SECOND SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 22556/05
by Salah MABROKI
against Sweden
The European Court of Human Rights (Second Section), sitting on 21 November 2006 as a Chamber composed of:
MrJ.-P. Costa, President,
MrA.B. Baka,
MrI. Cabral Barreto,
MrsA. Mularoni,
MrsE. Fura-Sandström,
MsD. Jočienė,
MrD. Popović, judges,
and Mrs S. DOllé, Section Registrar,
Having regard to the above application lodged on 21 June 2005,
Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court and the fact that this interim measure has been complied with,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Salah Mabroki, is a Tunisian national who was born in 1968 and lives in Stockholm. He is represented before the Court by Mr B. Johansson, a lawyer practising in Stockholm.
The facts of the case may be summarised as follows. The applicant arrived in Sweden on 14 August 2001, but it was not until 12 August 2004, when the police incidentally asked him for his personal documents, that the authorities become aware of his existence. As he was residing illegally in the country, the police prepared for his immediate expulsion. However, at that point he indicated that upon return he risked persecution. The case was transferred to the immigration authorities.
He applied for asylum invoking the following circumstances. His eldest brother had married an Algerian woman and moved to Algeria. The Tunisian authorities had been of the opinion that the brother belonged to a terrorist organisation and constituted a danger vis-à-vis Tunisia. Due to this, the applicant had been discriminated against and arrested on several occasions. He had been interrogated and tortured. He had received blows to the head and been exposed to other physical and mental, inhuman treatment. As a result, he was still suffering from serious psychological problems, such as nightmares, anxiety, depression and insomnia. The discrimination had consisted, inter alia, in him being forced to leave school which had handicapped him on the labour market. Most of all, he had had problems with the police in his home town, but he had also been arrested in other towns in Tunisia and would therefore not be safe elsewhere in his home country. He had not himself been politically active and his problems had solely stemmed from his brother’s political involvement. As a reason for asylum, he also invoked poverty. He had not been granted a passport, but had managed to arrange for one via contacts. Since he arrived in Sweden he had stayed with his sister, helping her to take of her gravely handicapped daughter.
On 25 August 2004 the Migration Board (Migrationsverket) rejected the application for asylum on the following grounds. The fact that the applicant had waited three years to apply for asylum indicated that he did not consider himself to be in a strong need of protection. The veracity of his story was questionable. He had not himself been politically active and had not been able to submit the name of the organisation in which his brother had allegedly been active. There was no reason to believe that the applicant was of particular interest to the Tunisian authorities.
The applicant appealed. He stated that the reason for not having immediately submitted his asylum application was that he feared that he would be returned to Tunisia. He submitted a photocopy of what he claimed to be a judgment according to which, on 4 May 2004, he had been sentenced in his absence by a court in Tunisia for membership of a forbidden political organisation. He suffered from ill-health. There was now a strong family attachment between his niece and him.
On 2 November 2004 the Aliens Appeals Board (Utlänningsnämnden) rejected the appeal, finding that the family links between the applicant and his niece were not strong enough for asylum to be granted on that ground. The applicant had not been living together with the sister and her daughter immediately before leaving Tunisia. The sister had been granted a permanent residence permit in Sweden already in 1997. He had also not applied for asylum, invoking family links, when arriving in Sweden. The humanitarian circumstances invoked by the applicant were not strong enough to grant asylum.
The applicant submitted a new application, adding that he had been active in the forbidden Islamic organisation an-Nahdha, and that the Appeals Board had not given sufficient weight to the aforementioned contumacious judgment. He referred to a memorandum on the human rights situation in Tunisia drafted by the Swedish Foreign Ministry. His sister had divorced her husband, who had been beating her, which increased the attachment between her and her daughter, on the one hand, and the applicant on the other.
On 15 December 2004 the Aliens Appeals Board rejected the application. It gave the contumacious judgment little weight as evidence.
The applicant submitted yet another new application to the Appeals Board, which was rejected on 22 March 2005.
On 21 June 2005 the applicant lodged the present application and requested the Court to indicate to the Swedish Government, under Rule 39 of the Rules of Court, the suspension of his deportation. On the same day the President of the Section granted that request until further notice.
On 6 January 2006 the President adjourned the application at the request of the Government, following the enactment of a temporary amendment to the Swedish Aliens Act.
On 27 May 2006 the Migration Board, under the temporarily amended Aliens Act, anew rejected the applicant’s asylum request.
COMPLAINTS
1. The applicant complains under Article 3 of the Convention that, if returned to Tunisia, he faces a risk of being exposed to torture.
2. He also complained that the processing of his case before the Swedish immigration authorities had not met the standards set out in Article 6 of the Convention.
THE LAW
1. The applicant complains that his expulsion to Tunisia would involve a violation under Article 3 of the Convention, which 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 that it be communicated and the respondent Government invited to submit written observations on the admissibility and merits of the case.
2. The applicant further complained that he had been denied a fair hearing, as guaranteed in Article 6 of the Convention, insofar as his arguments and evidence were treated in a very summary way during the asylum proceedings. The relevant part of Article 6 § 1 reads as follows:
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing....”
However, according to the Court’s case-law, decisions regarding the entry, stay and deportation of aliens do not concern the determination of an applicant’s civil rights or obligations or of a criminal charge, within the meaning of Article 6 § 1 of the Convention (see Maaouia v. France [GC], no 39652/98, § 40, ECHR 2000-X). Consequently, Article 6 § 1 is not applicable in the instant case.
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 prolong until further notice the indication under Rule 39 of the Rules of Court;
Adjourns its examination of the complaint made under Article 3 of the Convention;
Declares the remainder of the application inadmissible.
S. DolléJ.-P. Costa
RegistrarPresident
Full & Egal Universal Law Academy