AS TO THE ADMISSIBILITY OF
Application No. 21524/93
by R.A. and L.A.
against Sweden
The European Commission of Human Rights sitting in private on
9 July 1993, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
F. ERMACORA
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
Mrs. G.H. THUNE
Sir Basil HALL
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
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 15 December 1992
by R.A. and L.A. against Sweden and registered on 12 March 1993 under
file No. 21524/93;
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 4 June 1993 and the applicants' observations in reply
submitted on 25 June 1993;
Having deliberated;
Decides as follows:
THE FACTS
The first applicant is a Turkish citizen, born in 1953. The
second applicant, his wife, is also a Turkish citizen, born in 1964.
Since 1990 they are staying in Sweden. They are represented by
Mr. O. Larsson, a lawyer practising at Värnamo, Sweden.
The facts as presented by the applicants when heard by the
Swedish police are as follows.
Both applicants are of Kurdish origin.
The first applicant lived at Mardin until he was seven years old,
when the family moved to Izmir. He finished his schooling at Izmir and
then studied to become a teacher and an engineer. He first married in
1982 and has a daughter born in 1983, who is in her mother's care. He
re-married the second applicant in 1986 or 1987, and they have a
daughter, born in 1988. The second applicant has a son, born in 1984,
from a previous marriage. These two children are with the applicants
in Sweden.
The first applicant performed his military service in 1973-75,
first in Ankara and then in Cyprus. Subsequently he became a member of
the Kurdish Communist Party, the PKK, and has as a teacher informed
other Kurds about the Turkish oppression. In 1986 the authorities
dismissed him as a teacher. He continued however to do voluntary work
in the Kurdish villages and earned his living by working as an
electrician.
In the beginning of 1989 the first applicant and 11 other Kurds
made an armed attack on a gendarmerie station in the mountains at a
place called Siirt. Their weapons were M-1-guns (a sort of machine-
guns) and Smith & Wesson pistols. The attack was carried out because
the gendarmes had shot at villages in the mountains. It started when
the applicant and the other Kurds threw hand-grenades into the
building. The result was that thirteen gendarmes were killed and the
rest were seriously injured. The gendarmes never had any chance of
opening fire. When the first applicant entered the building by a
window, he hurt his leg seriously. Kurdish doctors sutured his leg, and
he has now two long scars on his leg. In subsequent submissions to the
Swedish authorities the first applicant has pointed out that he only
participated in the initial stage of the attack because of his
injuries.
The first applicant has also participated in several minor
attacks. On two occasions he also smuggled weapons from Syria into
Turkey. He does not know exactly what kind of weapons he smuggled but
believes they were hand-grenades and other weapons as well as "first-
aid".
In the beginning of 1989 the first applicant and seven other
Kurds were instructed to attack the office of Turkish Airlines in Urfa.
They poured out petrol and set fire to the airline office which burned
down entirely. No persons were in the airline office on that occasion.
The first applicant subsequently stated to the Swedish authorities that
they knew that no person would be hurt by the attack.
In February 1989 the second applicant was ill-treated in her home
by members of the civilian military security militia who wanted to get
hold of the first applicant. However, he was not at home and the second
applicant was hit in her face and on her body.
The first applicant has been arrested twice: in April 1989 he was
questioned about the armed attack on the gendarmerie station, but
released after 24 hours as there was nothing to prove his participation
in the attack; shortly thereafter he was again questioned for a short
period of time about the whereabouts of a certain person. He has not
otherwise been arrested or detained. However, he has been sentenced in
his absence to six years and three months' imprisonment because the
authorities found weapons in his flat after he had left Turkey.
According to information he has received he is sought by the Turkish
authorities.
The first applicant considers that, if he returns to Turkey, he
risks being sentenced to death and executed.
The second applicant was born in Beirut in Lebanon and lived
there until 1985 when she moved to Mardin in Turkey. Her parents are
Kurds. She has been a member of the PKK since 1985 but has not held any
leading position. She has helped the organisation with minor things
(economic help, care of sick PKK members, distribution of pamphlets).
She has not been sentenced for any political offence. She considers
that, if she returned to Turkey, she would also - like her husband -
be sentenced to death. In subsequent submissions to the Swedish
authorities the second applicant has modified her statement by claiming
to have held a comparatively high position within the local PKK
organisation.
With the help of relatives or friends, who bribed the officials,
the applicants managed to obtain regular Turkish passports and they
left Turkey on 27 December 1989 by bus and went through Bulgaria to
Yugoslavia. There they met some Iranians who advised them to go to
Sweden. They therefore flew to Warsaw and went by train to Swinoujscie
where they took the boat to Sweden.
In Sweden they requested, relying on the facts mentioned above,
political asylum. They were heard by the police in January and February
1990. In support of their claim that the first applicant was sought by
the authorities they submitted a document dated 2 March 1990 in which
the District Court at Bornova requested the local public prosecutor to
determine the first applicant's address and to bring him to the court
hearing which was to take place on 6 April 1990 at 9:30 hours.
On 5 April 1991 the National Immigration Board (Statens
invandrarverk) decided not to take any decision of its own on the
request for asylum but to refer the matter to the Government. On 3 May
1991 the Board recommended that the applicants and their children
should not be allowed to remain in Sweden. The Board also indicated
that the first applicant's activities in Turkey were such as to give
rise to the question whether they should not be refused asylum on the
basis of Chapter 3, Section 4 second paragraph No. 1 of the Aliens Act
(utlänningslagen 1989:529), which deals with cases where there are
special reasons not to grant asylum because of the alien's previous
activities or in the interest of national security.
On 22 October 1992 the Government decided not to grant the
request for asylum and ordered that the applicants and their children
should be expelled and prohibited from returning to Sweden before
1 November 1994 without permission by the National Immigration Board.
From the decision it appears that the Security Police had submitted its
comments on 7 March 1991 and 12 June 1992. The Government stated that
the applicants and their children were not to be regarded as refugees
or as so-called de facto refugees. However, according to the 1991
Ordinance on Residence Permits in Certain Cases (förordning 1991:1999
om uppehållstilstånd i vissa utlänningsärenden) they could
nevertheless, in view of the time they had spent in Sweden after
submitting their request, be granted permits to stay unless there were
special reasons against such a decision. The Government then concluded:
"The Government considers, against the background inter alia of
the information provided by the Security Police, that there are
special reasons not to grant (the applicants) and their children
residence permits despite the fact that they have stayed in
Sweden for a long time.
(The applicants) and their children shall therefore be expelled
in accordance with Chapter 4, Section 1 first paragraph No. 2 of
the Aliens Act and be prohibited from returning to Sweden in
accordance with Chapter 4, Section 14 of the Act".
Relevant domestic law
Under Chapter 3, Section 1, 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 in certain circumstances, for
instance where there are special reasons for not granting asylum in
view of what is known about the alien's previous activities or in the
interest of national security (Chapter 3, Section 4, second paragraph
No. 1).
A refusal of entry issued by the National Immigration Board may
be combined with a prohibition on return for a specific period of time
(Chapter 4, Section 14).
The National Immigration Board may, for special reasons, refer
a request for asylum to the Government together with its opinion in 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 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 particular 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).
Under the 1991 Ordinance on Residence Permits in Certain Cases
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.
COMPLAINTS
The applicants complain of violations of
(a) Article 3 of the Convention in that they would upon their return
to Turkey be subjected to treatment contrary to that Article;
(b) Article 6 of the Convention in that their request for asylum has
not been decided within a reasonable time; and
(c) Article 13 of the Convention in that there is no appeal against
the Government's decision.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 15 December 1992 and registered
on 12 March 1993.
On 3 May 1993 the Commission decided to communicate the
application as regards the applicants' complaint that their expulsion
would violate Article 3 of the Convention. On the same day the
Commission also decided to issue an indication to the Swedish
Government under 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 applicants to Turkey until the
Commission had had an opportunity to examine the application.
The observations were submitted by the respondent Government on
4 June 1993. The applicants' observations in reply were submitted on
25 June 1993.
THE LAW
1. The applicants complain of a violation of Article 3 (Art. 3) of
the Convention, which provides as follows:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
The applicants have stated that they have both been members of
the PKK and that for that reason they run special risks of ill-
treatment or even execution if they return to Turkey. The first
applicant has also stated that he has been actively involved in acts
of violence in Turkey resulting in loss of human lives and destruction
of property.
The Commission recalls that the Contracting States have the right
to control the entry, residence and expulsion of aliens and that
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 that 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., para. 103). A mere possibility of ill-
treatment is not in itself sufficient (ibid., para. 111).
In the present case, the first applicant has stated that he is
wanted by the Turkish authorities and has referred to a document dated
2 March 1990 according to which a public prosecutor was requested by
the local Turkish District Court to establish the first applicant's
address and to bring him to a court hearing on 6 April 1990 at 9:30
hours. The first applicant has also referred to the fact that he has
been sentenced in absentia to six years and three months' imprisonment.
The Government submit that the applicants' complaint under
Article 3 (Art. 3) is manifestly ill-founded as there are no
substantial grounds for believing that the applicants would face a real
risk of treatment contrary to this Article upon their return.
They stress that the conditions to be met for allowing the
enforcement of an expulsion decision are the same under the Aliens Act
as under Article 3 (Art. 3) of the Convention and that the Government
consider the possibility of enforcement already when the expulsion
decision is taken, although in the instant case no specific conclusion
on this point was mentioned in the Government's decision. Accordingly,
the Government have already carefully considered the problems relevant
under Article 3 (Art. 3) of the Convention. They have found that the
general situation in Turkey is not, despite the specific criticisms
directed against the police in respect of its treatment of persons held
in custody (see the report presented by the Committee for the
Prevention of Torture and Inhuman and Degrading Treatment - CPT/Inf
(93)1) and the problems in the Kurdish areas of the country, such as
to create a general obstacle against the enforcement of expulsions to
Turkey, be it of persons of Kurdish origin or not. In addition, they
stress the fact that Turkish citizens of Kurdish origin reside in many
parts of Turkey and that they also hold prominent positions in the
Turkish society. In view hereof, the Government find that the risk of
treatment contrary to Article 3 (Art. 3) can only be assessed in the
light of the particular circumstances of each case.
As to the present case, the Government state that they based
their conclusion that the applicants were not political refugees on the
information provided by the applicants in the domestic proceedings.
Nevertheless, the Government have serious doubts as regards the
veracity of the first applicant's allegations, in particular as regards
his participation in the armed attacks and in the weapon smuggling from
Syria. The Government point out that the document dated 2 March 1990,
the authenticity of which they have not examined, has not been issued
by one of the special anti-terrorist courts usually in charge of
investigations of this kind of crime, but by an ordinary civil court.
In addition, the document does not indicate whether the first applicant
is summoned as a witness or as an accused. The Government find that
there is no other indication that he is wanted: after having been
interrogated by the police after the armed attack on the gendarmerie
station the applicant was released as there was nothing to link him to
the event; he has not submitted any evidence to the fact that he has
been sentenced in absentia for illegal possession of firearms; the
family could leave Turkey holding valid passports, something which
appears impossible if the first applicant had been wanted for the
crimes he alleges to have committed.
As to the evaluation of the risks incurred, the Government stress
that it must in the first place be for the domestic authorities to
evaluate the evidence presented since they are better equipped to do
so. They also point out, relying on the Handbook on Procedures and
Criteria for determining Refugee Status published by the United Nations
High Commissioner for Refugees, that the burden of proof must be on the
refugee in respect of all questions where there is contradictory or
deficient information.
The Government further observe that the information provided by
the first applicant implies that he has taken part in very serious
crimes in a member State of the Council of Europe, and that, to the
extent that this information is true, the correct thing to do would be
to inform the Turkish authorities so that they may request his
extradition. In any case, this fact should not constitute a reason for
granting him or his family residence permits in Sweden as political
refugees.
Finally, the Government observe that the organisation PKK, of
which the applicant claims to be a member, is well-known for having
carried out a number of terrorist acts, both in Turkey and in other
parts of Europe. In Sweden, two killings have been proven to have been
ordered and carried out by members of the organisation. The Government
submit that there are strong national security reasons not to grant PKK
members residence permits in Sweden.
As regards the second applicant the Government find that the risk
of ill-treatment is even less substantiated than in the first
applicant's case.
The applicants have replied that they do not wish to have the
right to reside in Sweden but only the right not to be expelled to
Turkey. However, as a result of the refusal to grant the applicants
political asylum it is true that they can only go to Turkey.
The applicants raise serious objections as to the manner in which
the Swedish Government have dealt with their case. The first applicant
stresses that he has already from the beginning given the Swedish
authorities a complete version of his activities for the PKK in Turkey
and that he has relied, inter alia, on the document dated 2 March 1990
from the District Court of Bornova and his conviction in absentia.
During the three years which their case has been pending in Sweden the
veracity of the information submitted has not been questioned. This is
evident already from the Government's decision refusing political
asylum, as this decision does not mention any doubts in this respect.
In this context the applicants draw the Commission's attention to the
Handbook published by the United Nations High Commissioner for Refugees
and point out that the relevant provision does not only state that the
burden of proof rests on the applicant, as maintained by the
Government, but adds that "the duty to ascertain and evaluate all the
relevant facts is shared between the applicant and the examiner" and
that "[i]ndeed, in some cases, it may be for the examiner to use all
the means at his disposal to produce the necessary evidence in support
of the application". The applicants claim that they have met their
obligations as far as the production of evidence is concerned.
Accordingly, they do not consider that their application to the
Commission requires a new assessment by the Commission of the evidence
produced. If the Government have badly motivated their decision this
shall not be held against the applicants.
The applicants state that they are prevented by the Swedish
secrecy rules from commenting on their membership in the PKK and on the
Swedish security police's observations on this point. They state,
however, that they left the organisation when they fled from Turkey and
that they have had no further contacts with it.
The applicants observe that the reason why they could leave
Turkey with valid passports was the help they received from Kurds
holding important posts within the administration. The applicants
stress that the Government have not questioned this information in the
expulsion decision and that, accordingly, the present objection looks
like an attempt to create, retrospectively, a justification for the
decision.
The applicants finally submit that it is a well-known fact that
prisoners are regularly tortured and maltreated in Turkish prisons. It
must be considered established that the first applicant has been
sentenced, in absentia, to a six year prison sentence. There can,
accordingly, be no doubt that at least he will be arrested upon his
return and sent to a Turkish prison and, thus, exposed to a real risk
of treatment contrary to Article 3 (Art. 3). The applicants stress that
they can no longer enter Turkey discretely as their passports have
expired. They submit that what the Commission must examine is whether
or not the conditions of imprisonment in Turkey are such that the
expulsion of the applicants to serve prison sentences there violates
Article 3 (Art. 3) of the Convention.
The Commission notes that, if the first applicant's own statement
about the activities in which he has been involved in Turkey is true,
it would be understandable if the Turkish authorities were interested
in bringing him to justice on charges of offences against Turkish law.
This cannot in itself raise any issue under Article 3 (Art. 3) of the
Convention.
The question under Article 3 (Art. 3) is limited to whether or
not there is a sufficient risk that the first applicant will be
subjected in Turkey to torture or to treatment which is inhuman or
degrading. The Commission notes in this respect that he has not
submitted any material capable of substantiating his allegations that
he has participated in the violent and illegal activities which he has
described or that he has been convicted in absentia. Nor has he
presented any material to the effect that he would be wanted by the
Turkish authorities for some other reason of relevance for his present
complaint under Article 3 (Art. 3). In these circumstances the
Commission does not find that substantial grounds have been shown for
believing that the first applicant faces a real risk of being subjected
to treatment contrary to Article 3 (Art. 3).
As regards the second applicant, the Commission notes that, while
she states that she has been a member of the PKK, it does not appear
that she has performed any important activities on behalf of the
organisation. In her case, there is no reasonable ground for believing
that the Turkish authorities would have any particular interest in her
person. No risk of treatment contrary to Article 3 (Art. 3) can
therefore be considered to have been substantiated in her case.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicants have further complained that their request for
asylum was not decided within a reasonable time, contrary to Article
6 (Art. 6) of the Convention, which provides that, in the determination
of his civil rights and obligations or of a criminal charge against
him, everyone shall be entitled to a hearing before a court within a
reasonable time.
The Commission observes, however, that according to its case-law
(No. 8118/77, Dec. 19.3.81, D.R. 25 p. 105) the determination of a
request for asylum or for a residence permit does not concern the
determination of a civil right or of a criminal charge. The applicants
complaint is therefore in this regard incompatible with the provisions
of the Convention, within the meaning of Article 27 para. 2 (Art. 27-2)
of the Convention.
3. Finally, the applicants complain of a violation of Article 13
(Art. 13) of the Convention in that they did not have a legal remedy
against the Government's decision to reject their request for asylum.
Article 13 (Art. 13) provides that everyone whose Convention rights are
violated shall have an effective remedy before a national authority.
The Commission notes that in the present case the National
Immigration Board refrained from taking a decision of its own on the
applicants' requests for asylum and decided to refer the matter to the
highest authority, which in this case was the Government. Where a
violation of the Convention is alleged to have been committed by the
highest court or authority, the application of Article 13 (Art. 13) is
subject to an implied limitation since that Article cannot be
considered to require that a special body should be instituted for the
purpose of examining complaints against decisions by the highest courts
or authorities (Nos. 8603/79, 8722/79, 8723/79 and 8729/79, Dec.
18.12.80, D.R. 22 p. 147; Cruz Varas and Others v. Sweden, Comm. Report
7.6.90, Appendix II p. 42).
It follows that the complaint relating to Article 13 (Art. 13)
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.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
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