AS TO THE ADMISSIBILITY OF
Application No. 22408/93
by H.
against Sweden
The European Commission of Human Rights sitting in private on
4 March 1994, the following members being present:
MM. C.A. NØRGAARD, President
A. WEITZEL
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
H. DANELIUS
Mrs. G.H. THUNE
MM. F. MARTINEZ
C.L. ROZAKIS
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
I. BÉKÉS
J. MUCHA
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 1 August 1993 by
H. against Sweden and registered on 3 August 1993 under file No.
22408/93;
Having regard to:
- reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
29 September and 1 December 1993 and the observations in reply
submitted by the applicant on 8 and 28 November 1993;
- the parties' oral submissions at the hearing on 4 March 1994;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Syrian national born in 1965 and currently
resident at Härnösand, Sweden. He is a student. Before the Commission
he is represented by Ms. Lena Isaksson, a lawyer at Umeå.
The facts of the case, as submitted by the parties, may be
summarised as follows.
Particular circumstances of the case
According to the applicant, he took up his military service in
the Syrian army in 1986. He was later appointed group commander and
became responsible for a tank. While serving in Lebanon he was
imprisoned on 23 August 1988 for having refused to attack a refugee
camp. He was detained in the Chtoura prison in Lebanon and subsequently
in the Tadmur military prison in Syria. During his detention he was
allegedly assaulted and tortured three to four times a week. He was
hung from his feet and flogged.
In June 1989 the applicant signed, allegedly against his will,
a declaration that he would always obey military orders. His military
service was further prolonged from 30 to 60 months. He was then
released from prison and re-instated as a commander of a tank.
In July 1989 the applicant, according to his submissions,
participated in a battle against General Aoun's forces in eastern
Beirut. During this battle he and his crew jumped from their tank in
order to seek protection. The applicant then broke his leg and was
captured by Lebanese troops and brought to a military hospital.
The applicant further states that on 15 August 1989 he was forced
to announce his desertion in a television broadcast by a station for
the Lebanese forces. On 15 January 1990 he was discharged from the
military hospital and was subsequently cared for by his uncle. On
14 March 1990 the Lebanese army demanded that the applicant fight on
its side. Refusing to do so, he left his uncle to stay with some other
relatives. On 25 May 1990 the applicant escaped from Lebanon with the
help of smugglers.
The applicant arrived in Sweden on 5 August 1990 and applied for
asylum on 8 August 1990, referring to the risk of his being persecuted
as a deserter in Syria.
On 6 September 1991 the National Immigration Board (statens
invandrarverk) rejected the request and ordered the applicant's
expulsion. The applicant was further prohibited from returning to
Sweden before 1 October 1993. The Board stated:
(translation)
"[The Board] does not consider the information submitted by the
applicant concerning his desertion as credible. It is not likely
that a person who has refused to participate in fighting and who
is suspected of having sympathies with the Palestinians would be
reinstated in his military rank upon release, be entrusted with
the command of a tank and would participate in the planning of
an attack. The other reasons invoked ... are not sufficient in
order to conclude that ... he should be granted asylum. Making
an overall assessment, the Board considers that [the applicant]
is not entitled to asylum in accordance with Chapter 3, Section
1 of the [1989] Aliens Act (utlänningslag 1989:529). Nor are
there any other reasons for granting him a residence permit."
On 16 October 1992 the Aliens Appeals Board (utlänningsnämnden)
upheld the National Immigration Board's decision, stating:
(translation)
"... What has been shown in the case is not such [information]
that [the applicant] could be considered a refugee in accordance
with Chapter 3, Section 2 [of the 1989 Aliens Act] or a deserter
or draft evader (krigsvägrare) in accordance with Chapter 3,
Section 3. Nor are there any such circumstances as prescribed in
Chapter 3, Section 1(3).
Nor are there any other reasons for granting [the applicant] a
residence permit."
The applicant lodged a further request for a residence permit,
invoking new evidence consisting of photographs of himself in uniform
allegedly taken during his army service, decisions to grant him leave
from the military, military forms on which he had ordered clothes, as
well as a statement by a military official that he had been granted
leave for a week due to illness.
On 26 January 1993 the National Immigration Board rejected the
request, considering that the political reasons invoked had in all
significant parts already been examined by the Aliens Appeals Board,
and finding that no humanitarian reasons had been shown for the
granting of the request.
In a further request for a residence permit of 10 March 1993 the
applicant invoked a document showing that he had been released from
prison on 24 June 1989, a mission order of 25 June 1989 and a warrant
of arrest dated 4 February 1993 according to which he was to be
arrested for having failed to report for military service.
The applicant has submitted a copy of his military book issued
on 21 January 1984. In this it is noted that the applicant was drafted
on 2 February 1986.
The decision to release the applicant of 24 June 1989 reads:
(translation into English from the translation into Swedish
provided by the Government)
"The Arab Republic of Syria
The Headquarters of the Army and Armed Forces
The Military Judiciary
The Office of the Military Prosecutor of Damascus
...
To: The Detention Centre of the Office of the Military
Prosecutor of Damascus
We have [today] decided to release Sergeant [the applicant], son
of (A.), no. ..., belonging to group no. ..., corps ..., who is
detained since 26 August 1988 and has been transferred to us from
the Military District of Damascus under no. ... of 1988.
For your knowledge and for the setting of his administrative and
financial conditions at zero.
...
Captain ...
Deputy Head of the Office of the Military Prosecutor of
Damascus"
The mission order issued on the applicant's release and dated
25 June 1989 reads:
(translation into English from the translation into Swedish
provided by the Government)
"The Arab Republic of Syria
The Headquarters of the Army and Armed Forces
The Department of the Military Police
The Central Military Prison
...
Mission order
Sergeant [the applicant], no. ..., belonging to group no.
..., corps ..., is ordered to go to the Central Military
Prison [today] to join his unit following his release ...
on 24 June 1989. ...
...
Director of the Central Military Prison"
The warrant of arrest of 4 February 1993 reads:
(translation into English from the translation into Swedish
provided by the Government)
The Headquarters of the Army and the Armed Forces
The Authority for General Military Service
The Military Service Authority of the County of Aleppo
The Enrolment Department of Al Bab
...
Order of immediate arrest
To the Police Department of the City
You are requested to order the arrest of [the applicant],
son of (A.) and (F.), born in 1965, residence number ...,
who has failed to report for service as a conscript, and to
bring him to the Department for enrolment. If he is not
found, minutes shall be drawn up ... so as to have him
handed over to the military judiciary. ...
...
Colonel ...
Head of the Enrolment Department of Al Bab
..."
The applicant has provided a further Swedish translation of the
warrant. According to him, this translation shows that he has deserted
from the Syrian army, for which reason he shall be arrested and brought
before the enrolment department in order to complete his military
service.
The applicant's request for a residence permit was rejected by
the National Immigration Board on 11 March 1993. The Board considered
that in upholding the decision of 6 September 1991 the Aliens Appeals
Board had not questioned the credibility of the applicant's
submissions. The political reasons invoked before the National
Immigration Board had in all significant parts already been examined
by the Aliens Appeals Board. Moreover, no humanitarian reasons had been
shown for the granting of the applicant's request. The applicant's
request for a stay of enforcement of the expulsion order was also
refused.
On 10 May 1993 the applicant lodged yet a further request for a
residence permit, attaching extracts from the Syrian Military Penal
Code, according to which he would be sentenced to fifteen years'
imprisonment or death for his desertion, if returned.
On 19 May 1993 the National Immigration Board rejected the
applicant's further request for a residence permit, considering that
the circumstances invoked and the documents previously submitted had
already been examined by the Aliens Appeals Board and itself. The
applicant's request for stay of enforcement was also refused.
No appeal lay against the above-mentioned decisions of the
National Immigration Board of 1993.
On 6 August 1993 the National Immigration Board stayed the
enforcement of the expulsion order in view of the indication by the
President of the Commission (see below, "Proceedings before the
Commission").
Prior to 1987 the applicant's eldest brother, who had been active
in the Socialist Union in Syria, had been arrested and released on
several occasions. In 1987 he was again arrested. His fate is unknown.
The applicant's mother is a Lebanese citizen and a Christian.
Relevant domestic law
Under Chapter 3, Section 1, of the 1989 Aliens Act an alien may
be granted asylum because he is a refugee, a deserter or a draft evader
or, without being a refugee, if he does not wish to return to his home
country, because of the political situation there and provided he can
put forward weighty reasons in support of his wish.
The term "refugee" refers to an alien who is staying outside the
country of which he is a citizen because he feels a well-founded fear
of being persecuted in that country, having regard to his race,
nationality, belonging to a special group in society or his religious
or political convictions, and who cannot or does not wish to avail
himself of his home country's protection (Chapter 3, Section 2).
The term "deserter or draft evader" refers to an alien who has
left a place of war or an alien who has escaped from his country of
origin or needs to stay in Sweden in order to avoid forthcoming
military service (Chapter 3, Section 3).
An alien as referred to in Chapter 3, Section 1, is entitled to
asylum. Asylum may, however, be refused inter alia if, in the case of
an alien falling under Chapter 3, Section 1, no. 3, there are special
grounds for not granting asylum (Chapter 3, Section 4).
An alien may be refused entry into Sweden if he lacks a visa,
residence permit or other permit required for entry, residence or
employment in Sweden (Chapter 4, Section 1, no. 2).
When considering whether to refuse an alien entry or to expel him
it must be examined whether he, pursuant to Chapter 8, Sections 1-4,
can be returned to a particular country or whether there are other
special obstacles to the enforcement of such a decision (Chapter 4,
Section 12).
Under Chapter 7, Section 4, the National Immigration Board's
decision in an asylum matter may be appealed to the Aliens Appeals
Board.
An alien who has been refused entry or who is to be expelled may
never be conveyed to a country where there is firm reason to believe
that he would be in danger of being subjected to capital or corporal
punishment or torture, nor to a country where he is not protected from
being sent to a country where he would be in such danger (Chapter 8,
Section 1).
When a refusal of entry or expulsion order is put into effect,
the alien may not be sent to a country where he would risk being
persecuted, nor to a country where he would not be protected from being
sent on to a country where he would risk being persecuted (Chapter 8,
Section 2, subsection 1). An alien may, however, be sent to a country
as referred to in subsection 1 if he cannot be sent to any other
country and if he has shown, by committing a particular offence, that
public order and safety would be seriously endangered by his being
allowed to remain in Sweden. This does not apply if the persecution
threatening him in the other country implies danger to his life or is
otherwise of a particularly grave nature (subsection 2). Similarly, the
alien may be sent to a country referred to in subsection 1 if he has
engaged in activities endangering the national security of Sweden and
if there is reason to suppose that he would continue to engage in such
activities in Sweden and he cannot be sent to any other country
(subsection 3).
If the enforcement is not subject to any obstacles under, inter
alia, Chapter 8, Sections 1 and 2, an alien who has been refused entry
or who is to be expelled is to be sent to his country of origin or, if
possible, to the country from which he came to Sweden. If the decision
cannot be put into effect in the manner indicated in subsection 1 or
there are other special grounds for doing so, the alien may be sent to
some other country instead (Chapter 8, Section 5).
When considering a request for a residence permit lodged by an
alien to be expelled according to a decision which has acquired legal
force, the National Board of Immigration (and in certain cases also the
Government) may stay execution of that decision. For particular reasons
the Board may also otherwise stay execution (Chapter 8, Section 10).
If the enforcing authority finds that enforcement cannot be
carried out or that further information is needed, the authority is to
notify the National Board of Immigration accordingly. In such a case,
the Board may decide on the question of enforcement or take such other
measures as are necessary (Chapter 8, Section 13).
COMPLAINTS
The applicant alleges that, if returned to Syria, he would be
sentenced either to fifteen years' imprisonment or to death for
desertion. He invokes Article 3 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 1 August 1993 and registered
on 3 August 1993.
On 3 August the President of 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 interests of the
parties and the proper conduct of the proceedings not to return the
applicant to Syria until the Commission had had an opportunity to
examine the application.
The President further decided, pursuant to Rule 34 para. 3 and
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.
On 8 September 1993 the Commission prolonged the indication under
Rule 36 until 22 October 1993.
Following an extension of the time-limit the Government's
observations were submitted on 29 September 1993. Supplementary
observations were submitted on 1 December 1993.
On 21 October 1993 the Commission prolonged its indication under
Rule 36 until 10 December 1993.
Following an extension of the time-limit the applicant's
observations in reply were submitted on 8 November 1993. Supplementary
observations were submitted by him on 28 November 1993.
On 9 December 1993 the Commission decided to invite the parties
to a hearing on the admissibility and merits of the application.
On 21 January 1994 the applicant was granted legal aid.
At the hearing, which was held on 4 March 1994, the parties were
represented as follows:
The Government
Mr. Carl Henrik EHRENKRONA Assistant Under-Secretary for
Legal Affairs, Ministry for
Foreign Affairs, Agent
Mrs. Ulrika DACKEBY First Secretary, Ministry of
Culture and Immigration,
Adviser
The applicant
Ms. Lena ISAKSSON Counsel
Mr. Bo JOHANSSON Assistant counsel
THE LAW
The applicant alleges that, if returned to Syria, he would be
sentenced to death or at least fifteen years' imprisonment for
desertion. He 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 Government contend that the application is manifestly
ill-founded, as the applicant has not shown any substantial grounds
that he would run a real risk of being subjected to treatment contrary
to Article 3 (Art. 3), if returned to Syria. The Government question
the information submitted by the applicant and, in particular, whether
he has at all performed military service in that country. They also
question his alleged torture and desertion as well as the authenticity
of the military documents referred to.
Even assuming that the applicant is a deserter, the Government
consider that there is no indication that his desertion entailed
aggravating circumstances, such as deserting to a country with which
Syria was, or is, at war. Accordingly, under the penal provision
applicable to the applicant's offence he would only be sentenced to a
maximum of ten or fifteen years' imprisonment depending on the
circumstances. The Government do not deny the existence of ill-
treatment in prisons in Syria, but find no indication that the
applicant would be subjected to such treatment on account of his
alleged desertion.
The applicant contends that he is a deserter and refers to
various documents submitted showing that he has been enrolled in the
Syrian army. He further maintains that the applicable penal provision
prescribes capital punishment for desertion "into the hands of the
enemy". Even if his desertion would fall outside the scope of that
provision he would, in any event, face at least a fifteen year prison
sentence, during which he would risk further torture. Reference is made
to reports by human rights organisations according to which torture is
widespread in Syrian prisons and, notably, in the Tadmur military
prison.
The Commission has carried out a preliminary examination of the
application in the light of the parties' written and oral submissions.
It considers that the application raises questions of fact and law of
such a complex nature that their determination requires an examination
of the merits. The application cannot therefore be declared
inadmissible as being manifestly ill-founded within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention. No other reason for
declaring it inadmissible has been established.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION ADMISSIBLE, without prejudging its
merits.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy