AS TO THE ADMISSIBILITY OF
Application No. 32025/96
by Falah Mahdi KAREEM
against Sweden
The European Commission of Human Rights sitting in private on
25 October 1996, the following members being present:
Mr. S. TRECHSEL, President
Mrs. G.H. THUNE
Mrs. J. LIDDY
MM. A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
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
M. VILA AMIGÓ
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 18 June 1996 by
Falah Mahdi KAREEM against Sweden and registered on 25 June 1996 under
file No. 32025/96;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to the observations submitted by the respondent
Government on 19 July 1996 and the observations in reply submitted by
the applicant on 30 August and 18 September 1996;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, an Iraqi citizen, was born in 1963. He is
presently detained for deportation purposes in Härnösand, Sweden.
Before the Commission he is represented by Mr. Anders Bengtsson, a
lawyer practising in Sundsvall, Sweden.
The facts of the case, as submitted by the parties, may be
summarised as follows.
Upon arrival at Arlanda airport, Stockholm on 7 December 1991,
the applicant applied for political asylum. Interrogated by the police
the same day, he stated that, although he was not a political activist,
he took part in the Intifada, the 1991 rebellion against Saddam
Hussein. Some friends, who were arrested and tortured following the
Intifada, told the Iraqi authorities about the applicant's
participation. He therefore fled to the north of Iraq. A week later,
he passed the border to Turkey where he stayed for two or three days.
On 6 December he took the plane from Istanbul to Vienna and the next
day he flew to Stockholm. He also mentioned that his elder brother had
been living in Sweden for the past four years.
During a further police interview on 10 February 1992 the
applicant stated that, after disregarding a call-up for active military
service in the beginning of 1990, he had been in hiding in Iraq for
almost two years. As a consequence, he probably would be executed if
returned to Iraq. However, neither he nor his relatives had been
subjected to any form of persecution or harassment by the Iraqi
authorities. Furthermore, he had not been arrested, convicted or
imprisoned. With regard to his flight from Iraq, the applicant gave
the following details. In November 1991 he went by bus from his
hometown Babel to Erbil in the north of Iraq. The trip took seven
hours. In Erbil, he stayed with a friend for three weeks before the
two of them made a four hour bus journey to a Turkish border town.
They passed the Turkish border by foot at a place where there was no
control post. After having spent three nights at an hotel, the
applicant and his friend left the border town by bus in the morning of
6 December. Later the same day, they arrived at the airport in
Istanbul where they met an unknown smuggler who supplied the applicant
with a false passport. After the passport, plane ticket and luggage
had been checked and the applicant had received a boarding card, the
smuggler reclaimed the passport and left. The applicant travelled
alone to Vienna. At Vienna airport, the applicant passed the passport
control by showing his boarding card. He stayed overnight at a transit
hotel. The next day, 7 December, he took the plane to Stockholm. The
applicant was unable to name the Turkish border town, any of the hotels
and airlines and the airports in Istanbul and Vienna. Furthermore, he
did not know in which name his plane tickets had been issued.
When the recording of the interview was played back for him, the
applicant added that he took part in the Intifada while he was in
hiding. He further handed over his international driving permit,
issued by the Iraq Automobile & Touring Association in Bagdad on
10 October 1991.
In a memorandum to the National Immigration Board (Statens
invandrarverk), dated 2 March 1992, the Swedish security police
(Säkerhetspolisen; "SÄPO") stated that there were reasons to believe
that the applicant and two other Iraqi citizens were acting on behalf
of the Iraqi Government. Referring to their conduct in Sweden, SÄPO
considered that they had shown an unreasonable interest in other asylum
seekers' situation. SÄPO considered therefore that they did not meet
the requirements for asylum status and that they could be expected to
engage in criminal activities in Sweden.
In December 1994 and January 1995 the applicant's lawyer
submitted additional observations to the National Immigration Board.
He stated that the applicant was not called up for military service in
the beginning of 1990, as erroneously indicated in the minutes of the
police interview, but in August 1990. While hiding from the police and
the army, the applicant received help from friends and family. He was,
inter alia, able to obtain false leave passes and other military
documents from a friend in the army. When the Intifada reached his
hometown, the applicant took a very active part and participated in
large, sometimes violent, demonstrations. After the Iraqi military had
crushed the rebellion, the applicant fled by bus to Bagdad and then by
taxi to Erbil. After having stayed with his friend in Erbil, the two
of them took a taxi to Zacho, a town on the border between Iraq and
Turkey. At the border, the applicant's friend talked to some guards
and, in exchange for 500 Iraqi dinars, received instructions on where
and how they should pass the border. The applicant and his friend
passed the border by foot close to the border station. After half an
hour's walk, they were given a lift by car to the nearest Turkish
village. After the Intifada, the applicant's father had allegedly been
questioned about the applicant's whereabouts.
The lawyer further stated that the applicant feared harsh
treatment in Iraq not only because he had disregarded the call-up and
participated in the Intifada but also because he had left Iraq without
permission. The applicant claimed that he was entitled to a residence
permit also on account of his family ties and on humanitarian grounds.
He referred to his marriage, on 3 March 1994, with a Swedish woman.
Allegedly, they had met on 20 March 1992 and had lived together for a
year and a half before getting married. Moreover, he had stayed in
Sweden for three years waiting for his asylum application to be
determined. The applicant strongly repudiated SÄPO's allegation that
he was active for the Iraqi Government. Naturally, he had talked to
Iraqis in Sweden. However, except for some questions on how the asylum
interviews were conducted, the talks had only concerned everyday
matters and not political subjects.
On 13 January 1995 the Immigration Board referred the applicant's
case to the Government with a recommendation that the application be
rejected. The Board stated that the applicant, on account of his
marriage, had certain ties to Sweden. However, these ties were of
minor importance in view of the security reasons for refusing a
residence permit. The Board further noted that SÄPO, orally on
9 December 1994, had recommended the rejection of the application.
In letters to the Government of 8 and 13 February 1995, the
applicant's lawyer stated that the delay in examining the application
rather indicated that there were no security reasons for refusing the
applicant a residence permit. The lawyer further mentioned that the
applicant had met M, one of the Iraqis mentioned in the SÄPO memorandum
of 2 March 1992, upon arrival at Arlanda airport, that they had stayed
for some time at the same centre for asylum seekers and that they had
been in contact only once after M had received a residence permit and
left the centre. Allegedly, they only had normal social relations.
In a statement to the Government of 18 May 1995, SÄPO again
recommended the rejection of the application. For security reasons,
the information in the statement was not communicated to the applicant.
By decision of 31 August 1995, the Government rejected the
applicant's request for access to SÄPO's statement.
On 13 June 1996 the Government rejected the applicant's
application for a residence permit. It further ordered SÄPO to deport
the applicant. The Government gave the following reasons for its
decision. The fact that the applicant had disposed of his passport
affected the credibility of his statements. Moreover, the applicant
had not been able to give a credible account of how he had left Iraq
and travelled to Sweden. His statements on the events in Iraq and the
reasons for seeking asylum in Sweden were also remarkably vague and
imprecise. There were discrepancies between statements given on
different occasions. The Government noted, inter alia, that, at the
first police interview in December 1991, the applicant had failed to
mention that he had disregarded a call-up for military service. This
vital information was not given until the second interview in February
1992. Moreover, on the latter occasion, the applicant had mentioned
his participation in the Intifada only after having listened to the
recording of the interview. Concluding that the applicant's statements
were not credible, the Government found that he did not have, on any
ground, a right to asylum in Sweden. The Government further accepted
the findings of SÄPO. There were thus reasons to expel the applicant
under Chapter 4, Section 2, subsections 3 and 4 of the Aliens Act
(Utlänningslagen, 1989:529), according to which a foreigner may be
expelled if it can be assumed that he will engage in criminal
activities, sabotage, espionage or other unlawful intelligence
activities. In these circumstances, the applicant could not be granted
a residence permit on account of his family ties or his long stay in
Sweden.
On 13 June 1996 SÄPO also decided to take the applicant into
custody for deportation purposes, as there was a risk that he would
otherwise go into hiding or commit crimes. The decision was enforced
the same day. By judgment of 28 June, the County Administrative Court
(länsrätten) of the County of Stockholm rejected the applicant's
appeal. On 9 July and 20 August, respectively, the Administrative
Court of Appeal (kammarrätten) in Stockholm and the Supreme
Administrative Court (Regeringsrätten) refused the applicant leave to
appeal.
After the Commission had indicated to the respondent Government
that it was desirable not to deport the applicant until the Commission
had had an opportunity to examine the present application, the National
Immigration Board, by decision of 16 July 1996, stayed the enforcement
of the expulsion order pending the Commission's decision on the
admissibility of the application.
After having held an oral hearing on 9 August 1996, SÄPO decided
on 12 August that the applicant should remain in custody. SÄPO found
that there were special reasons (synnerliga skäl) for the continued
detention, as prescribed by Chapter 6, Section 4 of the Aliens Act.
The decision was upheld by the County Administrative Court on 20
August. Leave to appeal was refused by the Administrative Court of
Appeal and the Supreme Administrative Court on 3 and 25 September,
respectively.
On 30 August 1996 the applicant's lawyer requested permission to
study SÄPO's file on the applicant. By decision of 9 September, SÄPO
rejected the request except for the minutes of SÄPO's interview with
the applicant on 5 March 1993 which were handed over to the lawyer.
The decision has been appealed against to the Administrative Court of
Appeal.
COMPLAINTS
1. The applicant claims that his expulsion would violate Articles
2 and 3 of the Convention, as he risks the death penalty, torture and
other inhuman or degrading treatment or punishment in Iraq.
2. As it would also separate the applicant from his wife, the
expulsion allegedly fails to respect his family life. In this regard,
he invokes Article 8 of the Convention.
3. Under Article 6 of the Convention, the applicant complains that
he did not receive a fair hearing of his asylum application.
4. The applicant further claims that he is being detained in
violation of Article 5 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 18 June and registered on
25 June 1996.
On 25 June 1996 the Commission decided, pursuant to Rule 36 of
its 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 deport the applicant to Iraq until the
Commission had had an opportunity to examine the application. The
Commission further decided, in accordance with Rule 48 para. 2 (b) of
the Rules of Procedure, to communicate the application to the
respondent Government.
The Government were requested to submit observations on the
applicant's complaints under Articles 2, 3, 6 and 8 of the Convention.
The complaint under Article 5 of the Convention was not introduced
until 18 September 1996 and has not been communicated to the
Government.
By decision of 12 September 1996, the Commission prolonged the
indication under Rule 36 until 25 October 1996.
The Government's observations were submitted on 19 July 1996.
The applicant replied on 30 August and 18 September 1996.
THE LAW
1. The applicant claims that his expulsion would violate Articles
2 and 3 (Art. 2, 3) of the Convention.
Article 2 (Art. 2) of the Convention reads, in relevant parts,
as follows:
"1. 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 (Art. 3) of the Convention provides the following:
"No one shall be subjected to torture or to inhuman or
degrading treatment or punishment."
The respondent Government submit firstly that the alleged risk
of the applicant being sentenced to death should be examined not under
Article 2 (Art. 2) of the Convention but under Article 1 of Protocol
No. 6 (P6-1) to the Convention, as the latter but not the former
provision prohibits the death penalty. The Government further 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 normally not possible to assess with any degree of certainty the
risks run by Iraqis who have spent time abroad for other purposes than
business or the like. Iraqi nationals are granted residence permits
as refugees or so-called de facto refugees 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 applicant's complaints
with respect to the risks facing him in Iraq are manifestly ill-
founded, as he has not shown substantial grounds for believing that
there exists a real risk of treatment contrary to Article 3 (Art. 3)
of the Convention and Article 1 of Protocol No. 6 (P6-1). In this
respect, the Government generally refer to their decision of
13 June 1996 in which they found that the applicant had not submitted
a generally coherent and credible account of the events that had taken
place in Iraq, his flight from the country and the reasons for his
asylum request. Furthermore, the applicant's claim that he was in
hiding from the Iraqi authorities for a considerable time before he
came to Sweden is contradicted by his alleged active participation in
the rebellion against the country's regime and the fact that he applied
for and obtained an international driving permit. It is also unlikely
that the applicant was able to pass the passport control at the airport
in Vienna with only his boarding card. The Government further submit
that it is clear that the applicant arrived in Sweden under completely
false pretences. He was sent as an intelligence officer with an
assignment to gather information about other Iraqi nationals. Within
months after the applicant's arrival in Sweden, Swedish authorities
were contacted by a considerable number of both Iraqi and Swedish
nationals who, independently of each other, stated that the applicant
and two other Iraqis were collecting information on Iraqi asylum
seekers to be forwarded to the authorities in Bagdad. Allegedly, they
had inquired in an unusually detailed manner into the reasons for other
Iraqis' requests for asylum. According to the Government, it is not
uncommon for the Iraqi intelligence service to operate in this manner.
One of the applicant's two compatriots, M, who had been identified as
the applicant's superior, was expelled from Sweden in 1995. The
Government have further ordered the expulsion of the other colleague,
reported by an Iraqi refugee as being the latter's torturer in Iraq.
The applicant submits that he might be killed or subjected to
torture or other inhuman or degrading treatment or punishment in Iraq
on account of having disregarded a call-up for military service,
actively participated in the Intifada and left the country without
permission. The Government's reliance on the applicant's alleged lack
of credibility is difficult to understand in view of the practice of
granting residence permits to Iraqi asylum seekers, irrespective of
their credibility, unless there are objections from the viewpoint of
security. With regard to his credibility, the applicant states the
following. He mentioned the military call-up at the first interview
and his participation in the Intifada at the second interview before
listening to the recording of it. He does not know why these
statements were not noted in the minutes or recorded on the tape, but
states that the first interview was held in an accelerated tempo and
was not conducted in a very careful way and that the chief interrogator
at the second interview might have failed to repeat his answer on the
tape. Moreover, the interrogators' attitude towards the applicant was
hostile, and so he found it easier to give a more correct and detailed
account to his lawyer. Furthermore, the applicant was not in hiding
while he participated in the Intifada. His international driving
permit was obtained by his father in exchange for bribes. As he had
not travelled abroad before his flight to Sweden, does not understand
any of the languages spoken in the countries he passed through and was
constantly in fear of being sent back to Iraq, it is understandable
that he forgot or did not note names and other details. He was ordered
by the smuggler to return the passport and maintains that he passed the
passport control at the airport in Vienna without it.
The applicant denies that he has been sent to Sweden to carry on
espionage or engage in other criminal activities. He has not asked any
Iraqi nationals about the reasons for their seeking asylum. He has
already, in his lawyer's letter to the Government of 13 February 1995,
given an account of his contacts with M. He does not know the identity
of the third Iraqi mentioned in the Government's observations. In
general, he cannot comment on the credibility and reliability of the
accusations against him, as he has had no access to the information
held by SÄPO. He suspects, however, that some accusations might be the
result of jealousy and states, in this connection, that his brother and
a friend of his brother accused the applicant of having affairs with
their respective wives. He also refers to the fact that his brother
fled to Sweden in November 1986 for political reasons and became a
Swedish citizen in November 1991. It is not likely that he would
engage in activities against, inter alia, his brother.
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). Moreover, the Commission does not exclude the possibility
that a Contracting State's responsibility might be engaged under
Article 2 (Art. 2) of the Convention or Article 1 of Protocol No. 6
(P6-1) where a fugitive is extradited to a country where he is
seriously at risk of being executed, as a result of the imposition of
the death penalty or otherwise (cf. No. 22742/93, Aylor-Davis v.
France, Dec. 20.1.94, D.R. 76 p. 164).
Turning to the circumstances of the present case, the Commission
notes that, with respect to the applicant's statements regarding the
journey from Iraq, there are major discrepancies between the
information given to the police in February 1992 and the observations
submitted to the National Immigration Board in December 1994 and
January 1995. In 1992 the applicant stated that he had travelled all
the way from Babel to Erbil by bus; in 1994/95 he claimed that he had
changed to a taxi in Bagdad. In 1992 he asserted that he had travelled
by bus to the Turkish border; in 1994/95 he maintained that he had
taken a taxi. In 1992 he alleged that there was no control post at the
Turkish border; in 1994/95 he stated that his friend had bribed some
Turkish border guards. In 1994/95, but not in 1992, he mentioned that
he and his friend had been given a lift on the Turkish side. Moreover,
the applicant has not been able to name the Turkish town where he
stayed for three days, any of the hotels he stayed at or any of the
airlines he travelled with. The Commission also notes that the
applicant, according to the minutes of the first police interview in
December 1991, on this occasion failed to mention that he had
disregarded a call-up for military service, although this, as stated
by the applicant at the second interview, was the initial reason why
he went into hiding.
In view of the above, the Commission considers, notwithstanding
the submissions made by the applicant to the Commission, that there are
strong reasons to call into question the veracity of the applicant's
statements. The Commission further notes that the applicant has
offered no evidence in support of his claims. For these reasons, the
Commission finds that it has not been established that there are
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 there is no possibility of a
violation of Article 2 (Art. 2) of the Convention and Article 1 of
Protocol No. 6 (P6-1).
Moreover, the Commission recalls from its previous case-law that
Chapter 8, Section 1 of the Aliens Act imposes an absolute obligation
on the enforcement authority in Sweden to refrain from expelling an
alien should the human rights situation in the receiving country
constitute a firm reason to believe that he or she would be in danger
of being subjected to capital or corporal punishment, or torture, in
that country (cf., e.g., No. 27776/95, A.G. and Others v. Sweden, Dec.
26.10.95, D.R. 83 p. 101). In this connection, the Commission further
notes the Swedish authorities' present practice of expelling asylum
seekers to Iraq only in exceptional circumstances.
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 further complains that the decision to expel him
fails to respect his family life. He invokes Article 8 (Art. 8) of the
Convention, which provides the following:
"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 and morals, or for the protection of the rights and
freedoms of others."
The Government submit that the applicant's expulsion will entail
no interference with his right to respect for his family life as, at
the time of his marriage, he was well aware that his continued stay in
Sweden was uncertain. He had not been granted a residence permit and
had prior to the marriage been questioned by SÄPO. He could thus not
reasonably expect to be able to choose Sweden as his and his wife's
country of matrimonial residence. Furthermore, the applicant has not
even argued that his wife would not be allowed to live together with
him in his own country or in another country of their mutual choice.
Should the Commission, however, find that the expulsion entails
an interference under para. 1 of Article 8 (Art. 8-1) of the
Convention, the Government contend that it is justified under the terms
of Article 8 para. 2 (Art. 8-2). The Government maintain their
conclusion, referred to under 1 above, that the applicant is an
intelligence officer sent to Sweden to gather information about other
Iraqi nationals. Thus, his expulsion would serve the purpose of
preventing crime, as unlawful intelligence activities is a criminal
offence under the Swedish Penal Code. It would further protect the
rights and freedoms of others, including other Iraqi nationals, and be
in the obvious interest of national security. The State's margin of
appreciation in striking a fair balance between the general interests
of the community and the individual interest of the applicant would not
be exceeded by the enforcement of the expulsion decision. Being
proportionate to the legitimate aims pursued, the enforcement of the
decision is necessary in a democratic society.
The applicant submits, in addition to what has been referred to
under 1 above, that, as a consequence of his expulsion, he will be
separated from his wife. They have been together since March 1992.
They both wish to live in Sweden. He believes that his wife would not
be allowed to settle in Iraq.
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).
Noting that the applicant and his wife have been living together
for several years and that they got married in March 1994, the
Commission finds that the applicant's expulsion could be considered as
an interference with his right to respect for his family life under
Article 8 para. 1 (Art. 8-1). It is therefore necessary to ascertain
whether the expulsion would satisfy the conditions of Article 8 para.
2 (Art. 8-2), that is to say whether it is "in accordance with the
law", pursues one or more of the legitimate aims set out in that
paragraph, and is "necessary in a democratic society" for the
achievement of that or those aims (cf., e.g., Eur. Court HR, Boughanemi
v. France judgment of 24 April 1996, para. 36, to be published in the
Reports of Judgments and Decisions for 1996).
It has not been contested that the expulsion order was issued "in
accordance with the law". The Commission considers that the
enforcement of the order pursued legitimate aims under Article 8 para.
2 (Art. 8-2), namely the interests of national security, the prevention
of crime and the protection of the rights and freedoms of others.
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 (ibid., p. 18, paras. 41-42).
The Commission recalls the Government's conclusion, based on
information supplied by SÄPO, that the applicant is an Iraqi
intelligence officer. It is true that the facts on which this
information is based have only partly been communicated to the
applicant and the Commission. The Commission observes, however, the
need of preserving some degree of confidentiality of this kind of
information in deportation matters. Having regard to the available
information and the margin of appreciation left to the Swedish
Government, the Commission is satisfied that the decision to expel the
applicant is supported by relevant and sufficient reasons. The
Commission further notes that there is no evidence that the applicant's
wife would not be able to follow the applicant to Iraq.
In view of the above, the Commission concludes 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.
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. The applicant further complains that he did not receive a fair
hearing of his asylum application. He invokes Article 6 (Art. 6) of
the Convention which, in so far as relevant, reads as follows:
"1. In the determination of his civil rights ... or of any
criminal charge against him, everyone is entitled to a fair
... hearing within a reasonable time ...
2. Everyone charged with a criminal offence shall be
presumed innocent until proved guilty according to law."
The Government submit that Article 6 (Art. 6) of the Convention
is not applicable and that this complaint is thus incompatible ratione
materiae with the Convention.
The applicant contends that his rights under Article 6
(Art. 6) were violated as he was not presumed innocent and as the
asylum application was not determined within a reasonable time.
The Commission recalls its established case-law according to
which procedures followed 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 followed in the
applicant's case did not determine any criminal charge against him, the
Commission finds that Article 6 (Art. 6) of the Convention does not
apply to the present complaint.
It follows that this part of the application is incompatible
ratione materiae with the provisions of the Convention within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
4. The applicant finally complains that his detention since 13 June
1996 is not justified by special reasons, as required under the
relevant provision of the Aliens Act for a detention exceeding two
months. Moreover, the courts examining this matter have accepted
SÄPO's decisions without making any independent assessments. He
invokes Article 5 (Art. 5) of the Convention which, in relevant parts,
provides the following:
"1. Everyone has the right to liberty and security of
person. No one shall be deprived of his liberty save in
the following cases and in accordance with a procedure
prescribed by law:
...
f. the lawful arrest or detention ... of a person against
whom action is being taken with a view to deportation ..."
The Commission considers that the applicant has been lawfully
detained under Article 5 para. 1 (f) (Art. 5-1-f) of the Convention as
a "person against whom action is being taken with a view to
deportation". As to the length of his detention, the issue which
arises is whether it has ceased to be justified because the proceedings
have not been pursued with the requisite speed (cf. Eur. Court HR,
Kolompar v. Belgium judgment of 24 September 1992, Series A no. 235-C,
p. 55, para. 36). In this connection, the Commission notes that SÄPO
and, on appeal, the County Administrative Court decided that the
applicant should remain in detention after the National Immigration
Board had decided to stay the enforcement of the expulsion order
pending the Commission's decision on the admissibility of the present
application. In view of this and having regard to the time the
applicant so far has been detained, i.e. almost four and a half months,
the Commission finds that the applicant's detention has not ceased to
be justified.
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.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
H.C. KRÜGER S. TRECHSEL
Secretary President
to the Commission of the Commission
Full & Egal Universal Law Academy