AS TO THE ADMISSIBILITY OF
Application No. 15795/89
by R.M.
against Sweden
The European Commission of Human Rights sitting in private
on 16 March 1990, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
J. CAMPINOS
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
L. LOUCAIDES
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 11 November 1989
by R.M. against Sweden and registered on 21 November 1989
under file No. 15795/89;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant is a Syrian citizen born in 1948. Before the
Commission he is represented by Mr. Per Stadig, a lawyer practising in
Stockholm.
In December 1977 the applicant was expelled from Sweden to
Syria. Upon his arrival in Syria the applicant was imprisoned and in
prison he had to face torture. Eventually the applicant was
transferred to Syrian military service, from which he fled. He came
to Sweden and, on 24 August 1978, was granted a permit to stay in
Sweden.
After having been convicted of a criminal offence by the Solna
District Court (tingsrätt) on 23 May 1980 the applicant was expelled
from Sweden. The applicant went to France and from there to Lebanon.
The applicant came back to Sweden in November 1987. The
authorities failed to deport him to Lebanon at the time. The question
of the enforcement of the deportation of the applicant was transmitted
to the National Immigration Board (statens invandrarverk) on
3 November 1987. On 20 January 1988 the National Immigration Board
decided that the applicant should be deported to Syria. The applicant
appealed to the Government which in a decision of 18 May 1989 rejected
the appeal.
After the Government's decision the applicant has on two
occasions lodged a fresh request to the National Immigration Board for
a residence permit. The National Board has refused to grant such a
request and to stop the deportation. These decisions are not subject
to appeal.
The most recent decision in the case by the National
Immigration Board is dated 2 November 1989. The decision indicates
that the applicant is now in hiding. It states the following:
"Makdessi is expelled from the Realm with a prohibition to
return here following a judgment by the Solna District Court
of 23 May 1980 which has acquired legal force.
The Government have in their decision of 18 May 1989
confirmed the National Immigration Board's decision of
20 January 1988 that there are no obstacles under
Section 77 or 80 of the old Aliens Act (utlänningslagen)
against enforcement of the expulsion of Makdessi to his
home country Syria.
On 30 August 1989 Makdessi submitted a fresh request for a
residence permit to the National Immigration Board on the
ground that he runs an obvious risk of being subjected to
torture if he is forced to return to Syria. The National
Immigration Board found that Makdessi's application was
based on circumstances which had already been examined in
the case about the enforcement of his expulsion and therefore
rejected his request in a decision of 5 September 1989.
On 11 October 1989 Makdessi submitted again an application to
the National Immigration Board that he be granted a
residence permit and requested a stay of the enforcement.
Makdessi has again invoked as grounds for his application that
he runs a risk of being subjected to torture in his home
country if he is forced to return there. In support of his
application he invokes that also Amnesty International has
made this assessment.
On 13 October 1989 the National Immigration Board decided to
stay, until further notice, the enforcement of the expulsion.
Assessment:
The National Immigration Board considers that both Makdessi's
application and the letter invoked by him from Amnesty
International are based on circumstances which have previously
been examined by the Government in the case about enforcement
of his expulsion. Makdessi's application must therefore be
rejected under Chapter 2 Section 5 paragraph 3 of the 1989
Aliens Act."
The matter of enforcement of the deportation order is now
pending before the police authority of Katrineholm and the applicant's
expulsion is imminent. The applicant has been in contact with Amnesty
International which has investigated his case. The following is
quoted from a letter from the Swedish section of Amnesty International
dated 8 June 1989, addressed to the International Secretariat of
Amnesty International, and which summarises what Mr. Makdessi has told
the refugee co-ordinator of the Swedish section:
"R.M. came for the first time to Sweden in 1975
but his asylum application was rejected and he was sent back
to France from where he had come on his way to Sweden. In
1977 he made another effort to reach Sweden and that time
the Swedish authorities said he didn't have strong enough
reasons for asylum and once more he was expelled, but this
time to Syria. Makdessi had deserted from the Syrian
army and as a consequence he was taken by the Syrian
police as soon as he arrived to Damascus under Swedish
police escort. After being kept at the airport for a few
hours he was taken to Marje police station and from there
the Security Police took over. He was transferred to a very
high building in Damascus (he does not know the name of it)
and there he was heavily beaten and tortured. However he
stayed there only for some days and after that the military
police in Damascus presented him to a military council that
decided that he should do his military service in Aleppo.
The camp he was taken to is called Haneno. He managed to
desert after two months and came back to Sweden through
Lebanon. The arrest and torture took place in December 1977.
Apart from being a deserter and in danger if sent back to
Syria, he is in big danger even in Lebanon and this is
due to the following facts:
In 1975 he became member of the Shamounist party
'National Liberation' and his main occupation was to
hide weaponry in various parts of the area e.g. churches.
His leader was called George Adouan and the activities were
concentrated in the eastern part of Beirut named Tajouni.
He has also been active under Hobeika, but that only
until he discovered the co-operation between Hobeika and
Syria. Hobeika has, according to Makdessi repeatedly, sent
Syrian citizens to Syria, where they are arrested and
tortured.
The party is called Lebanese Resistance Force and his
leader, from whom he received direct orders was called
Marcel Asouf. He is now living in the USA. His
activities with the Lebanese Resistance Force cover the
period 1981-1985.
All this makes Makdessi very much afraid to return to
Lebanon, where he will probably be shot down by Hobeika
people.
There exists even another element that makes an eventual
deportation to Syria dangerous for Makdessi: his uncle,
Abdul Majid Magdoni who has been a minister in Syria
is imprisoned since 1979. He had been a member of the
Naserist Party.
The last time he entered Sweden it was on 27 September 1987
and since then all the authorities have rejected his asylum
application. Now he is going to be sent to Syria within the
coming weeks. We believe that this is due mostly to the
fact that he spent 16 months in jail for narcotic crime in
1980-1981. As far as I understand he was convicted for a
similar crime in Holland in 1976.
In Syria he has never been brought in front of a court and
there exists no court decision against him. He does not
have in his hands any documents relevant to his
descriptions.
As you can understand it is impossible for us to control this
story and if it is true then it seems that it is a case that
AI could support. We would be very grateful to have your
comments and advice."
A letter dated 6 October 1989 from the International
Secretariat of Amnesty International reads as follows:
"Further to this case Amnesty International wishes to
reiterate its concern about the risks to Makdessi's welfare
and safety should he be returned to Lebanon. Although
Amnesty International could make no specific assessment as
to the level or importance of his past political activities,
the Organisation believes that given his past political
background there are reasonable grounds to fear that upon
arrest he would be subjected to torture or ill-treatment by
Syrian forces or Syrian allies in Lebanon. In Amnesty
International's experience victims of torture have included
not only the well-known activists within opposition groups
but also other members or sympathisers who are neither
highly active nor prominent within their groups. Given the
series of human rights violations by Syrian forces as
documented over the years by Amnesty International the
Organisation fears for the safety of R.M.. The
Organisation urges the Swedish authorities to take into
account the provisions of Article 3 of the UN Convention
against Torture (ratified by the Swedish Government in 1986)
which states:
'1. No State Party shall expel, return ('refouler') or
extradite a person to another State where there are
substantial grounds for believing that he would be in danger
of being subjected to torture.
2. For the purpose of determining whether there are
such grounds, the competent authorities shall take into
account all relevant considerations including, where
applicable, the existence in the State concerned of a
consistent pattern of gross, flagrant or mass violations of
human rights.'"
The applicant submits that the immediate background to his
leaving Beirut was an incident in a hospital in Beirut where he was
staying for about one month on account of an osteitis. After a
quarrel with another patient he was brought to the military police
headquarters where he was ill-treated. He was kicked in the head and
on his body and was hit with the butt end of a rifle and lightly with a
whip.
After this incident he decided to leave Beirut. He left by
boat on 5 September 1987 to Larnaca. He flew from Larnaca to Vienna,
then to Munich, then to Milan. He stayed in Italy three weeks and on
27 September he flew to Stockholm via Vienna.
COMPLAINTS
1. The applicant alleges that the decision to deport him to Syria
violates Article 3 of the Convention.
2. The applicant also alleges a violation of Article 13 of the
Convention on the ground that no appeal was available with regard to
the decision of the National Immigration Board of 2 November 1989.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 11 November 1989 and
registered on 21 November 1989.
On 21 November 1989 the President of the Commission, following
the applicant's request that the Commission indicate to the Government
that they should not deport the applicant until the Commission had
examined the application, decided not to give any indication to the
Government under Rule 36 of the Commission's Rules of Procedure.
On 15 December 1989 the Commission examined the application and
decided to adjourn its examination pending the applicant's submission
of his full application, and not to apply Rule 36 in the meantime.
THE LAW
1. The applicant alleges a violation of Article 3 (Art. 3) of the
Convention on the ground that his expulsion to Syria would involve a
violation of Article 3 (Art. 3) of the Convention, which reads:
"No one shall be subjected to torture or to inhuman or
degrading treatment or punishment."
In the Soering case, the European Court of Human Rights stated
as follows (Eur. Court H.R., Soering judgment of 7 July 1989, Series A
no. 161, para. 91):
"In sum, the decision by a Contracting State to extradite a fugitive
may give rise to an issue under Article 3 (Art. 3), and hence engage
the responsibility of that State under the Convention, where
substantial grounds have been shown for believing that the person
concerned, if extradited, faces a real risk of being subjected to
torture or to inhuman or degrading treatment or punishment in the
requesting country. The establishment of such responsibility
inevitably involves an assessment of conditions in the requesting
country against the standards of Article 3 (Art. 3) of the
Convention."
In the Commission's view, this test also applies to cases of
expulsion. Consequently, it must be examined whether there are
substantial grounds to believe that the applicant faces a real risk of
being subjected to treatment contrary to Article 3 (Art. 3) of the
Convention, if deported to Syria.
The Commission considers that the general situation in Syria
is not such that any expulsion to Syria would be a violation of
Article 3 (Art. 3) of the Convention. In order to raise an issue under
Article 3 (Art. 3) there must be some substantiation that there exist
a specific risk of treatment contrary to Article 3 (Art. 3) for the
applicant in the particular case. In the present case, the applicant
alleges that he was tortured in Syria in 1977 and has deserted from
the Syrian army as a result of which he is liable to a long-term
imprisonment and is at a real risk of torture if he is returned to
Syria.
The Commission has examined the applicant's submissions and
the documents in support of his application. It notes that a
considerable time has elapsed since the alleged torture in 1977. It
finds that the information available to it is not sufficient to
conclude that there exists a substantial risk that the applicant will
be subjected to treatment contrary to Article 3 (Art. 3) of the
Convention if he were returned to Syria.
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 applicant also alleges that he had no effective remedy for
the alleged violation, contrary to Article 13 (Art. 13) of the Convention.
Article 13 (Art. 13) requires a remedy in domestic law only in
respect of a claim of a violation which can be regarded as "arguable"
(cf. Eur. Court H.R., Boyle and Rice judgment of 27 April 1988,
Series A no. 131, p. 23, para. 52). Having found above that the claim
of a violation of Article 3 (Art. 3) of the Convention is manifestly
ill-founded, the Commission similarly considers that the applicant's
claim of a violation cannot be regarded as "arguable" for the purpose
of Article 13 (Art. 13) of the Convention. Consequently, Article 13
(Art. 13) of the Convention does not entitle the applicant to a remedy
in domestic law.
It follows that this part of the application is also
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE
Deputy Secretary to the Commission President of the Commission
(J. RAYMOND) (C.A. NØRGAARD)
Full & Egal Universal Law Academy