AS TO THE ADMISSIBILITY OF
Application No. 15658/89
by Abdel-Qader Hussein Yassin MANSI
against Sweden
The European Commission of Human Rights sitting in private
on 7 December 1989, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A. WEITZEL
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
J. CAMPINOS
Mrs. G.H. THUNE
Sir Basil HALL
MM. C.L. ROZAKIS
L. LOUCAIDES
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 19 October 1989
by Abdel-Qader Hussein Yassin Mansi against Sweden and registered
on 19 October 1989 under file No. 15658/89;
Having regard to the reports provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having regard to the Government's written submissions dated
24 October, 3, 22 and 28 November 1989 and the applicant's written
submissions dated 9 November 1989 as well as the parties' oral
submissions at the hearing on 7 December 1989;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the parties, may be
summarised as follows.
The applicant is a Jordanian citizen of Palestinian origin,
born in 1946. He has been deported to Jordan. The applicant is
represented before the Commission by Mr. Per Stadig, a lawyer
practising in Stockholm.
On 18 April 1987 the applicant arrived in Sweden. He asked for
political asylum in Sweden and requested a residence and a work
permit. He stated that for political reasons he could not return to
Jordan.
On 11 April 1988 the National Immigration Board (statens
invandrarverk) in accordance with Section 69 of the 1980 Aliens Act
(utlänningslagen) decided to transfer the applicant's case to the
Government for a decision. The Board, having regard to an opinion
submitted by the National Police Board (rikspolisstyrelsen) on
5 February 1988, found that there were special reasons to let the
Government decide the matter and gave its opinion on the issue to be
decided by the Government. It considered that Section 3 of the 1980
Act could not be applied in the applicant's case and that he was not a
refugee according to the 1951 Geneva Convention on the Legal Status of
Refugees. The Board did not exclude, however, that the reasons given
by the applicant against his expulsion to Jordan were such that,
according to Section 6 of the 1980 Act, he should not be refused the
right to remain in Sweden.
On 20 April 1989 the Government refused the applicant's
request and decided to expel him. They furthermore decided to
prohibit him from returning to Sweden before 1 May 1991. Having
regard inter alia to the opinion of the National Police Board, the
Government found that the reasons invoked by the applicant were, in
important respects, not credible. He could not be considered to be a
refugee according to Section 3 of the 1980 Act or according to the
1951 Geneva Convention and there were no such reasons to let him
remain in Sweden as envisaged by Section 6 of the Act.
On 12 May 1989 the Police Authority of Stockholm referred the
matter of the enforcement of the expulsion order to the National
Immigration Board. Before the Board the applicant invoked the results
of a medical examination of 11 May 1989. He alleged that he risked
political persecution in Jordan and that he had previously been
imprisoned and tortured. The examination had been carried out by the
medical expert, Dr. Sten W. Jakobsson, and the psychiatrist,
Dr. Per Borgå. In his opinion Dr. Jakobsson states that there is a
wound on the applicant's chest with the typical appearance of a not
too old electrical injury. He also states that the nail on one of the
applicant's toes is missing and that on another toe there is a scar
that well matches with the injury the applicant alleges. In a
psychiatric opinion Dr. Borgå states that the applicant has made a
completely credible and detailed statement about torture, which is
supported by his mental reactions while making the statement, as well
as by the results of the physical examination.
The National Immigration Board in an opinion of 21 June 1989,
while transferring the case to the Government, stated that the
circumstances of the case were such that the applicant, having invoked
particular reasons against returning to Jordan, should enjoy the
protection of Section 6 of the Act. The Board proposed that the
Government revoke the expulsion order.
On 18 October 1989 the responsible Minister decided that the
applicant should be taken into custody and on 19 October 1989 the
Government found that there were no obstacles against the enforcement
of the expulsion of the applicant. The Government noted that the
applicant had not prior to the decision to expel him alleged that he
had been tortured. They found that neither the explanation he had
given for this behaviour, nor the allegation of torture, were
credible. The Government furthermore pointed out that the applicant
had given contradictory information as to the length of his
imprisonment and they found, making an overall assessment of the facts
of the case, that the applicant's allegation of political persecution
was not credible.
After the introduction of the present application to the
Commission and after the decision of the Commission's President to
indicate to the respondent Government that it was desirable not to
deport the applicant until the Commission had had an opportunity to
examine the application, the applicant lodged a fresh request for a
residence permit with the National Immigration Board. This request
was refused on 20 October 1989.
On 21 October 1989 the applicant was expelled to Jordan.
After his expulsion the applicant has met a representative of
the Swedish Embassy at Amman and a representative of Amnesty
International. He has told them that after his arrival at Amman
airport he was arrested by the security police. He was interrogated,
ill-treated and tortured for about one week. He stayed some days in
a hospital and was then set free on 5 or 6 November with the duty to
report daily to the security police headquarters in Amman.
COMPLAINTS
1. The applicant alleges that there has been a violation of
Article 3 of the Convention on the ground that his expulsion to
Jordan involved a risk that he would be detained and tortured in the
way he has been tortured before.
2. The applicant alleges that the Government violated Articles 1
and 25 of the Convention when they deported him in spite of the
indication by the Commission's President under Rule 36 of the Rules of
Procedure.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 19 October 1989 and
registered on the same day.
