FOURTH SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 34566/04
by Francis GOMES
against Sweden
The European Court of Human Rights (Fourth Section), sitting on 12 October 2004 as a Chamber composed of:
SirNicolas Bratza, President,
MrM. Pellonpää,
MrL. Garlicki,
MrJ. Borrego Borrego,
MrsE. Fura-Sandström,
MsL. Mijović,
MrD. Spielmann, judges
and Mr M. O'Boyle, Section Registrar,
Having regard to the above application lodged on 29 September 2004,
Having regard to the interim measure indicated on 1 October 2004 to the respondent Government under Rule 39 of the Rules of Court,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Francis Gomes, is a Bangladeshi national born in 1966 and currently living in Sweden. He is represented before the Court by Mr Gazi Ziauddin, a lawyer practising in Bromma.
A. The circumstances of the case
1. The period between 1986 and 2000
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant used to be a member of the Bangladesh Sharbahara party (hereinafter “the party”), an oppositional left-wing party. Due to his political involvement he was arrested and jailed in 1986 and subjected to repeated torture. He was released after 15 days.
On 18 November 1992 a sentence of life imprisonment with hard labour was imposed on him by the Dhaka Judge Court for illegal possession of arms. However, according to the applicant, the verdict was an attempt to put an end to his political activity.
The applicant left Bangladesh on 6 May 1993 and came to Sweden where he applied for political asylum. His application was rejected by the then Immigration Board (Invandrarverket) on 17 June 1994 and by the Aliens Appeals Board (Utlänningsnämnden) on 7 February 1996, which concluded that the applicant would have the opportunity to receive a fair trial upon return to Bangladesh, and that political activity did not, as such, entail persecution by the authorities in Bangladesh. The applicant was sent back to Dhaka in April 1996.
Upon arrival in Bangladesh the applicant was arrested. Before being questioned a member of the military made the secret sign of the Sharbahara party. During the questioning, the soldiers said they had been looking for him and they wanted to know whether he was Francis Gomes, member of the Sharbahara party. He was again tortured badly and transferred to a prison from which he escaped in December 1996, with the help of a party friend. In spite of the torture he did not reveal his identity, which is, the applicant claims, probably why the sentence of life imprisonment was not executed. After having escaped he lived in hiding but worked for the party.
The applicant was arrested at a party conference in Jehore in April 1997, after which he was jailed and repeatedly tortured. After eight months' imprisonment a party friend helped him to escape. After his escape he found out that he had been charged with the murder of another prisoner. He again lived in hiding but continued to work for the party. He distributed leaflets and could work quite freely. During a demonstration in May 1998 he was again arrested and tortured. He thinks that he escaped sometime in November or December 1998. This time also he was helped by a party member. He subsequently found out that a court in Dhaka had sentenced him to death in absentia on 3 March 1998 for the murder of which he had been accused in 1997 and that there was yet another murder accusation against him.
The party helped him to leave Bangladesh and he returned to Sweden on 24 November 1999, again applying for asylum. He submitted before the then Immigration Board that he risked being killed by his own party, because members who had been jailed were regarded as a security risk since they could reveal secret information concerning the party. His life was also threatened by Muslim fundamentalists since he was a Christian. Aside from the death sentences against him, the Government had ordered the police to shoot members of the Sharbahara party.
On 22 December 1999 the Immigration Board decided to reject the applicant's application for asylum. It made the following observations. The applicant had travelled to Sweden with a false passport and had not applied for asylum until this had been discovered. He had also submitted unclear information regarding the details of his journey and had thus tried to hide information relevant to the investigation. Considering his submissions that he had on numerous occasions been arrested and tortured, that a life sentence had not been executed because the authorities could not identify him, that he had in the meantime continued to work for the party, even quite freely, that he was persecuted by Muslim fundamentalists, and that he risked being executed by his party but that he had continuously been helped by the party to escape and in the end to leave the country, the Immigration Board concluded that the applicant was not credible. It also remarked that he had not been able to submit any documentation regarding his allegations and rejected his application.
Upon appeal, the Aliens Appeals Board, by a decision of 20 June 2000, granted the applicant a permanent residence permit. It reiterated that the applicant had been committed under the Act on Compulsory Psychiatric Care between 16 February 2000 and 20 March 2000, having been suicidal and diagnosed with potential PTSD, which had however not been confirmed. The applicant had also submitted a medical certificate concluding that it was probable that he had been subjected to torture as alleged. The Appeals Board deferred to the conclusions of the Immigration Board with regard to his credibility. However, due to his medical condition, the applicant was entitled to a permanent residence permit.
2. The criminal proceedings
The applicant's wife joined him in Sweden in May 2003 together with their daughter Sara, born in 1997. Sara is physically handicapped and dumb. Due to the torture the applicant had become impotent and his wife met another man. It is the applicant's understanding that they conspired to put him in jail. He was charged with aggravated violation of woman's peace (grov kvinnofridskränkning), it being alleged, inter alia, that on several occasions he had beaten his wife when she had refused to have sex with other men who had promised the applicant money, and had otherwise systematically abused her.
On 17 November 2003 the District Court (tingsrätten) of Stockholm convicted the applicant as charged. He was sentenced to one year's imprisonment with subsequent expulsion from Sweden and was forbidden to return before 17 November 2010. The applicant had not previously appeared in the police records and had not, as far as was known, been previously convicted. The court noted that according to the submissions of the Prison and Probation Authority (Kriminalvårdsmyndigheten), the applicant seemed to suffer from some kind of psychological problems and he had himself submitted that he took some medication. The Prison and Probation Authority had noted that an expert psychiatric evaluation could be useful before the determination of the penalty. Since, however, the applicant's public defender as well as the prosecutor had deemed such an evaluation unnecessary, the court decided not to order it, having heard the applicant during the hearing.
Concerning the issue of the applicant's expulsion, the Migration Board (Migrationsverket) submitted to the District Court that there was no obstacle to expelling the applicant to Bangladesh, as regards any risk of his being killed, tortured or persecuted. The court did not make any separate assessment in this respect but deferred to the conclusion of the Migration Board. It further noted that ever since the applicant had been granted a permanent residence permit in Sweden, he had received a social security allowance and had been on sick-leave due to psychiatric problems until May 2003. It therefore questioned to what extent he had acquired a real connection to Swedish society. Moreover, the violence of which he had been convicted had been aimed at one of his two family members, his only relatives in Sweden. The court held that, considering the nature of the violence and the applicant's ruthlessness, it could not be excluded that he would again commit a crime in Sweden. Having regard to his weak links with Sweden, as well as to the fact that he had had a residence permit for less than four years, the court held that he could be expelled.
Both the prosecutor and the applicant appealed against the sentence, and the applicant also appealed against the expulsion. On 5 March 2004 the Svea Court of Appeal (Svea hovrätt) raised the sentence to one year and six months' imprisonment but otherwise confirmed the verdict and agreed with the assessment of the District Court. On 11 May 2004 the Supreme Court (Högsta Domstolen) denied the applicant leave to appeal.
The applicant's expulsion was to be enforced on 5 October 2004. On 28 September 2004 the police authority decided that he should be taken into custody upon his release from prison on 30 September 2004, to await the execution of his expulsion order.
On 29 September 2004 the applicant submitted a petition to the Swedish Government, asking that the Government stay or quash the planned expulsion.
3. The evidence submitted
The applicant has submitted copies of Bangladeshi documents and translations thereof, made by a Mr David Albert, who was also a witness in the District Court called by the applicant. One of the documents is a “charge sheet”, according to which the claimant is the widow of a Mr Anisur Rahman. It is dated 20 September 2003. The preliminary report was apparently made on 31 May 1999. The charge sheet refers to the applicant as one of two perpetrators. It states that a body was found covered in blood and that all the evidence was sent to the court. The second document is a Magistrate's “court order”, dated 13 and 22 September 2004. It concerns a paragraph of the Bangladeshi Penal Code under which, according to the applicant, the penalty is death or life imprisonment. The document states that on 21 December 2003 the investigation group found the applicant, who was in hiding, to be guilty as charged. Upon the request of the prosecutor, a warrant for his arrest was issued. The document states at the end “Accused has been accepted”. The copies of the Bangladeshi documents are accompanied by a statement from a Mr Narayan Chandra Saha, LL.B., LL.M., senior advocate in the Dhaka and Gazipur Judge Court. The letter in English is dated 23 September 2004, addressed to the applicant and states inter alia the following.
“The punishment of the case might be either death sentence or life imprisonment and the facts of your absconding from the prosecution will contribute and confirm such depth of punishment. I understand quite well that a great unavoidable circumstances like torture and persecution which has been used for you in jail and the possibility of killing by the members of your “Sorbohara Party” compelled you to leave the country but the nature of the case is ignoring such facts of circumstances. By the fact in issue, you are the master mind and the authority of the event and the possibility of escaping is less as the procedural materials developed in the case.”
The applicant has further submitted transcripts from his medical journal and some medical certificates. In a transcript dated 17 August 1993 from the Centre for torture damaged persons at Karolinska Hospital (hereinafter “the Centre”), the doctor concluded that the applicant had many scars and other marks on his body which could very well be the result of certain of the alleged acts of torture. A new transcript from his medical journal at the Centre is dated 11 January 2000 and states that after his visit in 1993, the applicant submitted that he had been beaten, subjected to electric shocks, being burned with cigarettes, drenched with hot water, suffocated, had needles put under his fingernails and his fingernails pulled out, and subjected to strong light and high volume noise. In a certificate dated 19 January 2000, also from the Centre, Dr Erik Edston, a specialist in forensic medicine, noted that the applicant had acquired new injuries many of which were consistent with the scarring after cigarette-burns. It could not be excluded that some of the marks had been contracted due to disease, but it was less probable that the scars would have arisen due to accidents or that they had been self-inflicted. He concluded that it was probable that the applicant had been tortured or beaten as he alleged and that many of the torture methods mentioned would only occasionally leave any lasting marks. The torture described was furthermore to a great extent compatible with the Centre's previous experience of torture in Bangladesh.
In a certificate from the Centre dated 26 January 2000, Dr Hans Peter Søndergaard, chief physician and specialist in general psychiatry, noted that the applicant had urgent thoughts of suicide and was completely absorbed by the memories of traumatic experiences. He had further severe sleeping problems and difficulties eating. His speech was partly incoherent but he described electric torture in a manner indicating that he had experienced it.a
During a telephone conversation on 30 September 2004, the applicant's counsel submitted that the applicant had not been given any medical care or medication while in prison but that he still suffered from the same problems as in 2000.
COMPLAINTS
1. The applicant complains under Articles 2, 3 and 5 of the Convention that in Bangladesh he faces a risk of being subjected to the death penalty or life imprisonment and torture. The Sharbahara party is an underground party whose members are considered to be the enemies of the Government and, as a former member, he risks being persecuted and killed, not only by the Government but also by his former party members, since nobody is allowed to leave the party. He also runs a risk of being killed by Muslim fundamentalists since he is a Christian. He still suffers from PTSD.
2. The applicant complains that if expelled to Bangladesh, he will be separated from his daughter.
3. The applicant finally complains under Article 9 of the Convention that upon expulsion to Bangladesh, his right to freedom of thought, conscience and religion would be violated.
THE LAW
1. The applicant complains that his expulsion to Bangladesh would involve a violation under Articles 2, 3 and 5 of the Convention. The Court considers that the applicant's complaints, as submitted, fall to be examined exclusively under Articles 2 and 3 of the Convention. Article 2 reads as follows:
“Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.”
Article 3 reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
2. The applicant further complains that his expulsion to Bangladesh would separate him from his daughter. The Court observes that the complaint falls to be considered under Article 8 of the Convention, which reads:
“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 Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
3. The applicant finally complains that upon expulsion to Bangladesh his rights under Article 9 of the Convention would be violated. This provision reads as follows:
“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”
The Court notes firstly that the applicant has not claimed that his rights under Article 9 of the Convention were violated in Sweden. The issue raised by the complaint is thus whether the expulsion of the applicant to Bangladesh could give rise to the responsibility of the Swedish Government under the instant provision for treatment to which the applicant might be subjected in Bangladesh.
With regard to the applicant's freedom of thought and religion, the Court observes that, in so far as any alleged consequence in Bangladesh of the applicant's religion or political activity attains the level of treatment prohibited by Articles 2 or 3 of the Convention, it is dealt with under those provisions. The Court considers that the applicant's expulsion cannot separately engage the Swedish Government's responsibility under Article 9 of the Convention.
It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant's complaints under Articles 2, 3 and 8 of the Convention concerning his expulsion to Bangladesh;
Declares the remainder of the application inadmissible.
Michael O'BoyleNicolas Bratza
RegistrarPresident
Full & Egal Universal Law Academy