected to other treatment contrary to
Article 3 of the Convention. She referred to her political background
in that country.
The above complaint has been maintained after the applicant's
expulsion. In her final application of 10 August 1995 she also refers
to the TV interview aired on 6 July 1995 which she fears has come to
the attention of the Iranian Embassy in Sweden. She also states that
she lacks the necessary means to obtain, in Iran, adequate care and
medical treatment for her arm injuries.
In her final application of 10 August 1995 the applicant also
considers that the excessive length of the proceedings in Sweden
subjected her to inhuman and degrading treatment and, at any rate,
resulted in ties being created between her and notably her siblings in
Sweden. Her expulsion therefore also constituted inhuman and degrading
treatment on these grounds, having regard to her fragile state of
health.
In her final application of 10 August 1995 the applicant also
considers that the weighing of the evidence presented by her to the
Aliens Appeals Board and the reasoning of that Board were contrary to
the recommendations issued by the United Nations High Commissioner for
Refugees and therefore subjected her to degrading treatment.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 30 June 1995 and registered on
21 August 1995.
On 5 July 1995 the Commission found no basis, under Rule 36 of
the Commission's Rules of Procedure, for an indication to the
respondent Government that it would be desirable in the interest of the
parties and the proper conduct of the proceedings before the Commission
not to expel the applicant to Iran until it had examined the
application further.
THE LAW
The applicant complains about her expulsion to Iran. She invokes
Article 3 (Art. 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 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., para. 103). A mere possibility of
ill-treatment is not in itself sufficient (ibid., p. 37, para. 111).
(a) The Commission has first examined whether the applicant's return
to Iran violated Article 3 (Art. 3) of the Convention, having regard
to her alleged political background in that country and the surrounding
circumstances. It notes the Swedish authorities' doubts as regards the
applicant's account of her background in this respect and observes, in
particular, that she was able to leave Iran holding a valid passport.
Also the discrepancies between the various written statements by the
DPIK concerning her alleged activities within that party call the
credibility of her account into question. The Commission therefore
shares the view of the Swedish authorities that she had not prior to
her expulsion shown that she would, on account of her alleged political
background, run a real risk of being subjected to treatment contrary
to Article 3 (Art. 3), if returned to Iran.
The Commission also attaches a certain importance to the fact
that the Swedish authorities appear to have gained considerable
experience in evaluating claims of the present nature by virtue of the
large number of Iranian asylum seekers in Sweden. It notes that
residence permits have in fact been granted in numerous cases and that
pursuant to chapter 8, section 1 of the Aliens Act the authorities are
obliged to consider essentially the same factors as are relevant to the
Convention organs' assessment under Article 3 (Art. 3) of the
Convention. The decision to expel the applicant appears to have been
made after careful examination of her case (cf. Eur. Court H.R., Cruz
Varas and Others judgment of 20 March 1991, Series A no. 201, p. 31,
para. 81, and, as regards expulsion to Iran, No. 20981/93,
P. v. Sweden, Dec. 8.4.93, unpublished).
(b) The Commission has next considered the applicant's assertion that
her state of health is "fragile" and that she lacks the necessary means
to obtain, in Iran, adequate medical treatment for her arm injuries.
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)
(No. 23634/94, Dec. 19.5.94, D.R. 77-A, p. 137). In the present case
it does not find it established, however, that the applicant could not
obtain the necessary medical treatment in her own country. Thus there
are no substantial grounds for believing that she was exposed to a real
risk of being subjected to treatment contrary to Article 3 (Art. 3) on
account of being expelled to Iran in her particular state of health.
(c) As regards the allegedly excessive length of the proceedings
before the Swedish authorities and the effects thereof on the
applicant's private and family life, the Commission finds no appearance
of any violation of Article 3 (Art. 3) of the Convention. The same is
true as regards the allegedly incorrect assessment by the Aliens
Appeals Board of the evidence adduced in support of the applicant's
claims.
It follows that the application must as a whole 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
(M. de SALVIA) (S. TRECHSEL)
Full & Egal Universal Law Academy