AS TO THE ADMISSIBILITY OF
Application No. 20981/92
by M.P.G.
against Sweden
The European Commission of Human Rights sitting in private on
8 April 1993, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
Sir Basil HALL
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
M.A. NOWICKI
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 17 October 1992
by M.P.G. against Sweden and registered on 20 November 1992 under file
No. 20981/92;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to the observations submitted by the respondent
Government on 1 February and 16 March 1993 and the applicant's
observations in reply submitted on 24 February 1993;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an Iranian citizen born in 1960 and currently
resident in Sweden. Before the Commission he is represented by
Mr. Hans Östberg, a lawyer practising in Falun.
The facts of the case, as submitted by the parties, may be
summarised as follows.
Particular circumstances of the case
In 1979 and 1980 the applicant was an active member of the
resistance movement Mujahedin. He distributed leaflets and magazines
in Teheran. In 1980 he was detained and tortured. In May 1980 he was
released by the Central Revolutionary Court upon signing a declaration
in which he renounced cooperation with "the profane and terrorist
groups". He was, however, prohibited from leaving his place of
residence.
Until the spring of 1988 he worked as an "ordinary member" of
Mujahedin. However, during its military offensive and up to his escape
from Iran he again worked actively and openly for Mujahedin.
In July 1989 the activities of the group in which the applicant
and his brother were working were revealed and two members of the group
arrested. The applicant and his brother then went into hiding.
In October 1989 the applicant and his brother were allegedly
twice sought by members of the Iranian Revolutionary Army in the home
of their parents.
The applicant and his brother left Iran and arrived in Sweden on
6 November 1989.
On 7 November 1989 the applicant applied for asylum.
The applicant's wife and children are still in Iran.
In 1990 the applicant's wife allegedly received the following
notification from the Religious Court of the County of Teheran:
(translation submitted by the applicant)
" ... You shall report, at the latest on 31 December 1990,
to interrogation section I at Gsargatan.
Concerning [your] marriage with [the applicant], depraved
on earth the court has on 18 November 1990 decided, in
accordance with Islamic law, that it is forbidden to have
contact with or get married to a member of Monafegh
(Mujahedin).
All contact with [the applicant] is contrary to Islamic law
and is considered as having illicit sexual relations.
..., interrogator."
On 22 January 1991 the National Immigration Board (statens
invandrarverk) refused the applicant asylum in Sweden. The Board
stated, inter alia:
(translation from Swedish)
"...
Having regard to all the reasons invoked by [the applicant]
in support of his asylum request the Board does not
consider it credible that his political activities [in
Iran] have been of the alleged extent. There is no reason
for granting [him] asylum under Chapter 3, Section 1 of the
[1989] Aliens Act (utlänningslag 1989:529).
..."
On the same day the applicant's brother was, for similar reasons,
also refused asylum.
In a medical report of 9 April 1991 submitted by Dr. J.E. the
following was stated:
(translation from Swedish)
"... [The applicant] was born in Iran, where he has been
sympathising with the Mujahedin movement. [He] states that
in 1980 he was detained for 52 days in [the prison of]
Evin. During [his] detention he was [allegedly] ill-treated
as follows:
- for periods of 5-6 hours his hands were chained together
behind his back; one arm was placed over the same shoulder
and chained to the other arm ... In this position he was
suspended from the ceiling on a chain;
- while he was so suspended he was ... kicked, beaten and
burned in several places by cigarettes;
- his teeth were knocked out;
- on some occasions he received strong kicks on the lower
part of his legs so that they broke.
...
[The applicant] looks older than he is. Through an interpreter
he gives a quiet and seemingly credible account [of his ill-
treatment].
His body shows several small scars which may originate from
the above-mentioned [cigarette burns].
Both hands and, in particular, his right hand, show curved
scars which very likely originate from the above-mentioned
chains.
In sum, [the applicant] has been ill-treated during his
detention in Iran. ... I conclude
- that his account ... is not contradicted by the
examination findings;
- that [his] account is ... compatible with the examination
findings.
..."
On 24 May 1991 the National Immigration Board upheld its previous
decision and referred the applicant's appeal to the Government.