On 19 October 1989, at 15.50 hours, the President of the
Commission decided, in accordance with Rule 28 para. 3 of the
Commision's Rules of Procedure, to communicate the application to the
respondent Government and invite them to submit written observations
on the admissibility and merits of the application.
The President also decided, in accordance with Rule 36 of the
Commission's Rules of Procedure, to indicate to the Government that it
was desirable in the interest of the parties and the proper conduct of
the proceedings before the Commission not to deport the applicant to
Jordan until the Commission had had an opportunity to examine the
application at its forthcoming session from 6 to 10 November 1989.
The Agent of the Government was informed by telephone on the
same day, at 16.10 hours, of the President's decision. At 17.38 hours
the Commission confirmed the said indication by telefax.
By letter of 24 October 1989 the Government informed the
Commission that the applicant had been expelled on 21 October 1989,
and made certain submissions.
The Government's observations were received by letter dated
3 November 1989 and the applicant's observations were dated
9 November 1989.
On 9 November 1989 the Commission decided to invite the
parties to a hearing on the admissibility and merits of the
application.
The Commission further decided, in accordance with Rule 36 of
its Rules of Procedure, to indicate to the Government that it is
desirable in the interest of the parties and the proper conduct of the
proceedings before the Commission that the Government take measures
which will enable the applicant to return to Sweden as soon as
possible.
By letter of 22 November 1989 the Government informed the
Commission that they had transmitted the Commission's indication under
Rule 36 to the National Immigration Board.
On 28 November 1989 the Government submitted additional
written observations.
The hearing before the Commission took place on 7 December 1989.
The Government were represented by their Agent, Mr. Hans Corell,
Ambassador and Under-Secretary at the Ministry for Foreign Affairs, as
well as Mr. Erik Lempert, Permanent Under-Secretary at the Ministry of
Labour, and Mr. Pär Boquist, Legal Adviser at the Ministry for Foreign
Affairs, as advisers. The applicant was represented by his counsel
Mr. Per Stadig.
THE LAW
1. The applicant alleges that there has been a violation of
Article 3 (Art. 3) of the Convention on the ground that he was expelled to
Jordan in a situation where there was a risk that he would be
subjected to treatment prohibited by Article 3 (Art. 3) in that country.
Article 3 (Art. 3) of the Convention reads:
"No one shall be subjected to torture or to inhuman or
degrading treatment or punishment."
The Government submit that the applicant has changed his story
several times. Only at a late stage has he mentioned anything about
torture. His allegations that he has suffered torture in Jordan are
not credible. At the time of the expulsion the Government had
available relevant and reliable information about the current
situation in Jordan. There was no reason to believe that the
applicant would be subjected to treatment contrary to Article 3 (Art.
3) of the Convention in Jordan. For these reasons, the Government
submit that the application should be rejected as being manifestly
ill-founded.
The Commission considers that the main issue is whether the
applicant's expulsion to Jordan violated Article 3 (Art. 3) of the Convention
on the ground that, at the time of the expulsion, there existed
substantial grounds for believing that he faced a real risk of being
treated contrary to Article 3 (Art. 3) of the Convention in Jordan. The
Commission has carried out a preliminary examination of this issue in
the light of the parties' submissions. It considers that the issue
raises questions of fact and law which are of such a complex nature
that their determination should depend on an examination of the merits.
This complaint cannot therefore be considered manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention and no other ground for declaring it inadmissible has been
established.
2. The applicant also alleges that Sweden's failure to
comply with the indications under Rule 36 of the Commission's Rules of
Procedure hinders the effective exercise of his right to have his
case properly examined by the Commission. He submits that Sweden has
violated Articles 1 and 25 (Art. 1, 25) of the Convention.
Article 1 (Art. 1) of the Convention reads:
"The High Contracting Parties shall secure to
everyone within their jurisdiction the rights and
freedoms defined in Section 1 of the Convention."
Article 25 para. 1 (Art. 25-1) of the Convention reads:
"The Commission may receive petitions addressed to the Secretary-
General of the Council of Europe from any person ... claiming
to be the victim of a violation by one of the High Contracting
Parties of the rights set forth in this Convention, provided that
the High Contracting Party against which the complaint has been
lodged has declared that it recognises the competence of the
Commission to receive such petitions. Those of the High
Contracting Parties who have made such a declaration undertake
not to hinder in any way the effective exercise of this right."
The Government submit that there is no obligation under the
Convention to comply with an indication under Rule 36 of the
Commission's Rules of Procedure. They submit that this complaint is
incompatible ratione materiae with the Convention or manifestly
ill-founded.
The Commission considers that the respondent State's failure
to comply with the indications made under Rule 36 of the Commission's
Rules of Procedure raises the question whether there has been a
violation of Article 25 para. 1 (Art. 25-1) of the Convention in
conjunction with Article 1 in view of the special nature of the
alleged violation of Article 3 (Art. 3) of the Convention. This question
involves issues which, in the Commission's view, justify further
examination.
For these reasons, the Commission
DECLARES THE APPLICATION ADMISSIBLE,
without prejudging the merits of the case
RETAINS FOR FURTHER EXAMINATION
the issues arising from the failure to comply with the
indications under Rule 36 of the Commission's
Rules of Procedure
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy