AS TO THE ADMISSIBILITY OF
Application No. 16381/90
by R
against Denmark
The European Commission of Human Rights sitting in private
on 14 October 1991, the following members being present:
MM. J.A. FROWEIN, Acting President
C.A. NØRGAARD
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
Mrs. J. LIDDY
MM. L. LOUCAIDES
M.P. PELLONPÄÄ
B. MARXER
Mr. J. RAYMOND, Deputy 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 21 March 1990
by R against Denmark and registered on 2 April 1990 under file
No. 16381/90;
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 23 May 1991 and the observations in reply submitted by
the applicant on 3 June 1991, as well as the submissions of the
parties at the hearing held on 8 July 1991 and the documentary
evidence submitted on 26 August 1991;
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 an Iranian citizen, born in 1961. He is at
present serving a six-year prison sentence at Nyborg State Prison,
Denmark. Before the Commission he is represented by his lawyer,
Mrs. Helle Lokdam, Århus, Denmark.
The applicant came to Denmark on 11 March 1984 where he
applied for asylum. He explained to the Directorate for Aliens
(Direktoratet for Udlændinge) that he had never been a member of any
political organisation or otherwise been politically active. He
submitted, however, that on 6 December 1983 he commenced his military
service. After approximately two months' basic training, he received
ten days' leave before going to the Iranian/Iraqi front. He did not
return to the army after the ten-day leave and in mid-February 1984 he
left Iran illegally and arrived in Pakistan, from where he continued
to Denmark via Turkey and the then German Democratic Republic.
On 25 September 1984 the Directorate for Aliens informed
the applicant that he would receive a time-limited residence permit
in accordance with Section 7 para. 1 no. 2 of the Aliens Act with a
view to permanent residence in Denmark due to the fact that he had
deserted from the Iranian army. This Section of the Aliens Act reads
as follows:
(translation)
"1. Upon application a Danish residence permit shall be
issued to an alien falling within the provisions of the
Convention on the Legal Status of Refugees of 28 July 1951.
2. A Danish residence permit shall be issued to an alien
who does not fall within the provisions of the Convention on
the Legal Status of Refugees of 28 July 1951, provided that
for reasons similar to those stated in that Convention or
for other weighty reasons he should not be required to
return to his country of origin."
In May 1986 the applicant was arrested and charged with seven
counts of rape and attempted rape and one count of theft. During the
investigations the Aliens Board (Flygtningenaevnet) submitted, on
19 November 1986, that the reasons which in 1984 were the basis upon
which the applicant was granted a residence permit in accordance with
the Aliens Act were still valid. According to the Aliens Board the
applicant could not be sent to Iran. Furthermore the Board maintained
that a deportation of the applicant on the basis of a judgment would
require that the situation in Iran would change or that he be deported
to another country where he could obtain protection. The Board,
however, reserved its position with reference to Section 31 para. 2
(mentioned below).
By judgment of 2 April 1987 the High Court of Western Denmark
(Vestre Landsret) sitting with a jury found the applicant guilty of
most of the charges brought against him and sentenced him to six
years' imprisonment. It was furthermore decided, on the basis of
Sections 22 and 26 of the Aliens Act, to expel the applicant from
Denmark and prohibit, forever, a return to Denmark. The applicant did
not appeal against the sentence or the decision to expel him.
Section 22 of the Aliens Act reads as follows:
(translation)
"An alien who for the purpose of permanent stay has
lawfully lived in Denmark for more than the immediately
preceding 7 years, and an alien issued with a residence
permit under Sections 7 or 8 may be expelled only if:
1. expulsion is deemed necessary for reasons of
national security;
2. the alien has repeatedly committed serious
criminal offences;
3. the alien is sentenced unconditionally to a minimum
of 6 years' imprisonment or other custodial penalty,
and because of the sentence and the nature and
seriousness of the crime he ought not to remain in
Denmark."
Section 26 of the Aliens Act reads as follows:
(translation)
"In deciding on expulsion, not only the alien's relationship
with the Danish community, including the duration of his
stay in Denmark, shall be taken into consideration, but also
whether the expulsion would be considered exceptionally
burdensome on him, in particular because of:
1. the alien's age, health and other personal
circumstances;
2. the alien's personal or family ties with Danish or
foreign nationals living in Denmark;
3. the alien's other ties with Denmark, including
whether the alien came to Denmark in his childhood
or tender years and therefore spent some or all of his
formative years in Denmark;
4. the alien's loose or non-existent ties with his
home country or any other country in which he may be
expected to take up residence; and
5. the risk that the alien will be ill-treated in his
home country or any other country in which he may
be expected to take up residence."
In October 1988 the applicant requested the City Court
(Byretten) of Nyborg to reconsider, in accordance with Section 50 of
the Aliens Act, the decision to expel him contained in the High Court
judgment of 2 April 1987.
Section 50 of the Aliens Act reads as far as relevant:
(translation)
"If an expulsion ... has not been enforced within a period
of six months from the judgment, an alien may request the
question of the annulment of the expulsion order to be
brought before the court if he maintains that substantial
changes in his situation have occurred ... The request must
be made at least 3 months prior to the expected expulsion.
... The request may be rejected by the court if it is
obvious that no substantial changes in the alien's situation
have occurred.
The court's decision is made in the form of a court order
(kendelse) which may be appealed against in accordance with
the rules set out in Chapter 85 of the Administration of
Justice Act (Retsplejeloven)."
On 13 October 1988 the City Court of Nyborg rejected the
request in accordance with Section 50 para. 2 of the Aliens Act.
The applicant did not appeal against this decision.
When the applicant learned of his intended release on 9 May
1990 he requested the Chief of Police of Nyborg, on 5 September 1989,
to consider whether it would be contrary to Section 31 of the Aliens
Act to expel him to Iran.
Section 31 of the Aliens Act reads as follows:
(translation)
"An alien shall not be expelled to a country where he risks
persecution for the reasons set out in the Convention on
the Legal Status of Refugees of 28 July 1951, Article 1 (a),
or where the alien is not protected against being
transferred to such a country.
The above also applies if the reasons stated in Section 7
para. 1 no. 2 ... are at hand, save where there are specific
reasons to assume that the alien presents a danger to national
security, or if the alien, after a final judgment concerning
a particularly dangerous crime, must be assumed to present
an imminent danger for the life, health, or freedom of
others."
On 3 October 1989 the Chief of Police of Nyborg decided that
Section 31 of the Aliens Act would not prohibit the applicant's return
to Iran.
The applicant appealed against this decision to the Aliens Board
which heard the applicant on 12 December 1989. He explained that upon
return to Iran he feared execution because he had deserted from the
army and furthermore he feared persecution because of his criminal
record in Denmark. On 29 December 1989 the decision of the Chief of
Police of Nyborg was upheld. The Aliens Board found that, regardless
of the fact that the applicant had obtained asylum in Denmark, he
could be expelled in accordance with Section 31 para. 2 of the Aliens
Act.
The Chief of Police of Nyborg then informed the applicant's
representative that the applicant would be expelled immediately upon
release from prison on 9 May 1990.
In February 1990 a member of the Danish Parliament asked the
Minister of Foreign Affairs what guarantees he was able to obtain in
order to make sure that Iranians who had been granted asylum in
Denmark because they had refused military service, would not be
executed if they returned to Iran.
In his answer of 20 March 1990 the Minister of Foreign
Affairs stated the following:
(translation)
"It naturally follows that it is not possible for the
Ministry of Foreign Affairs to obtain guarantees that
Iranians who have been granted asylum in Denmark but who are
later expelled from Denmark will not be executed if they are
sent back to Iran.
The specific case which the question seems to refer to has
been finally decided by the Aliens Board."
The case referred to by the Minister was the applicant's case.
On 7 May 1990 the applicant asked the Aliens Board to reopen his case,
inter alia with reference to a note dated 26 April 1990 from the
Ministry of Justice concerning the case-law of the European Court of
Human Rights with regard to Article 3 of the Convention, including in
particular the Soering case, and Article 1 of Protocol No. 6.
Furthermore reference was made to a note dated 2 May 1990 from the
Ministry of Foreign Affairs concerning the applicant's situation if he
were to return to Iran. The first-mentioned note concluded that, in
the light of the case-law of the European Court of Human Rights, it
could be assumed that an expulsion to a country which applied the
death penalty would be considered by the Court as violating Article 1
of Protocol No. 6 to the Convention. From the second note it appeared
that the offences committed by the applicant in Iran (desertion from
the army) were not of a kind which could be expected to lead to
capital punishment or treatment contrary to Article 3 of the
Convention, but that the offences might lead to a prolongation of the
period of military service. It also appeared from the note that rape
is a capital crime in Iran.
On 6 June 1990 the Aliens Board refused to reopen the
applicant's case and referred the applicant to the Danish courts in
order to have the question of expulsion considered under Section 50 of
the Aliens Act.
On 9 August 1990 the applicant accordingly brought the
question of expulsion before the City Court of Nyborg.
On 20 September 1990 the City Court annulled the decision in
the High Court judgment of 2 April 1987 whereby the applicant was to
be expelled after having served his 6 year prison sentence. As it
could not be excluded that the applicant, if expelled to Iran, might
be prosecuted and as it could not be excluded either that he risked
execution, the Court found that the expulsion would be contrary to
Article 3 of the Convention and Article 1 of Protocol No. 6.
The public prosecutor appealed against this decision to the
High Court of Eastern Denmark which heard the case on 12 October 1990.
On 6 November 1990 the High Court overruled the City Court's decision.
The High Court stated that the facts of the case, i.e. the
information about the risk that the applicant might be ill-treated in
Iran if he were to be expelled, did not differ substantially from the
information available at the time of his conviction by the High Court
of Western Denmark in April 1987. Equally the law, i.e. in particular
Article 3 of the European Convention on Human Rights and Article 1 of
Protocol No. 6, had remained unchanged. The Ministry of Justice had, in
a note dated 26 April 1990, made a legal interpretation of the
Convention and the Protocol. This fact could not be considered to have
caused substantial changes in the applicant's situation. Against this
background the High Court of Eastern Denmark found no grounds under
Section 50 of the Aliens Act to annul the decision in the judgment of
the High Court of Western Denmark to expel the applicant.
On 31 January 1991 the Ministry of Justice granted the
applicant leave to appeal to the Supreme Court (Højesteret) which then
received the case-file concerning the applicant's criminal case as
well as the case-file concerning the expulsion case.
Before the Supreme Court the Prosecutor General submitted
inter alia that an expulsion to a country which applied the death
penalty would not as such violate the Convention or its Protocols. A
problem would only arise if there was a substantial risk that the
person in question, due to the expulsion, would be executed or
tortured. In the present case the Prosecutor General did not find this
to be the case since there was, in his opinion, no support for the
allegation that the applicant would face prosecution for the crimes
committed in Denmark, and since desertion from the army in Iran did
not appear to carry a punishment which would affect Denmark's
obligations under the Convention.
The applicant submitted in particular that he fulfilled the
requirements for asylum in Denmark, that he risked prosecution for
deserting from the army and for the crimes committed in Denmark, which
again could lead to execution after a trial which could not be
considered fair. He maintained that an expulsion would be contrary to
the Convention and its Protocols and furthermore referred to the general
situation in Iran which could only be described as still being
unclear.
Upholding on 2 May 1991 the High Court's decision, the Supreme
Court stated that, having regard to the nature of the offences
committed by the applicant in Iran, there was no reason to assume that
his expulsion would constitute a breach of the European Convention on
Human Rights. Furthermore, the Supreme Court stated that there was no
particular reason to assume that the applicant would be prosecuted in
Iran for the offences of which he had been convicted by the High Court
of Western Denmark on 2 April 1987, a reason which might otherwise
have made his expulsion a measure contrary to the Convention.
COMPLAINTS
The applicant submits that upon release from prison he will be
detained immediately by the police and expelled to Iran on the basis
of the judgment of 2 April 1987 and the decision of the Supreme Court
of 2 May 1991. The applicant alleges that a return to Iran would
expose him to an extreme risk of being subjected to treatment contrary
to Article 3 of the Convention or, even worse, execution.
In support of his allegation, the applicant submits that the
reason for granting him asylum in 1984 was the fact that he had
deserted from the army and the general situation in Iran. On 19
November 1986 the Aliens Board had maintained that he could only be
sent to Iran if the situation in Iran would change. The applicant
submits, however, that there has been no such change in Iran and this
has not been disputed by the Danish authorities. However, the
authorities may nevertheless expel him by virtue of Section 31 para. 2
of the Aliens Act which permits expulsion regardless of the fact that
a serious risk of persecution exists.
The applicant does not necessarily want to remain in Denmark,
but he wants a guarantee that he will be sent to a country where he
does not risk treatment contrary to Article 3 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 21 March 1990 and registered
on 2 April 1990.
On 6 April 1990 the Commission decided to bring the
application to the notice of the respondent Government and to invite
them to submit observations on its admissibility and merits. It was
also decided to indicate to the Government, in accordance with 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 expel the applicant to Iran until the Commission had had an
opportunity to examine the application further.
The Commission's indication under Rule 36 of its Rules of
Procedure was lifted on 7 September 1990 after the Commission had been
informed that the expulsion question was pending before the Danish
courts and that the applicant did not risk expulsion before these
proceedings had come to an end.
On 7 May 1991 the Government informed the Commission that the
Supreme Court, on 2 May 1991, had decided that the expulsion order
could be enforced and that the applicant could be expected to be
expelled on 16 May 1991.
On 13 May 1991 the Acting President of the Commission decided
to indicate to the Government, in accordance with 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 expel
the applicant to Iran until the Commission had had an opportunity to
examine the application further. The Acting President also fixed the
time-limit for the submission of the Government's observations on
admissibility and merits at 24 May 1991.
The Government's observations were submitted on 23 May 1991.
The applicant submitted observations in reply on 3 June 1991.
On 6 June 1991 the Commission decided to invite the parties to
appear before it at a hearing on admissibility and merits. It was
furthermore decided to grant legal aid.
At the hearing, which was held on 8 July 1991, the parties
were represented as follows:
The Government
Mr. Tyge Lehmann Ministry of Foreign Affairs, Agent
Mr. Michael Elmer Ministry of Justice, counsel
Mr. Finn Abrahamsen Ministry of Foreign Affairs, counsel
Ms. Lene Larsen Ministry of Justice, counsel
Mr. Arne Tornvig Christensen National Police Commissioner's Office, counsel
The applicant
Mrs. Helle Lokdam Counsel for the applicant
Following the hearing the Commission decided to adjourn the
case and to obtain from the parties further documentary evidence. This
evidence was submitted on 26 August 1991.
THE LAW
The applicant complains that, if expelled to Iran, he will be
subjected to treatment contrary to Article 3 (Art. 3) of the
Convention. He also complains that upon his return to Iran he will be
prosecuted there for the offences of rape and attempted rape committed
in Denmark, for which he risks receiving the death penalty. He
invokes in this respect Article 1 of Protocol No. 6 (P6-1) to the
Convention.
Article 3 (Art. 3) of the Convention reads:
"No one shall be subjected to torture or to inhuman or
degrading treatment or punishment."
Article 1 of Protocol No. 6 (P6-1) to the Convention reads:
"The death penalty shall be abolished. No one shall be
condemned to such penalty or executed."
In support of his complaints the applicant submits that it
would be in breach of the Convention to expel a person who fulfils the
conditions for obtaining the legal status of refugee. In this respect
the applicant recalls that the Danish Aliens Board still maintains
that he fulfils these conditions, which means that he would be in
danger if he were to return to Iran. The general situation in Iran is
very unclear and unreliable and upon arrival in Iran he will not be in
possession of a valid travel document which in itself will lead to his
arrest. His prolonged absence from Iran is likely to attract special
attention and his original reason for applying for asylum in Denmark,
i.e. that he deserted from the army, as well as the fact that he has
lived as a de facto refugee in Denmark since 1984 will strengthen the
suspicion of sympathies and activities contrary to the Iranian
Government's policies.
Furthermore, the applicant submits that it is undisputed that
the Iranian authorities do not as such recognise judgments by foreign
courts which do not operate in accordance with Islamic law. His
criminal case and his expulsion case have attracted a lot of media
attention which undoubtedly has been registered by the Iranian
embassy. It is likely, therefore, that he will have to stand trial in
Iran for the offences committed in Denmark which in Iran carry the
death penalty. As regards the evidence required for that trial the
applicant submits that the Iranian courts would attach great
importance to the Danish judgment and the assessment made by the
Danish court.
Accordingly, the available information about the Islamic Penal
Code together with the available knowledge of how law and order is
practised in Iran and the uncertainty which is connected with the
evaluation of the circumstances, in particular in the light of the
limited information available to the Danish authorities, must lead to
the conclusion that there would be a serious risk that an expulsion
would expose the applicant to treatment contrary to the provisions
invoked. He should in any event be given the benefit of any doubt in
this respect.
The Government submit that expulsion as a consequence of
serious crimes committed by an alien is inherent in every legal system
in Europe. Danish law prescribes that decisions concerning expulsion
are always made by judicial bodies which inter alia must take into
consideration whether an expulsion would expose the person in question
to ill-treatment in the receiving country. Information of a general and
concrete nature in this respect is provided by the Ministry of Foreign
Affairs through Danish and other countries' diplomatic missions, as
well as international organisations, such as the UNHCR and Amnesty
International. The Government accept that the human rights situation
in Iran continues to cause serious concern which is also reflected in
critical resolutions, sponsored inter alia by Denmark and adopted by the
United Nations General Assembly. However, although it is not possible
to issue any guarantees to aliens being returned to their country of
origin, the Government submit that each case must be considered on its
own merits. This view is supported by a report of May 1990, drawn up
by eight western embassies in Tehran, which concluded that a blanket
policy of not returning Iranians to Iran was no longer appropriate.
As regards the applicant's situation the Government submit
that all usual sources of information, as mentioned above, were used
in order to enable the authorities and subsequently the courts to
reach a conclusion on the question of expelling the applicant to Iran.
In particular the Supreme Court was fully informed of the situation in
Iran and of the expected situation of the applicant upon his possible
return. This information shows that the mere fact that the applicant
applied for asylum abroad is not penalised under Iranian law. It is,
however, an offence to leave Iran illegally and the applicant may be
punished by one to two years' imprisonment or a fine. Furthermore, it
can be expected that the applicant is registered as a first-time
deserter. The Iranian provisions on desertion are found in a circular
of 23 September 1988 issued by the Iranian Ministry of the Interior
which shows that the applicant can only expect additional military
service.
As regards the risk of being prosecuted again for the offences
committed in Denmark the Government agree that Iranian courts do not
accept judgments pronounced by courts which do not apply Islamic law.
They also accept that the penalty for rape is execution. However, they
submit that Iran does not try a crime committed abroad where the case
has been tried and the sentence served abroad. Furthermore, having
regard to the Iranian rules on evidence, as set out in the Iranian
Penal Code, it would be impossible in practice legally to convict the
applicant for the offences committed in Denmark.
Finally, the Government submit that they are prepared to
instruct their embassy in Tehran, if the applicant so wishes, to
follow his case to the extent possible.
Against this background the Government contend that they have
made a thorough investigation into the applicant's case which shows
that there is no substantial risk that he will be subjected to
treatment contrary to the Convention or its Protocols if returned to
Iran.
The Commission recalls the case-law of the Convention organs
according to which the right of an alien to reside in a particular
country is not as such guaranteed by the Convention. However, the
decision of a Contracting State to expel a person may give rise to an
issue under Article 3 (Art. 3) of the Convention, and hence engage the
responsibility of that State under the Convention, where there is a
substantial risk that the person, if expelled, will be subjected to
treatment contrary to Article 3 (Art. 3) of the Convention in the receiving
country (see Eur. Court H.R., Soering judgment of 7 July 1989, Series
A no. 161, p. 35 et seq., para. 91, and No. 12102/86, Dec. 9.5.86, D.R.
47 p. 286).
The question arises whether analogous considerations apply to
Article 1 of Protocol No. 6 (P6-1) to the Convention, in particular whether
this provision equally engages the responsibility of a Contracting
State where, upon expulsion, the person concerned faces a real risk of
being subjected to the death penalty in the receiving State. However,
the Commission need not resolve this question since the complaints at
issue are in any event manifestly ill-founded for the following
reasons.
The examination of the present case involves, on the one hand,
the applicant's personal situation and, on the other, the general
situation in Iran. For this purpose the parties have provided copies
of all relevant material which was at the disposal of the Danish
authorities. This material includes information on Iranian law, United
Nations and Amnesty International reports on Iran, information
concerning the applicants' personal situation and reports supplied
through diplomatic missions in Iran. Having regard thereto the
Commission finds that the general situation in Iran at present is not
of a kind that an expulsion would as such amount to a violation of the
Convention or its protocols. In order to raise an issue under the
provisions invoked there should accordingly be some substantiation as
to the existence of a specific risk of treatment contrary to these
provisions in the particular circumstances of the case.
The Commission recalls that upon his arrival in Denmark in
1984 the applicant stated that he had never been a member of any
political organisation or otherwise been politically active. The
examination of his case has not produced any evidence to the
contrary for which reason the Commission finds it established that
there exists no substantial risk for the applicant that he will suffer
ill-treatment because of political activities.
On the other hand the Commission finds it likely that the
applicant will be arrested upon arrival in Iran due to lack of travel
documents and handed over to the military authorities due to the fact
that he deserted from the army. This would, according to information
available to the Commission, in all probability lead to an obligation
to do prolonged military service. However, the Commission recalls that
the mere fact that an applicant would be obliged to perform military
service cannot as such raise an issue under Article 3 (Art. 3) or any other
provision of the Convention and this conclusion is not changed by the
fact that military service might be prolonged (see No. 4314/69, Dec.
2.2.70, Collection 32 p. 97 and No. 14401/88, Dec. 12.1.91, to be
published in D.R.). Furthermore, the applicant has not shown that he
has other serious grounds for fearing that, upon his return to Iran,
his evasion of military service would subject him to treatment
contrary to the provisions invoked by him.
As regards the applicant's criminal record the Commission
finds it established that the Iranian courts do not accept judgments
pronounced by courts which do not operate in accordance with Islamic
law. Furthermore, it is clear that the criminal offences of which the
applicant was convicted in Denmark carry, in Iran, the death penalty.
The Commission cannot find, however, that there is a substantial risk
that the applicant will be prosecuted again for these offences. First
of all the Commission recalls that the present case does not concern
an extradition request made by the Iranian authorities and, according
to the documents submitted, the Iranian authorities will not, either
from Denmark or through Interpol, receive any information of the
applicant's activities in Denmark. Secondly, the Government submit
that according to their sources of information Iranian courts do not
try crimes committed abroad where the case has been tried and the
sentence served there, an assessment which the applicant has not in
any way shown to be incorrect. Thirdly, the Commission finds that the
applicant has not submitted any evidence which could lead it to
conclude that the collection of the evidence required in order to
allow an Iranian court to convict him of the crimes committed in
Denmark would be within any practical possibility. Finally, the
Commission has noted the respondent Government's offer to instruct
their embassy in Tehran, if the applicant so wishes, to follow his
case to the extent possible.
As a result the Commission finds that the applicant has failed
to show that the Danish authorities would expose him to a serious risk
of treatment contrary to Article 3 (Art. 3) of the Convention or
Article 1 of Protocol No. 6 (P6-1) to the Convention should they expel
him to Iran.
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 by a majority
DECLARES THE APPLICATION INADMISSIBLE.
Deputy Secretary to the Commission Acting President of the Commission
(J. RAYMOND) (J.A. FROWEIN)
Full & Egal Universal Law Academy