AS TO THE ADMISSIBILITY OF
Application No. 24900/94
by M.M.M.-M.
against Sweden
The European Commission of Human Rights (Second Chamber) sitting
in private on 22 February 1995, the following members being present:
Mrs. G.H. THUNE, Acting President
MM. H. DANELIUS
G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
Mr. K. ROGGE, Secretary to the Chamber
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 June 1994 by
M.M.M.-M. against Sweden and registered on 16 August 1994 under file
No. 24900/94;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, a Ugandan citizen born in 1966, is a second
lieutenant in the Ugandan army, the National Resistance Army (NRA).
He is at present in hiding in Sweden.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
In 1985 the applicant joined the NRA, at this time a guerilla
movement, as a protest against human rights violations and the murder
of his parents. After the change of government in 1986, he was
attached to the Directorate of Barracks and Stores at the Military
Headquarters assigned to do clerical work.
In 1990 the applicant was transferred to a battalion whose task
was to quell the insurgents in northern Uganda. Because of genocide
and torture allegedly carried out by the NRA, he decided, in the autumn
of 1990, to leave the battalion. He went to Kampala, but was later
brought back. Upon return, he was arrested and charged with subversion
and was put in a military prison. In prison, he became ill and was
therefore taken to a military hospital near Kampala. On 8 March 1991
he managed to escape from the hospital with the help of some army
friends who provided him with a movement order.
After hiding at different places for some months, the applicant
bought from an intermediary a false Ugandan passport, which indicated
that he was a student and that he was born in 1968. After an
unsuccessful attempt at leaving the country on 9 August 1991, he left
Uganda via Entebbe airport on 18 August 1991. He was escorted to the
airport by a high-ranking army officer, who posed as his father. He
travelled via Cairo and Frankfurt and arrived, later the same day, at
Arlanda airport, Stockholm. The following day, 19 August 1991, he
applied for asylum.
In a subsequent police interrogation and in a letter from his
public counsel to the immigration authorities, the applicant stated,
in addition to the above-mentioned facts, that he had not belonged to
any political party or organisation or taken part in any political
activities in Uganda and that he had not been persecuted. He claimed,
however, that, upon return, he risked a long prison sentence or
execution because of his desertion from the army during ongoing
fighting.
On 16 June 1992 the National Immigration Board (Statens
Invandrarverk) rejected the applicant's application and ordered his
expulsion. The Board did not find it credible that he had been charged
with subversion. It further considered that the other allegations
submitted did not meet the requirements for obtaining asylum or a
residence permit in accordance with the Aliens Act (Utlänningslagen,
1989:529).
The applicant appealed to the Aliens Appeals Board (Utlännings-
nämnden), which, at the request of the applicant, asked for information
from the Swedish embassy in Nairobi, Kenya. In a reply of
23 November 1993, the embassy stated that the information supplied by
the applicant was improbable. It found it unlikely that the applicant
had been brought from the north of Uganda to a hospital in Kampala and
that he had obtained a passport through an intermediary. Furthermore,
according to the embassy, he would hardly be charged with subversion
for having deserted the army.
In answer to the embassy's statements, the applicant alleged that
the only military hospital was placed in Kampala and that all documents
in Uganda can be obtained with money. He further maintained that after
he had left the battalion in the autumn of 1990 he was charged with
subversion and subsequent to his escape from the hospital he is now
charged and wanted for desertion.
On 26 January 1994 the Aliens Appeals Board rejected the
applicant's appeal and stated, inter alia, the following:
(translation)
"[The applicant] entered Sweden on 18 August 1991 as a
tourist with a guarantor and did not apply for asylum until
the following day. [The applicant] has chosen to depart
from Entebbe airport with a passport of his own, issued on
4 July 1991 and indicating student as his profession.
Furthermore, [the applicant] was granted tax clearance on
16 August 1991. These circumstances lessen the credibility
of [the applicant's] statements as to his need of asylum.
[The applicant] has made contradictory statements as to
which period he was absent without leave from his military
service and the date of his escape from the hospital. [The
applicant's] statement that he had been charged with
subversion due to his desertion is not credible and was
made only at a late stage in the proceedings before the
National Immigration Board. Only after the embassy's
investigation and only before the [Aliens Appeals] Board
has [the applicant] stated that he was first charged with
subversion and later also with desertion. [The
applicant's] statements concerning the charges are, in
these circumstances, not credible.
The information given by [the applicant] on his referral
from the north of Uganda to a hospital in Kampala, on the
procurement and issuing of the passport and on the security
service's knowledge of and interest in him is, according to
the Board's assessment, not probable."
COMPLAINTS
The applicant complains that the Swedish authorities have wrongly
ordered his expulsion and maintains that he will be subjected to
treatment contrary to Article 3 of the Convention upon return to
Uganda.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 1 June 1994. By letter of
17 June 1994 the applicant requested the Commission to stay his
deportation from Sweden.
On 28 June 1994 the Commission decided not to indicate to the
Government of Sweden, pursuant to Rule 36 of the Commission's Rules of
Procedure, the measure suggested by the applicant.
Following further correspondence with the applicant, the
application was registered on 16 August 1994.
THE LAW
The applicant complains that, if expelled to Uganda, he risks
being subjected to treatment contrary to 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 Commission recalls that Contracting States have the right to
control the entry, residence and expulsion of aliens. The right to
political asylum is not protected in either the Convention or its
Protocols (Eur. Court H.R., Vilvarajah and Others judgment of
30 October 1991, Series A no. 215, p. 34, para. 102). However,
expulsion by a Contracting State of an asylum seeker 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 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).
The applicant contends that he will be prosecuted and possibly
executed for subversion and desertion. He alleges that while in prison
after having left his battalion he was tortured and mistreated. He
refers to various documents showing, inter alia, that he has been
enrolled in the NRA and that the Military Code of Conduct prescribes
that a court martial shall try and judge a deserter as it deems fit.
He has also submitted an NRA document which states that he has been
tried and sentenced in his absence and that he is accordingly wanted.
The Commission does not consider it established that the
applicant would risk capital punishment for subversion or desertion if
returned to Uganda. Concerning his possible imprisonment for these
offences, the Commission does not find such a penalty so severe as to
raise an issue under Article 3 (Art. 3) of the Convention (cf., e.g.,
No. 12364/86, Dec. 17.10.86, D.R. 50 p. 280). In this connection, the
Commission notes that the NRA document concerning the trial and
sentencing in absentia does not state the name of the court, the
offence or the penalty. 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 the
alien would be in danger of being subjected to capital or corporal
punishment or torture in that country (cf., e.g., No. 22325/93,
Dec. 8.9.93, not published).
In view of the above, the Commission finds no substantiation of
the applicant's claims that he would be subjected to treatment contrary
to Article 3 (Art. 3) of the Convention upon return to Uganda.
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.
Secretary to the Second Chamber Acting President of the Second Chamber
(K. ROGGE) (G.H. THUNE)
Full & Egal Universal Law Academy