AS TO THE ADMISSIBILITY OF
Application No. 23752/94
by Mohammad ROUDI
against Sweden
The European Commission of Human Rights sitting in private
on 14 April 1994, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
A. WEITZEL
F. ERMACORA
A.S. GÖZÜBÜYÜK
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
D. SVÁBY
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 10 January
1994 by Mohammad ROUDI against Sweden and registered on 23 March
1994 under file No. 23752/94;
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 applicant is an Iranian citizen born in 1945. He is
currently resident in Stockholm and is represented by Mr. Leif
Rydberg, a lawyer in Bergshamra.
The facts of the case, as submitted by the applicant, may
be summarised as follows.
The applicant entered Sweden on 26 November 1989, using a
false passport. In his request for asylum, alternatively a
residence permit, he stated having left Iran with his own
passport, which he had obtained from Turkmenians who had bribed
officials. The smuggler in charge of the applicant's escape from
Iran was said to have handed in the applicant's passport to the
airport authorities in Teheran for control before his departure
and the applicant himself had picked it up. The applicant further
stated that he had not been politically active since 1979, when
he had participated in clashes between Turkmenians and members
of the Revolutionary Guard. Following the revolution all his
property had allegedly been confiscated and he had been
imprisoned for his activities in support of the Turkmenians.
During six months, every third day, he had been brought before
a Revolutionary Committee and had been questioned, assaulted and
tortured, particularly by simulated executions. In 1983 he had
been informed that he had been sentenced to fifteen years'
imprisonment. After three years in prison he had been granted his
first leave. During his last leave on 23 November 1989 he had
escaped from Iran. None of his relatives had ever been arrested
or charged.
On 18 October 1990 the National Immigration Board (statens
invandrarverk) rejected the applicant's request, having regard
to the fact that, while imprisoned, the applicant had been
granted a passport and had thus been able to leave Iran legally.
The Board considered that, in view of the extremely careful
control of departing passengers at the Teheran airport, the
applicant's allegation that he had been sentenced to a lengthy
term of imprisonment lacked credibility. Neither was his
assertion that he had been granted a passport while in prison
considered credible.
In his appeal to the Aliens Appeals Board
(utlänningsnämnden) of December 1990 the applicant submitted that
the passport with which he had left Iran had not necessarily been
a valid one established in his name. He had never verified that
it carried his name. Even if the passport had been valid, it is
possible to bribe airport officials, which his friends might have
done in his case. Moreover, according to a letter from his
mother, his brother had allegedly been imprisoned in April 1990
and would remain in prison until the applicant returns to Iran.
His cousin had allegedly been executed in June 1990. The
applicant's Turkmenian friends had allegedly received visits by
an Islamic Committee searching for the applicant. In addition,
Government officials had carried out a search in his mother's
home and found pictures of the Shah belonging to the applicant.
The applicant's wife had been arrested in December 1990 and
detained for a short period of time, but had been released after
having transferred the rights to a friend's property as a
"security" to the authorities.
The applicant later supplemented his appeal by referring to
a copy of a document dated 27 August 1991 which was said to be
a summons addressed to his wife ordering her to attend an
interrogation. Having appeared for interrogation, the wife had
allegedly again been arrested and detained for a short period of
time.
On 21 October 1992 the applicant's appeal to the Aliens
Appeals Board was rejected. The Aliens Appeals Board considered
that the applicant's account of his alleged imprisonment, the
alleged arrests of his wife and his departure from Iran was not
credible, in particular his assertion that he had never verified
the accuracy of his passport. The Board noted in this respect
that he had stated to the Swedish immigration police that he had
picked up the passport himself from the authorities at the
Teheran airport.
The Aliens Appeals Board also had regard to interrogations
with the applicant's wife and daughter conducted by the Swedish
Embassy in Teheran. The wife had stated that the applicant had
been granted leave once every four months and had been serving
his sentence in the prison of Gombad. The daughter had first
stated that the applicant had never been granted leave, but later
changed her story. She had further stated that the applicant had
been imprisoned in Gombad, Shiraz and Teheran.
The Aliens Appeals Board concluded that the various accounts of
the alleged arrests of the applicant's wife were inconsistent.
As the applicant had been staying in Sweden for more than
18 months, a special rule applied according to which he could
have been granted a residence permit on account of particular
ties to Sweden. However, considering that the applicant had a
wife and five children in Iran, the Aliens Appeals Board
considered his ties to that country to outweigh his ties to
Sweden.
The applicant divorced while in Sweden, allegedly in an
attempt to relieve his wife from further arrests.
In June 1993 the applicant lodged a further request for
asylum, and an alternative request for a residence permit. He
submitted that as of December 1990 he had been a member of the
"Iran Paad Followers of the Iranian Monarchy", a movement of
Iranians in exile attempting to re-establish the monarchy in
Iran. In order to qualify for membership the applicant had had
to prove that he had been a dissident during the present Iranian
regime.
In his request of June 1993 the applicant further referred
to a forensic report of 13 April 1993 by the Centre for Torture
Victims, showing that he has scars on his face, neck, left arm
and hand, torso and legs. The report concludes that the scars may
well have occurred as a result of beatings with a dull instrument
and that nothing contradicting the applicant's account of his
torture experiences has been found. The applicant further
referred to a psychiatric report of 27 April 1993 by the Centre
for Torture Victims. This report finds nothing contradicting the
applicant's account of his background.
In his request of June 1993 the applicant finally stated
that he had divorced his wife and that he was cohabiting with a
Swedish woman. Thus, his ties to Sweden could be considered
stronger than those to Iran.
The applicant's request was rejected on 17 June 1993. The
Board considered that some of the circumstances invoked had
already been examined. The new circumstances invoked were not
considered such as to make the applicant eligible for asylum, nor
were there humanitarian reasons warranting the granting of a
residence permit. As to the applicant's ties to Sweden, the Board
referred to the preparatory works to the Aliens Act, according
to which a residence permit shall be refused if such ties are
invoked at the enforcement stage.
On 24 June 1993 the National Immigration Board rejected the
applicant's further request for a residence permit, considering
that no new circumstances had been shown.
COMPLAINTS
The applicant complains about his impending expulsion to
Iran, fearing further imprisonment, torture and capital
punishment if returned to that country. He refers to the alleged
part of his prison sentence which is yet to be served and fears
a harsh punishment in view of his allegedly unlawful escape
during his leave from prison. He invokes no particular provision
of the Convention or its Protocols.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 10 January 1994.
On 21 January 1994 the Commission examined the application
and decided not to apply Rule 36 of the Rules of Procedure.
The application was registered on 23 March 1994
THE LAW
The applicant complains about his impending expulsion to
Iran, fearing further imprisonment, torture and capital
punishment if returned to that country.
The Commission has 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., p. 34, para. 103). A mere possibility of
ill-treatment is not in itself sufficient to give rise to a
breach of Article 3 (Art. 3) (ibid., p. 37, para. 111).
The Commission shares the Swedish authorities' doubts in
regard to the applicant's story and finds that his account to the
Swedish authorities of his background in Iran contains
inconsistencies.
The Commission concludes, on the evidence before it
concerning both the applicant's individual background and the
general situation in Iran, that it has not been established that
there are substantial grounds for believing that he would be
exposed to a real risk of being subjected to treatment contrary
to Article 3 (Art. 3) of the Convention, if expelled to Iran.
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, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the
Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy