AS TO THE ADMISSIBILITY OF
Application No. 25849/94
by Mirvat MEZHER
against Sweden
The European Commission of Human Rights sitting in private on
6 July 1995, the following members being present:
MM. C.A. NØRGAARD, President
H. DANELIUS
C.L. ROZAKIS
E. BUSUTTIL
G. JÖRUNDSSON
S. TRECHSEL
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
B. MARXER
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
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 16 November 1994
by Mirvat Mezher against Sweden and registered on 5 December 1994 under
file No. 25849/94;
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 19 January 1995 and the observations in reply submitted
by the applicant on 24 March 1995;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, a Lebanese citizen born in 1966, is a medical
doctor. She resides at present at Åstorp. Before the Commission she is
represented by Mr. Elias Arfwedson, a lawyer practising at Lund.
The facts of the case, as submitted by the parties, may be
summarised as follows.
In June 1991 the applicant applied for a visa to enter Sweden and
visit her cousin, who had lived in Sweden for several years. The
application was rejected by the National Immigration Board (Statens
invandrarverk) on 2 July 1991.
On 16 July 1992 the applicant married her cousin. On the basis
of this relationship, the applicant was, on 10 June 1993, granted a
residence and work permit for the period from 10 June to
10 December 1993. Before the permit was granted, the Immigration Board
and the Swedish Embassy in Damascus had heard the spouses and the
husband had supported the application.
After the grant of the permit there were certain disagreements
between the spouses. The husband was notified of the Board's decision
but failed to tell the applicant, who instead was informed by the
Embassy in July 1993. On 15 July 1993 the permit was stamped in her
passport. During a visit to Lebanon in August 1993, the husband tried
to get hold of the passport, but the applicant refused to give it to
him.
Some members of the respective families tried to bring about a
reconciliation or a divorce between the applicant and her husband. The
husband then stated that he would not divorce the applicant, although
he still did not want her to come to Sweden. It turned out that he had
a girlfriend in Sweden. A reason for his refusal to divorce the
applicant appears to be a dispute between the families concerning
certain property. Moreover, he would be obliged to compensate the
applicant and her family in case of a divorce.
The applicant travelled to Sweden on 9 September 1993. On
20 September 1993 her husband reported to the local police authorities
in his home town in Lebanon that she had disappeared and that he had
been told that she had left for Sweden. As she was not allowed, as his
wife, to travel without his permission, he requested that she be
brought back to him and that necessary action be taken on account of
her having left alone without informing him.
In Sweden the applicant lived with her siblings at Åstorp. She
was not able to reach any agreement with her husband. He refused to
divorce her, although she declared that she was willing to renounce the
compensation he was liable to pay.
After the expiration of her residence and work permit the
applicant applied for a renewal. She stated that she needed time to
sort out her relationship with her husband. She claimed that they would
probably be able to live together if their respective families would
not interfere. However, if living together was not possible, she would
try to make her husband agree to a divorce. As soon as such an
agreement had been reached she would return to Lebanon. However, if she
were to be returned to Lebanon before having reached a divorce
agreement with her husband, he could have her placed in a special kind
of house arrest for women (Bayt at-Tâ'a) in Lebanon due to her reported
disappearance and disobedience. She would have to stay there until he
declared that she was obedient.
On 10 May 1994 the National Immigration Board rejected the
applicant's application and ordered her deportation. The Board stated
that, as she was not living with her husband, she could no more be
given a permit on the basis of this relationship. Referring to its
knowledge of the situation in Lebanon and the conditions under which
the applicant had lived, the Board further found her allegations of
house arrest to be considerably exaggerated.
The applicant appealed to the Aliens Appeals Board
(Utlänningsnämnden). She stated that she had lived together with her
husband and his parents during the month of June 1994. As her husband
could not accept her wish to work but expected her to take care of the
household, their cohabitation had, however, ended and the applicant had
returned to live with her siblings. The husband had allegedly stated
that he was tired of all the trouble and expenses she had caused him
and that he did not want to see her again.
The applicant further submitted a written statement by Professor
Jan Hjärpe, an expert on Islam at the department for religious studies
at the University of Lund. According to Mr. Hjärpe, a husband has,
under Islamic law, an unconditional right to divorce his wife. He is,
however, liable to pay compensation to the wife and her family. The
wife's right to a divorce is conditional in that she has to present
before a judge justifiable reasons for her request. By disobeying her
husband, the applicant has breached their marriage contract. As the
husband refuses to divorce her and there does not seem to be any
possibility under the law for the applicant to obtain a divorce, her
family is obliged to see to it that the contract is fulfilled. The
Lebanese authorities are obliged to assist them. Bayt at-Tâ'a means
"the house of obedience", i.e. the applicant may be placed in house
arrest until the matter is settled.
By decision of 10 October 1994, the Aliens Appeals Board agreed
with the assessment made by the National Immigration Board and upheld
the appealed decision.
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, on
9 December 1994, decided to stay the enforcement of the deportation
order.
The applicant later submitted a fresh application for a residence
permit to the Aliens Appeals Board. She submitted a copy of the police
report of 20 September 1993.
On 8 June 1995 the Aliens Appeals Board rejected the new
application. The Board stated that there were strong reasons to call
into question the purpose of the husband's report to the police. It
further found it unlikely that Lebanese authorities would accept
Lebanese citizens to be treated in the way described by the applicant.
It concluded that it was improbable that the applicant would be
subjected to treatment contrary to Article 3 of the Convention and that
no violation of that Article had been substantiated.
COMPLAINTS
The applicant complains that her deportation would violate
Article 3 of the Convention, as she would be subjected to inhuman and
degrading treatment and punishment upon return to Lebanon.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 16 November 1994 and registered
on 5 December 1994.
On 3 December 1994 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
Lebanon until the Commission had had an opportunity to examine the
application. The Commission further decided, in accordance with Rule 48
para. 2 (b), to communicate the application to the respondent
Government.
By decisions of 2 March, 12 April and 25 May 1995, the Commission
prolonged its indication under Rule 36, ultimately until the end of the
Commission's session between 26 June and 7 July 1995.
The Government's observations were submitted on 19 January 1995.
The applicant replied on 24 March 1995, after an extension of the
time-limit fixed for that purpose. Further observations were submitted
by the applicant on 12 June 1995 and by the Government on 14 June 1995.
On 13 April 1995 the Commission decided to grant the applicant
legal aid.
THE LAW
The applicant complains of a violation of 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 submit that the complaint is manifestly
ill-founded. The Government argue that Swedish authorities cannot be
held responsible for what might occur as a result of a dispute between
the families in question concerning the breach of a marriage contract,
compensation and property ownership. The Government further find that
it is highly unlikely that the applicant will be deprived of her
liberty in the manner described by her and that - should a period of
detention in fact occur - such treatment cannot per se be regarded as
being in breach of Article 3 (Art. 3) of the Convention. The Government
thus contend that substantial grounds have not been shown for believing
that the applicant would face a real risk of treatment contrary to
Article 3 (Art. 3), for which reason the enforcement of the expulsion
order would not constitute a violation of that Article (Art. 3).
The applicant submits that, as her husband has reported to the
Lebanese police that she is disobedient and has run away from home, the
police will capture her upon her return to Lebanon and contact the
husband, who will decide where she is to be placed. She will be placed
in house arrest until she surrenders to her husband's wishes. This
involves an indefinite day and night confinement to a small room, where
she will be fed just as much as to make her survive. Thus, the
treatment allegedly attains the minimum level of severity required for
the application of Article 3 (Art. 3) of the Convention. The applicant
further maintains that there is an imminent and real risk that she will
be subjected to such treatment, as it would be disgraceful for her
husband not to carry out his action against her. Moreover, the Lebanese
authorities are obliged to assist him.
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 under the Convention,
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).
In the present case, the Commission notes that on
20 September 1993 the applicant's husband reported to the Lebanese
police that she had disappeared and requested that necessary action be
taken against her as she had left alone without informing him. The
applicant alleges that due to this report she will be captured by the
police upon her return to Lebanon. Although her family seems to be
obliged to make her fulfil her marital obligations, it appears that it
is up to her husband to decide whether to place her in house arrest.
The Commission considers that an issue under Article 3 (Art. 3)
of the Convention might arise if a person, in the country to which he
or she is to be expelled, faces a real risk of being subjected to
treatment of the kind described by the applicant. In the present case,
the Commission, however, finds that it has not been established that
the applicant faces a real risk of being placed in house arrest upon
return to Lebanon. In the above-mentioned police report, there is no
mention of Bayt at-Tâ'a or any other similar measures. It has not been
alleged that the applicant's husband has expressed an intention to
place her in confinement. According to the applicant's appeal to the
Aliens Appeals Board, her husband has only stated that he does not wish
to see her again as he is disappointed of her intention to work and
tired of the trouble and expenses she has caused him. The Commission
further considers that there is no reason to believe that her husband
would have an interest in having her placed in confinement.
In view of the above, the Commission finds that the applicant has
not shown substantial grounds for believing that she will face a real
risk of being subjected to treatment contrary to Article 3 (Art. 3) of
the Convention, if she returns to Lebanon.
It follows that the application must be rejected as being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy