AS TO THE ADMISSIBILITY OF
Application No. 28419/95
by Amal KHARSA
against Sweden
The European Commission of Human Rights sitting in private on
26 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 1 September 1995
by Amal Kharsa against Sweden and registered on 1 September 1995 under
file No. 28419/95;
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 6 October 1995 and the observations in reply submitted
by the applicant on 21 October 1995;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Syrian citizen born in 1967. Before the
Commission she is represented by her lawyer, Mr. Per-Erik Nilsson,
Djursholm.
The facts of the case, as submitted by the parties, may be
summarised as follows.
The applicant arrived in Sweden on 1 August 1992 and applied for
asylum. She stated that her name was Amal Haydar, that she was a
citizen of Iraq, that she had left Iraq for political reasons and that
she and members of her family had been interrogated by the Iraqi police
about her brother's activities in the Communist Party. On the basis of
this information the National Immigration Board (Statens invandrar-
verk), on 26 February 1993, granted her a permanent residence permit.
In August 1993 a man claiming to be the applicant's husband
reported to the Swedish police that the applicant's name was Amal
Kharsa and that she was a Syrian citizen. He further stated that the
applicant had also applied for asylum in Denmark. Investigations
carried out by the Swedish police, Interpol and the Swedish Embassy in
Damascus revealed that this new information was true. Moreover, the
applicant's Syrian passport was obtained from the Danish immigration
authorities. The investigations proved its authenticity. However, on
several occasions between November 1993 and January 1995, in letters
to the Swedish immigration authorities and in police interrogations,
the applicant maintained that the information she had given about her
background was correct. In an attempt to prove that she was not
married, she submitted a medical certificate indicating that she was
a virgin. Not until 24 January 1995 did she concede during a police
interrogation that she was married and that the information supplied
by her husband was true. At the same time, she stated that she had
married him only to escape from her father who had allegedly assaulted
and raped her since she was six years old. She also alleged that her
husband had assaulted her because of her refusal to prostitute herself.
The husband's brother had told her to supply the original false
information to the immigration authorities. The applicant further
stated that, as a student, she had been a member of the illegal Syrian
Communist Party, that her husband had informed the Syrian authorities
of her application for asylum in Sweden and that, for these reasons,
the authorities would consider her a spy.
By decision of 24 February 1995, the National Immigration Board,
basing itself on Chapter 2, Section 9 of the Aliens Act (Utlännings-
lagen, 1989:529), revoked the applicant's residence permit due to the
false information originally submitted by her. It further ordered her
expulsion. The Board called into question the new information supplied
by the applicant and found her allegations of rape remarkable in view
of the medical certificate indicating that she was a virgin. The Board
further took into account that she had left Syria legally with a valid
passport. The Board thus considered that the applicant would not be
considered a spy by the Syrian authorities. It concluded that the facts
invoked by the applicant did not constitute a ground for granting her
a residence permit.
The applicant appealed to the Aliens Appeals Board (Utlännings-
nämnden). She stated, inter alia, that her father had sexually
assaulted her without, as a result, their having had sexual
intercourse. Thus, the medical certificate concerning her virginity did
not exclude that she had been raped. She further claimed that her
husband had sent a letter to the Syrian Government, declaring that she
was married to an Iraqi citizen, that she had claimed to be Iraqi when
she applied for asylum and that she collaborated with the Government
of Iraq. For this reason, she could allegedly not return to Syria. If
returned, she would, furthermore, risk persecution due to the fact that
she was a Sunni-Muslim.
The applicant further submitted two medical certificates, one
issued on 24 February 1995 by Dr. Dag Jansson at the Psychiatric Clinic
at Farsta and the other one issued on 11 April 1995 by Dr. Bengt
Malmgren, chief physician at the same clinic. According to Dr. Jansson,
the applicant would suffer mentally and physically if expelled from
Sweden. According to Dr. Malmgren, she was in a desperate situation and
was suffering from anxiety, depression, suicide thoughts and insomnia.
She had been admitted to a psychiatric ward on 27 March 1995 partly due
to the suicide risk. According to Dr. Malmgren, she had seen him
regularly thereafter. Dr. Malmgren further stated that the applicant
sometimes had difficulties in controlling her suicide thoughts and
considered that she would probably try to commit suicide if she was not
granted a residence permit.
On 9 May 1995 the Aliens Appeals Board rejected the appeal.
Concurring with the National Immigration Board, it considered that the
applicant was not entitled to asylum in Sweden. It further found that
the circumstances invoked by the applicant did not justify granting her
a residence permit on humanitarian grounds.
The applicant later lodged new applications for a residence
permit with the Aliens Appeals Board. She stated, inter alia, that she
had informed the Swedish police that her husband and his brother were
involved in the smuggling of asylum-seekers to Sweden and that she had
thus put her life at risk. She also submitted a statement of
4 June 1995 by Lars Billing, a psychologist, who considered the very
detailed information given by the applicant to the immigration
authorities to be credible and to constitute sufficient humanitarian
grounds for granting her a residence permit.
The applicant further submitted a medical certificate issued on
25 August 1995 by Dr. Michael Brune, a specialist in psychiatry and
neurology, who made the following conclusions:
(translation)
"[The applicant] is in a deep crisis and is absolutely
desperate and probably on the verge of a complete nervous
breakdown, which, if it happens, could involve a psychotic
reaction and/or an absolute loss of control.
One should assume that there is a great risk that she will
commit self-destructive acts when she is told that the
enforcement of the expulsion is inevitable or when the
expulsion is actually enforced. Her expressed plans to take
her own life if she is returned to Syria should be taken
very seriously. There is thus a considerable suicide risk
also after the expulsion has been enforced.
Moreover, [the applicant] has obviously been traumatised by
her life in Syria. A closer and deeper psychiatric
assessment of this trauma is, however, possible only when
the conditions under which she lives have become more
stable. The seriously critical state she is in at the
moment could probably to some extent be explained by this
trauma."
On 8 and 30 August 1995 the new applications were rejected by the
Aliens Appeals Board. On 23 August 1995 the applicant was placed in
detention pending enforcement of the expulsion order. This decision was
upheld by the County Administrative Court (Länsrätten) of Stockholm on
12 September 1995 and by the Administrative Court of Appeal
(Kammarrätten) of Stockholm on 3 October 1995.
On 30 August 1995 the applicant was due to give testimony in a
trial in Stockholm concerning the murder of an Iraqi citizen which was
allegedly connected with the smuggling trade in which the applicant's
husband and brother-in-law were involved. This was, however, cancelled
as the applicant, fearing for her life, did not dare to testify.
After the Commission had indicated to the respondent Government,
pursuant to Rule 36 of its Rules of Procedure, 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
decisions of 3 and 6 September 1995, stayed the enforcement of the
expulsion order pending the Commission's decision on the admissibility
of the application. The Board further decided that the applicant should
remain in detention.
COMPLAINT
The applicant complains that her expulsion to Syria would violate
Articles 3 and 5 of the Convention, as she would risk degrading
treatment by her family, other individuals and the Syrian authorities
and as, due to her present mental state, it would constitute inhuman
treatment and infringe upon her right to personal freedom and security
to expel her.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced and registered on
1 September 1995.
On the same day 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 interest of the
parties and the proper conduct of the proceedings not to deport the
applicant to Syria until the Commission had had an opportunity to
examine the application. The President further decided, in accordance
with Rule 48 para. 2 (b), to communicate the application to the
respondent Government.
By decision of 14 September 1995, the Commission prolonged its
indication under Rule 36 until the end of the Commission's session
between 16 and 27 October 1995.
The Government's observations were submitted on 6 October 1995
after an extension of the time-limit fixed for that purpose. The
applicant replied on 21 October 1995.
THE LAW
The applicant claims that she would risk degrading treatment upon
return to Syria and that, due to her present mental state, it would
constitute inhuman treatment and infringe upon her right to personal
freedom and security to expel her. She invokes Articles 3 and 5
(Art. 3, 5) of the Convention.
The Commission considers that the applicant's complaint, as
submitted, falls to be examined exclusively under Article 3 (Art. 3)
of the Convention. This Article (Art. 3) reads as follows:
"No one shall be subjected to torture or to inhuman or
degrading treatment or punishment."
The Government submit that the application should be declared
inadmissible for being manifestly ill-founded. The Government argue
that the applicant initially submitted false information about her
identity and country of origin to the Swedish immigration authorities
and later maintained this information for a considerable period of
time. Allegedly, it is very likely that she would not have been granted
a residence permit had she submitted the correct information from the
beginning. In this connection, the Government assert that it was a
well-known fact at the time of the applicant's initial application for
asylum that Iraqi asylum-seekers were allowed to stay in Sweden. The
Government contend that Swedish authorities should not have to accept
that persons coming to Sweden under false premises are allowed to
remain in the country. The Government further submit that, against this
background, also the trustworthiness of the new information presented
by the applicant must be called into question. Moreover, considering
that the applicant left Syria legally and that the Syrian authorities
in December 1994 allegedly informed the Swedish Embassy in Damascus
that the applicant is welcome back to Syria, the Government find it
unlikely that she would suffer any harassment from the Syrian
authorities. The Government further contend that Swedish authorities
cannot be held responsible for the measures which, according to the
applicant, might be taken against her by her family or other private
subjects and which most certainly constitute criminal offences in
Syria.
As regards the applicant's mental state, the Government submit
that her present situation, to a very large extent, has been created
by herself due to the false information submitted to the Swedish
immigration authorities. Moreover, a reason for her mental problems is
allegedly her fear of what will happen to her in Syria. Having regard
to the above statements, the Government contend that this fear is
highly exaggerated and, in any event, unsubstantiated. Finally, the
Government maintain that, when enforcing the expulsion, the police
authority in charge will take into account the applicant's state of
health and find the most appropriate manner for such an enforcement.
Should the applicant's health be such that expulsion cannot take place,
the police is obliged to notify the National Immigration Board which
may decide to stay the enforcement until further notice.
The Government conclude that no substantial grounds have been
shown for believing that the applicant would face a real risk of
treatment contrary to Article 3 (Art. 3) of the Convention if the
expulsion order were to be enforced and that she has not substantiated
her allegation that the enforcement would amount to inhuman treatment
in view of her present mental and personal conditions.
The applicant submits that, being an Arabic woman and thus used
to obey the husband and other men, she followed her brother-in-law's
instructions when submitting the initial information to the immigration
authorities in support of her application for asylum. She was afraid
of what could happen to her if she did not follow those instructions.
She was not aware that Iraqi citizens at that time were allowed to stay
in Sweden. She contends that, if expelled to Syria, she runs a
substantial risk of being exposed to degrading treatment by her family,
in particular her father, and, due to her knowledge of certain
circumstances regarding the murder of the Iraqi citizen, by the people
involved in the trade of smuggling asylum-seekers. She contends that
it is irrelevant that this threat comes from private subjects.
Furthermore, the applicant claims that there are very good reasons to
believe that she is of interest to the Syrian authorities because of
her involvement in the Communist Party and the information submitted
by her husband to the Syrian Government. On account of that information
she might be considered an enemy of the Syrian State or might not be
protected from being ill-treated or murdered by the above smugglers.
With regard to her present state of health, the applicant states
that it is a result of her fear of the treatment awaiting her in Syria.
Allegedly, as indicated in the medical certificates, she is likely to
commit serious self-destructive acts if returned to Syria. There are
thus strong humanitarian reasons for letting her stay in Sweden.
The Commission recalls that Contracting States have the right to
control the entry, residence and expulsion of aliens (cf., e.g., Eur.
Court H.R., Vilvarajah and Others 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).
With respect to the risk allegedly facing the applicant upon
return to Syria, the Commission considers that she has not submitted
any evidence in support of her claim that she would suffer harassment
from the Syrian authorities and private persons and organisations. In
this connection, the Commission also notes that the applicant presented
this claim to the Swedish immigration authorities on 24 January 1995,
i.e. about two and a half years after her arrival in Sweden, and that
she had previously submitted false information about her identity,
country of origin and grounds for seeking asylum in Sweden. For these
reasons, the Commission does not find it established that there are
substantial grounds for believing that she would be exposed to a real
risk of being subjected to treatment contrary to Article 3 (Art. 3) in
Syria.
The Commission next has to examine whether, in view of the
applicant's state of health, an enforcement at present of the expulsion
order would in itself involve such a trauma for her that Article 3
(Art. 3) would be violated.
The Commission recalls that ill-treatment must attain a minimum
level of severity if it is to fall within the scope of Article 3
(Art. 3). The assessment of this minimum is relative; it depends on all
the circumstances of the case, such as the nature and context of the
treatment, the manner and method of its execution, its duration, its
physical or mental effects and, in some instances, the sex, age and
state of health of the victim (cf. Eur. Court H.R., Cruz Varas and
Others judgment of 20 March 1991, Series A no. 201, p. 31, paras.
83-84).
In the present case several medical certificates have been
adduced by the applicant. The Commission has paid particular attention
to the opinion of Dr. Brune of 25 August 1995, according to which the
applicant is on the verge of a nervous breakdown and might very well
try to commit suicide when informed about an imminent expulsion, during
the actual enforcement and after her return to Syria.
In so far as the applicant's mental problems relate to her fear
of what will happen to her in Syria, the Commission recalls its above
finding that no substantial basis has been shown for this fear. The
Commission is, moreover, satisfied that the police authority in charge
of the enforcement of the expulsion will take into account the
applicant's state of health when deciding how the expulsion should be
carried out. In this connection, the Commission notes that, should the
applicant be taken into compulsory psychiatric care due to her mental
problems, the expulsion order could under no circumstances take place
without the permission of the chief physician responsible for her care
(cf. No. 27249/95, Lwanga and Sempungo v. Sweden, Dec. 14.9.95,
unpublished).
In the above circumstances, the Commission does not find it
established that the applicant's return to Syria would amount to a
violation of Article 3 (Art. 3) on account of her present state of
health.
It follows that 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.
Deputy Secretary to the Commission President of the Commission
(M. de SALVIA) (S. TRECHSEL)
Full & Egal Universal Law Academy