On 11 September 1991 the applicant stated that he had recently
participated in certain Mujahedin activities in Sweden such as a
demonstration.
Following the creation of the Aliens' Board (utlänningsnämnden)
the Government on 16 January 1992 referred the applicant's appeal to
the Board.
In a psychiatric opinion of 25 March 1992 the following was
stated:
(translation from Swedish)
[The applicant] ... first came in contact with [the
Psychiatric Clinic at the County Hospital in Gävle] on
18 January 1992, as some time ago he had begun to suffer
from depression, loss of zest for life, insomnia,
concentration difficulties, loss of appetite and
chilliness. A reactive depression was then found due to the
fact that he had been staying in Sweden since 1989 and had
not yet received a residence permit or any final decision
regarding his fate. On 18 January [1992] [he] stated that
he had begun to contemplate suicide. He was then placed
under observation, received medical treatment and
[psychiatric therapy] and was released on 19 January
[1992]. [He] was sent back to us ... after having tried to
commit suicide by means of pills. [He stated] that his wife
and children are still in Iran and that his depression had
deepened. ... He had contemplated suicide more and more
often. ... As from 13 March [1992] [he] is staying at ...
the Psychiatric Clinic. Neither a depression nor desperate
impulsive acts can be excluded. ..."
This opinion was attached to the applicant's appeal to the Aliens
Board together with photographs confirming his political activities in
Sweden.
On 2 April 1992 the Aliens Board rejected the appeal, stating the
following:
"The [Aliens] Board shares the opinion of the National
Immigration Board that [the applicant's] assertion that he
runs a risk of persecution in his home country lacks
credibility. [The applicant] is not to be considered a
refugee under Chapter 3, Section 2 of the Aliens Act.
Neither are such circumstances at hand as prescribed in
Chapter 3, Section 1, para. 3 ...
It appears from the investigation that [the applicant's]
wife and underaged children remain in [Iran]. His
connection with [Iran] is, thus, of such a character that
special reasons are at hand for not granting a residence
permit under [the 1991 Aliens Ordinance (förordning 1991:
1999 om upphållstillstånd i vissa utlänningsärenden)].
...
The humanitarian reasons invoked are not of such a
character as to warrant the granting of a residence
permit...
Neither are there any reasons for allowing him to stay ..."
No appeal lay against the Aliens Board's decision.
One member of the Board found that the applicant's connection
with Iran was not of such a strength as to warrant the refusal of a
residence permit. He noted that on the same day the Board had allowed
the applicant's brother to stay in Sweden in the absence of any special
reasons speaking against granting a residence permit.
On 14 April 1992 the Supreme Administrative Court (Regerings-
rätten) rejected the applicant's request for a re-opening of the
proceedings.
On 12 June 1992 the National Immigration Board rejected a further
request for a residence permit and suspension of the expulsion order
on the ground that the new evidence submitted was not sufficient for
the granting of asylum or a residence permit. No appeal lay against
this decision.
On 11 November 1992 the National Immigration Board rejected, on
grounds similar to those in its decision of 12 June 1992, a further
request by the applicant for a residence permit. No appeal lay against
this decision.
In support of the last-mentioned request the applicant had
submitted a copy of a summons allegedly issued by the Central Office
of the Islamic Prosecutor on 7 June 1992, in which the applicant had
been summoned to appear at an interrogation section on 26 June 1992.
The Government submit that on 11 August 1992 the National
Immigration Board decided to suspend the execution of the expulsion
order and to have the authenticity of the summons verified. The
investigation concluded that the document was a falsification.
From the summer of 1990 to the summer of 1991 the applicant
participated in manifestations organised by the Swedish Mujahedin
movement. Fearing, however, that he had been photographed by an Iranian
agent he subsequently stopped supporting Mujahedin activities in the
open.
Relevant domestic law
Under Chapter 3, Section 1 of the Aliens Act, an alien may be
granted asylum because he is a refugee (no. 1) or, without being a
refugee, if he wishes not to return to his home country because of the
political situation there and provided he can put forward weighty
reasons in support of his wish (no. 3).
The term "refugee" refers to an alien who is staying outside the
country of which he is a citizen because he feels a well-founded fear
of being persecuted in that country, having regard to his race,
nationality, belonging to a special group in society or his religious
or political convictions, and who cannot or does not wish to avail
himself of his home country's protection (Chapter 3, Section 2).
An alien as referred to in Chapter 3, Section 1 is entitled to
asylum. Asylum may, however, be refused inter alia if, in the case of
an alien falling under Chapter 3, Section 1, no. 3, there are special
grounds for not granting asylum (Chapter 3, Section 4).
An alien may be refused entry into Sweden if he lacks a visa,
residence permit or other permit required for entry, residence or
employment in Sweden (Chapter 4, Section 1, no. 2).
When considering whether to refuse an alien entry or to expel him
it must be examined whether he, pursuant to Chapter 8, Sections 1-4,
can be returned to a particular country or whether there are other
special obstacles to the enforcement of such a decision (Chapter 4,
Section 12).
A refusal of entry issued by the National Board of Immigration
may be combined with a prohibition on return for a specific period of
time (Chapter 4, Section 14). In refusing entry the Government, too,
may issue a prohibition on return for a specific period of time
(Chapter 7, Section 5, subsection 2).
Under Chapter 7, Section 10 the National Board of Immigration may
review its decision, if new circumstances have emerged or for any other
reason, provided it would not affect the alien negatively or be
irrelevant to him. A review may take place even if an appeal has been
lodged against the Board's decision. If the Board has handed over the
file to the Government it may only review its decision, provided its
opinion is requested by the Government.
The National Board of Immigration may, for special reasons, refer
a request for asylum to the Government together with its opinion on the
matter (Chapter 7, Section 11).
An alien who has been refused entry or who is to be expelled may
never be conveyed to a country where there is firm reason to believe
that he would be in danger of being subjected to capital or corporal
punishment or torture, nor to a country where he is not protected from
being sent to a country where he would be in such danger (Chapter 8,
Section 1).
When a refusal-of-entry or expulsion order is put into effect,
the alien may not be sent to a country where he would risk being
persecuted, nor to a country where he would not be protected from being
sent on to a country where he would risk being persecuted (Chapter 8,
Section 2, subsection 1). An alien may, however, be sent to a country
as referred to in subsection 1 if he cannot be sent to any other
country and if he has shown, by committing a particularly serious
offence, that public order and safety would be seriously endangered by
his being allowed to remain in Sweden. This does not apply if the
persecution threatening him in the other country implies danger to his
life or is otherwise of a particularly grave nature. Similarly, the
alien may be sent to a country referred to in subsection 1 if he has
engaged in activities endangering the national security of Sweden and
if there is reason to suppose that he would continue to engage in such
activities in Sweden and he cannot be sent to any other country
(subsection 2).
If the enforcement is not subject to any obstacles under, inter
alia, Chapter 8, Sections 1 and 2, an alien who has been refused entry
or who is to be expelled is to be sent to his country of origin or, if
possible, to the country from which he came to Sweden. If the decision
cannot be put into effect in the manner indicated in subsection 1 or
there are other special grounds for doing so, the alien may be sent to
some other country instead (Chapter 8, Section 5).
When considering a request for a residence permit lodged by an
alien to be expelled according to a decision which has acquired legal
force, the National Board of Immigration (and in certain cases also the
Government) may stay execution of that decision. For particular reasons
the Board may also otherwise stay execution (Chapter 8, Section 10).
If the enforcing authority finds that enforcement cannot be
carried out or that further information is needed, the authority is to
notify the National Board of Immigration accordingly. In such a case,
the Board may decide on the question of enforcement or take such other
measures as are necessary (Chapter 8, Section 13).
Under the 1991 Ordinance on Residence Permits in Certain Cases
(förordning 1991:1999 om uppehållstillstånd i vissa utlänningsärenden)
an alien who has been staying in Sweden for more than eighteen months
on 1 January 1992 may be granted a residence permit unless there are
special reasons for not granting such a permit. The Ordinance entered
into force on 1 February 1992.
