AS TO THE ADMISSIBILITY OF
Application No. 26485/95
by R.H. and M.E.
against Sweden
The European Commission of Human Rights sitting in private on
22 May 1995, the following members being present:
MM. C.A. NØRGAARD, President
H. DANELIUS
C.L. ROZAKIS
E. BUSUTTIL
G. JÖRUNDSSON
S. TRECHSEL
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
M.A. NOWICKI
N. BRATZA
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
Mr. M. de SALVIA, 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 18 January 1995
by R.H. and M.E. against Sweden and registered on
10 February 1995 under file No. 26485/95;
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 applicants, mother and daughter, are both Iranian citizens
of Kurdish origin. They were born in 1960 and 1988, respectively. They
are currently staying in Sweden awaiting their impending expulsion to
Iran. Before the Commission they are represented by Mr. Leif Rydberg,
a lawyer at Bergshamra.
The facts, as submitted by the applicants, may be summarised as
follows.
Particular circumstances of the case
The applicants entered Sweden on 8 January 1993 and immediately
applied for asylum and, alternatively, a residence permit on
humanitarian grounds. The applicant mother stated that she feared being
executed in Iran or being sentenced to imprisonment for having
illegally left the country.
In the asylum request the applicant mother alleged, inter alia,
that she had been a member of the People's Mojahedin Organisation of
Iran ("PMOI") during her student years 1978-82. Her participation had
consisted of distributing tracts and other publications. She had
participated in demonstrations and had also collected medicine, food
and money for the Kurds. In 1979 she had been arrested and detained for
two days. During her detention she had been assaulted. Her father had
also been tortured and subjected to a staged execution. In 1983 she had
begun distancing herself from PMOI. The same year she had been
temporarily barred from continuing her university studies. In 1987 she
had married S. but they had divorced the same year. In 1988 a daughter
(the second applicant) had been born to them. The applicant mother had
been granted sole custody of the daughter, while S. had been granted
access rights. In 1990 the applicant mother had been dismissed from a
teaching post. In support of her last-mentioned allegation she invoked
a copy of a letter from the Security Agency within the Iranian
Department of Education dismissing her on account of her political
activities within PMOI and her activities against the Iranian regime.
She furthermore alleged that she had generally been discriminated
against on account of her Kurdish origin. She also claimed to be an
active Sunni Muslim.
In the asylum proceedings the applicant mother, moreover, alleged
that, in March 1992, while the applicants had been staying with her
parents in Teheran, she had noticed that their telephone was being
tapped. On 4 September 1992 her father had been contacted by an
infiltrator stating that the applicant mother was wanted by the Iranian
Security Agency ("Savama"). In November 1992 her parents had been
arrested and briefly detained, allegedly because of her. The applicants
had stayed in Teheran until 21 November 1992, following which they had
travelled to Bosheher and Bandar Abbas in southern Iran in order to
prepare their departure from the country. On 5 January 1993 they had
left Iran for Dubai, assisted by smugglers. From Dubai they had flown
to Amsterdam, from where they continued to Copenhagen and Stockholm.
The applicants had allegedly never had any valid Iranian passport and
had therefore left the country with a forged passport valid for both
of them. The smugglers had allegedly accompanied the applicants to
Amsterdam, where they had taken their passport back.
In a letter to the National Immigration Board (Statens
invandrarverk) of 21 February 1993 the Iranian Embassy in Sweden
transmitted a letter from S. concerning the applicants. According to
S., the applicant mother had threatened to leave Iran for Sweden
together with their daughter. He had therefore not authorised the
daughter's inclusion in the applicant mother's passport. Her previous
passport had expired on 24 August 1992, following which she had
received a new one. In support of his contentions S. submitted a copy
of a certificate of 18 February 1993 issued by the Passport Office of
the Karaj Disciplinary District indicating the dates and numbers of the
passports. He also submitted a copy of an order by the Justice
Administration of the East Azarbaijan Province Justice Office to the
Head of the Iranian Passport Department, requesting it to prevent the
exit of the applicant daughter from the country and not to issue any
passport to the daughter, who was said to be "under the fostering of
her mother ... without the permission of her father".
In a letter to the National Immigration Board of 21 May 1993 the
Iranian Embassy in Sweden inquired into the applicant mother's address
in Sweden. The Embassy stated that it needed "to come into contact with
[her] on a matter of great urgency". The address was not divulged by
the Board and on 7 July 1993 the National Immigration Board informed
the applicant of the inquiry.
In response to S.'s intervention before the National Immigration
Board the applicant mother claimed that S. was cooperating with the
Iranian regime. She suspected that he had supplied the authorities with
information about her previous political activities which to some
extent was untruthful.
On 10 November 1993 the National Immigration Board rejected the
applicants' request for asylum and a residence permit, finding that the
applicant mother's account of her background was not sufficiently
credible. It noted, among other things, her assertion that she had left
Iran without a valid Iranian passport. It observed, however, that the
applicant mother had not been politically active since 1983 and,
although she had been dismissed from her post in 1990, she had
nevertheless been granted a passport in 1992, as shown by S..
In her appeal to the Aliens Appeals Board (Utlänningsnämnden) the
applicant stated, among other things and contrary to her previous
submissions, that she had held an Iranian passport during the regime
of the Shah up to 1979. She furthermore stated that she had distanced
herself from PMOI in 1983 because she had been allowed to continue her
studies on condition that she would no longer be politically active.
On 24 October 1994 the Aliens Appeals Board rejected the appeal.
It noted that the applicant mother had, in 1990, not been allowed to
teach. Given that her political past had been known to the authorities
already in 1983, the Board considered it unlikely, however, that the
Iranian authorities would show an interest in her on account of her
political past as late as 1990. The Board furthermore found no reason
to question the indication that she had held a valid passport until
1992, when it had been renewed.
The applicants subsequently requested a residence permit on
humanitarian grounds, alleging that the applicant mother had been
denounced to the Iranian authorities by S. and referring, inter alia,
to the attempts by the Iranian Embassy to get int touch with her in
Sweden.
On 21 November 1994 the Aliens Appeals Board rejected the
request.
In March 1995 the applicants lodged a fresh request for a
residence permit on humanitarian grounds, stating that the applicant
mother had converted to Christianity and had been baptised on
20 March 1995.
On 6 April 1995 the Aliens Appeals Board rejected the request.
The Board had been in contact with the applicant mother's priest, who
had certified that her Christian faith was genuine. It noted, however,
that the applicant mother had been introduced to the priest by her
counsel. Before she had been baptised the applicant mother and the
priest had met on one occasion only, on 14 March 1995. In her previous
submissions to the Swedish authorities she had not stated that she had
been concerned with her religious faith. The applicants' fresh request
had been lodged with the Board three days after the applicant mother
had been baptised. Having assessed all circumstances, the Board found
serious reasons to question the genuine character of her conversion.
It further found it unlikely that the baptism had become known to the
Iranian authorities.
The applicant mother has a brother in Sweden who appears to be
a Swedish citizen. He was previously politically active in Kurdish
areas. She also has four uncles and two aunts in Sweden.
Relevant domestic law
According to the 1989 Aliens Act (utlänningslag 1989:529), a
residence permit may be granted to an alien for humanitarian reasons
(chapter 2, section 4, subsection 1 (2)). A request for a residence
permit lodged by an alien, who is to be refused entry or expelled by
a decision which has acquired legal force, may only be granted if the
request is based on new circumstances and provided the applicant is
either entitled to asylum or there are weighty humanitarian reasons for
allowing him or her to stay in Sweden (chapter 2, section 5, subsection
3). As from 1 July 1994 a request pursuant to chapter 2, section 5,
shall be lodged with the Aliens Appeals Board.
When considering whether to refuse an alien entry or to expel him
or her, the authorities must examine, pursuant to chapter 8, sections
1-4, of the Aliens Act, whether he or she can be returned to a
particular country or whether there are other special obstacles to the
enforcement of such a decision. If the enforcement meets no obstacles
under chapter 8, an alien is to be expelled or returned to his or her
country of origin or, if possible, to the country from which he or she
came to Sweden. If the decision cannot be put into effect in the manner
indicated above or if special reasons exist, the alien may be sent to
another country (chapter 8, section 5).
If the enforcing authority finds that the enforcement cannot be
carried out or that further information is needed, it shall notify the
National Immigration Board 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).
COMPLAINTS
The applicants fear that their return to Iran would subject them
to a risk of being ill-treated on account of both the applicant
mother's political past and their allegedly illegal departure from the
country which was, moreover, in violation of the access arrangements
ordered in respect of the applicant child. The applicants refer, inter
alia, to the interest shown by the Iranian Embassy in their whereabouts
in Sweden. The applicant mother has allegedly also received
correspondence from S. at her address in Sweden with an indication of
her client number at the National Immigration Board on the envelope.
The applicants therefore fear that they have been denounced to the
Iranian Government by S. and infiltrators in Sweden. In the applicants'
further submissions of 5 May 1995 reference is also made to the
applicant mother's conversion from Islam to the Christian faith.
The applicants invoke Articles 1, 2, 3, 5, 8, 9, 10, 11 and 14
of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 18 January 1995 and registered
on 10 February 1995.
On 25 January 1995 the President of the Commission found no
basis, under Rule 36 of the Commission's Rules of Procedure, for an
indication to the respondent Government that it would be desirable in
the interest of the parties and the proper conduct of the proceedings
before the Commission not to expel the applicants to Iran until the
Commission had examined the application further.
THE LAW
The applicants fear that their return to Iran would subject them
to a risk of being ill-treated, both on account of the applicant
mother's political past and their allegedly illegal departure from the
country which was, moreover, in violation of the access arrangements
ordered in respect of the applicant child. They invoke Articles 1, 2,
3, 5, 8, 9, 10, 11 and 14 (Art. 1, 2, 3, 5, 8, 9, 10, 11, 14) of the
Convention.
1. The Commission has first examined the application under 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 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., p. 37, para. 111).
The Commission shares the Swedish authorities' doubts as to the
credibility of the applicant mother's account of her background in
Iran. Even assuming that she was active in PMOI up to the early 1980's,
an activity which the Iranian authorities appear to have become aware
of at the latest in 1983, there is no indication that she would now
face a real risk of treatment contrary to Article 3 (Art. 3) of the
Convention on that account.
The Commission furthermore finds that the circumstances
surrounding the applicant mother's purported conversion are dubious.
Even assuming that the conversion is genuine, the Commission cannot
find that she would run a real risk of treatment contrary to Article
3 (Art. 3) on this account (cf. No. 21808/93, Ismaili v. Sweden,
Dec. 8.9.93, unpublished).
As regards the risk of ill-treatment on account of the applicant
mother's sex, the abduction of the applicant child or the applicants'
Kurdish origin, the Commission reaches the same conclusion.
Furthermore, as regards the risk of ill-treatment on account of
the interest in the applicants shown by the Iranian Embassy in Sweden,
the Commission finds no indication that the Embassy's inquiries have
served any purpose other than to assist S. in locating his daughter.
The activity shown by the Embassy does not therefore raise any issue
under Article 3 (Art. 3) of the Convention, should the applicants be
returned to Iran.
The Commission also attaches a certain importance to the fact
that the Swedish authorities appear to have gained 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 and that
the authorities are obliged to consider essentially the same factors
as are relevant to the Convention organs' assessment under Article 3
(Art. 3) of the Convention. The decision to expel the applicants appear
to have been made after careful examination of the applicants' case
(cf. Eur. Court H.R., Cruz Varas and Others judgment of 20 March 1991,
Series A no. 201, p. 31, para. 81, and, as regards expulsion to Iran,
No. 20981/93, P. v. Sweden, Dec. 8.4.93, unpublished; the above-
mentioned No. 21808/93).
The Commission also observes that chapter 8 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 he
or she would be in danger of being subjected to capital or corporal
punishment, or torture, in that country.
Finally, bearing in mind all the above-mentioned elements, the
Commission has carried out an overall assessment of the risk of ill-
treatment contrary to Article 3 (Art. 3) of the Convention which the
applicants might be facing on their return to Iran. It concludes,
however, on the evidence before it concerning their individual
background and the general situation in Iran, that it has not been
established that there are substantial grounds for believing that they
would be exposed to a "real risk" of being subjected to treatment
contrary to Article 3 (Art. 3) of the Convention, if returned to that
country.
2. The Commission has further examined the applicant's allegations
of violations of Articles 1, 2, 5, 8, 9, 10, 11 and 14
(Art. 1, 2, 5, 8, 9, 10, 11, 14) of the Convention. However, insofar
as the matters complained of have been substantiated and are within its
competence, the Commission finds that they do not disclose any
appearance of a violation of those provisions.
3. It follows that the application as a whole 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.
Deputy Secretary to the Commission President of the Commission
(M. de SALVIA) (C. A. NØRGAARD)
Full & Egal Universal Law Academy