COMPLAINT
The applicant alleges that, if returned to Iran, he will be
subjected to torture or capital punishment. He refers to his activities
within the Mujahedin movement, his previous detention and torture, the
annulment of his marriage allegedly only possible if a person is
considered an enemy to the Iranian State, and the summons issued by the
Islamic Prosecutor in June 1992. He invokes Article 3 of the
Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 17 October 1992 and registered
on 20 November 1992.
On 20 November 1992 the President of the Commission decided,
pursuant to Rule 36 of the Commission's Rules of Procedure, that it was
desirable in the interest of the parties and the proper conduct of the
proceedings not to return the applicant to Iran until the Commission
had had an opportunity to examine the application.
The President further decided, pursuant to Rule 34 para. 3 and
Rule 48 para. 2(b), to bring the application to the notice of the
respondent Government and to invite them to submit written observations
on its admissibility and merits.
On 2 December 1992 the President granted an extension of the
Government's time limit for submitting their observations.
On 11 December 1992 the Commission prolonged the President's
indication under Rule 36 until 15 January 1993.
On 15 January 1993 the Commission prolonged its indication under
Rule 36 until 19 February 1993.
The Government's observations were submitted on 1 February 1993.
On 19 February 1993 the Commission prolonged its indication under
Rule 36 until 8 April 1993.
On 19 February 1993 the Commission granted the applicant legal
aid.
The applicant's observations in reply were submitted on 24
February 1993.
THE LAW
The applicant complains that, if returned to Iran, he will be
subjected to torture or capital punishment. He invokes Article 3
(Art. 3) of the Convention, which reads:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment".
The Government argue that the application is manifestly ill-
founded, as there are no substantial grounds for believing that the
applicant would face a real risk of treatment contrary to Article 3
(Art. 3) upon his return. The applicant had not substantiated his
allegation that he was wanted by Iranian authorities. The Government
question whether the applicant was really sought by the Iranian
authorities, as he managed to live for some time in his sister's house.
The applicant had further made contradicting statements about his
arrest in 1980. At first he had stated having been arrested in the
street while distributing leaflets for Mujahedin. In a subsequent
interview with immigration officials he had stated having been arrested
in his home. Moreover, on the first occasion he stated having broken
off his contacts with Mujahedin following the banning of the movement.
Yet subsequently he had stated having stopped working for Mujahedin for
private reasons. The Government have further concluded that the summons
allegedly issued by an Islamic Prosecutor is a falsification.
The Government further submit that the applicant's knowledge of
Mujahedin seems rather limited. As regards the details of the
applicant's journey from Iran to Sweden a number of elements raised
doubts as to the credibility of his account. The applicant allegedly
managed to travel by bus via a number of big cities without his
identity ever having been checked. The system for searching for wanted
persons in Iran is, however, known to be quite efficient. He allegedly
managed to fly from Dubai holding a Saudi-Arabian passport, but without
a boarding card or even a flight ticket. No security control was
allegedly carried out, not even of the applicant's luggage.
Subsequently he had difficulties remembering the name of the airline.
In the Government's view it could be questioned whether the applicant
really departed from Dubai.
The Government refute the applicant's statement to the Swedish
authorities that he did not have to present his passport upon arrival
in Copenhagen. This contradicts the routines at the airport, where also
Swedish police take part in passport controls. His assertion that he
passed the passport control at Arlanda airport in Stockholm seemed even
less credible.
The Government point out that there was no reason for the
applicant not to apply for asylum immediately upon his alleged arrival
on 6 November 1990 instead of on the following day.
The Government state that they have not been faced with any
evidence of ill-treatment of Iranians who have returned to their
country. Many Iranian asylum seekers travel to and from their country
without any problems. More and more Iranians are, however, leaving
their country for economic and not for political reasons.
The Government emphasise that in 1991 1.266 and in 1992 743
Iranians applied for asylum in Sweden. About 47 per cent of the
applications were rejected by the National Immigration Board in 1992.
However, 1.129 Iranians were granted residence permits. Out of these
124 were considered to be political refugees within the meaning of
Chapter 3, Section 2 of the Aliens Act, while 311 were granted de facto
refugee status within the meaning of Chapter 3, Section 1, no 3. 693
Iranians were granted residence permits on humanitarian grounds.
The Government finally point out that Chapter 8, Section 1 of the
Aliens Act reflects almost exactly the principles established in the
case-law of the European Court of Human Rights. The final decision in
the present case was made by the newly established Aliens Board, which
is independent from the Government. Both the applicant and his brother
were refused asylum in view of the information submitted by them, which
was found to lack credibility. Although the applicant's brother was
also refused asylum, he was allowed to stay in Sweden in accordance
with the 1991 Ordinance, the authorities having found no special reason
speaking against granting him a residence permit. In the applicant's
case, however, the fact that his wife and children remain in Iran, was
seen as such a reason.
The applicant maintains that when arriving in Sweden he handed
over his identity booklet to the National Immigration Board. It appears
from this booklet that he has not performed his military service. A
person who has such a booklet cannot have a passport, as the booklet
is exchanged for the passport. A person suspected of banned political
activities cannot exchange his booklet for a passport. An identity
booklet is in itself strong evidence of his position and activities in
Iran. The fact that he possesses an identity booklet proves that he
does not have normal civil and political rights in Iran. The
information showing that his marriage has been annulled proves that the
Iranian State views him as an enemy of the State. It is known that Iran
is violating human rights in its treatment of dissidents.
The applicant further submits that in 1992 the Swedish Government
expelled an Iranian, who was immediately arrested at the airport in
Teheran and has not been heard of since. Mujahedin requested the
Swedish Government to intervene. The Swedish Prime Minister demanded
that the man be released so that he could be received in Sweden. This
demand seems to have been in vain.
The Government maintain that the fact that the applicant was in
possession of an identity booklet when arriving in Sweden does not
prove whether or not he has held a valid passport. When a passport is
issued to an Iranian, the identity booklet is returned to him, as it
may be needed in other contacts with authorities. Many Iranian asylum
seekers have arrived in Sweden in possession of both a passport and an
identity booklet.
The Government further state that they are unaware of the case
of the Iranian expelled from Sweden in 1992 referred to by the
applicant. The Swedish Prime Minister has never interfered in an
individual asylum case in the manner alleged. In a case which came to
the Government's knowledge in 1992 it was alleged that an asylum seeker
who had returned to Iran had been arrested. The information proved to
be wrong and the person was found living in good conditions. Although
it is not unusual for Iranians returning after a long stay abroad to
be interrogated by the police, they are usually released afterwards.
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 of an asylum seeker may give rise to an issue
under Article 3 (Art. 3) of the Convention, and hence engage the
responsibility of a Contracting 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 in this context (ibid., p.
37, para. 111).
The Commission shares the Government's considerable doubts in
regard to the applicant's story. The applicant has not commented on the
Government's assertion that the summons allegedly issued by an Islamic
Prosecutor is a falsification. The Commission finds that on the whole
the applicant's account of his background in Iran and escape to Sweden
contains inconsistencies.
The Commission also attaches importance to the fact that the
Swedish authorities appear to have gained a considerable experience in
evaluating claims of the present nature by virtue of the large number
of Iranian asylum seekers in Sweden. It notes that residence permits
have in fact been granted in numerous cases. Moreover, it should be
noted that the authorities are obliged to consider basically the same
factors as are relevant to the Convention organs' assessment under
Article 3 (Art. 3) of the Convention. The applicant's expulsion was
made after careful examination of his case (cf. Eur. Court H.R., Cruz
Varas and Others judgment of 20 March 1991, Series A no. 201, p. 31,
para. 81).
The Commission in particular observes that Chapter 8, Section 1
of the Aliens Act imposes an absolute obligation also on the enforcing
authority in Sweden to refrain from expelling an alien, should the
evolution of the human rights situation in the receiving country
constitute firm reason to believe that he would be in danger of being
subjected to capital or corporal punishment or torture in that country.
The Commission concludes that the evidence before it concerning
the applicant's background and the general situation in Iran does not
establish that there are substantial grounds for believing that the
applicant would be exposed to a real risk of being subjected to
treatment contrary to Article 3 (Art. 3) of the Convention if returned
there.
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. NORGAARD)
Full & Egal Universal Law Academy