AS TO THE ADMISSIBILITY OF
Application No. 27794/95
by Farhad SADAGHI
against Sweden
The European Commission of Human Rights sitting in private on
14 October 1996, the following members being present:
Mr. S. TRECHSEL, President
Mrs. G.H. THUNE
Mrs. J. LIDDY
MM. E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
H. DANELIUS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
G.B. REFFI
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
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 26 April 1995 by
Farhad SADAGHI against Sweden and registered on 5 July 1995 under file
No. 27794/95;
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 applicant is an Iranian citizen born in 1960. He resides at
Tabriz, Iran. Before the Commission he is represented by Mr. Ulf
Rahmqvist, a lawyer practising at Uppsala, Sweden.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
After having left Iran in 1978 the applicant lived in Turkey for
six years. On 27 January 1984 he arrived in Sweden. On account of the
political situation in Iran and the risk of him being called up for
military service, the applicant was granted a temporary residence
permit on 12 March 1984. On 12 April 1985 he was granted a permanent
residence permit.
By judgment of the District Court (tingsrätten) of Uppsala of
26 October 1994, the applicant was convicted of several counts of drug
offences committed in 1993 and 1994, including the purchase, use and
sale of cannabis. He was also convicted for having handled stolen
goods. He was sentenced to two years' imprisonment. The District
Court did not, however, find sufficient reasons to order the
applicant's expulsion.
At the District Court's hearing the public prosecutor requested
that a witness, J, be heard in person. As J, however, failed to appear
at the hearing, the prosecutor was allowed to refer to a statement made
by J during the police investigation in regard to one of the drug
charges brought against the applicant. J claimed to have bought drugs
from the applicant. According to the District Court's judgment, the
applicant admitted having assigned a certain quantity of drugs to J.
His conviction for this offence was based on his own admission, J's
statement and the other evidence in the case.
Both the applicant and the public prosecutor appealed to the Svea
Court of Appeal (Svea hovrätt). The prosecutor called for the
applicant's expulsion.
In an opinion submitted to the appellate court on 21 November
1994, the National Immigration Board (Statens invandrarverk) stated
that the applicant was not considered as a refugee under the Aliens Act
(Utlänningslagen, 1989:529). Moreover, although the Iranian
authorities regard drug offences as serious crimes, the applicant would
not, according to information available to the Board, risk to stand
trial in Iran for the offences committed in Sweden. For these reasons,
the Board concluded that there were no impediments to the applicant's
expulsion.
On 28 December 1994 the Court of Appeal upheld the District
Court's verdict but reduced the sentence to one year's imprisonment.
With regard to the expulsion issue, the court recalled that, as the
applicant had lived in Sweden for ten years, Chapter 4, Section 10 of
the Aliens Act provided that he could be expelled only if there were
special reasons. The court noted that the applicant had, in a previous
relationship with a Swedish woman, a seven year old son with whom he
had had only sporadic contacts. Furthermore, the applicant allegedly
had no relatives in Iran and he suffered from a back injury for which
he had been operated on in 1993. He had, however, been convicted six
times, on five occasions for drug offences, and had been sentenced to
prison on three occasions in 1990-1991. Moreover, he was unemployed
and had abused drugs for many years. Thus, due to the applicant's
continued criminal activities and disorderly life, the court found that
there were special reasons to order his expulsion.
The applicant appealed to the Supreme Court (Högsta domstolen).
He complained, inter alia, that he had not been able to put questions
to J, as J had not appeared at the hearings in the District Court and
the Court of Appeal. He stated that the purpose of the public
prosecutor's request that J be heard in person was to prove that the
applicant had sold about one gram of amphetamine to J. He admitted,
however, that he had lent J about one gram of amphetamine on the
relevant occasion.
On 24 February 1995 the Supreme Court refused the applicant leave
to appeal.
On 20 April 1995 the Government rejected the applicant's request
for the expulsion order to be revoked. It also rejected the applicant's
petition for mercy.
On 6 May 1995 the applicant was released from prison and expelled
to Iran.
The applicant's representative was in contact with the applicant
on 31 August 1995 and 22 August 1996. The applicant stated, inter
alia, that, upon arrival in Teheran, he had been detained in a police
cell for ten days and had been lashed by the police. Following his
release from detention, he had stayed at Tabriz.
COMPLAINTS
1. The applicant complains that his expulsion violates Article 3 of
the Convention. He claims that he risks the death penalty in Iran for
his drug offences and that he may also be punished for not having
fulfilled his obligations towards the Iranian armed forces. The
threats to his person are serious due to his western lifestyle,
religious conviction and family background. He also refers to his back
injury, his Swedish son, his psychological problems due to the murder
of his parents in 1978 and the fact that he has spent half his life
outside Iran.
2. The applicant further alleges that his expulsion from Sweden
prohibits contacts between him and his son and thus fails to respect
his family life. He invokes Article 8 of the Convention.
3. The applicant also maintains that his rights under Article 6
para. 3 (d) of the Convention have been violated in that J was not
heard by the District Court or the Court of Appeal.
Furthermore, the applicant challenges the independence and
impartiality of the Government deciding in his case. In this respect,
he invokes Article 6 para. 1 of the Convention.
4. The applicant also claims that he was expelled without having had
his case reviewed in accordance with Article 1 of Protocol No. 7 to the
Convention, as the District Court in reality did not examine the
question of expulsion, the Supreme Court refused him leave to appeal
and the Government's examination did not constitute a full review of
the case.
5. Finally, under Article 7 of the Convention, the applicant
complains that he was given a heavier penalty than applicable, as no
special reasons called for his expulsion.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 26 April 1995. The same day,
the applicant requested the Commission to secure a stay of his
deportation from Sweden.
On 4 May 1995 the Acting President of the Commission decided not
to indicate to the Government of Sweden, pursuant to Rule 36 of the
Commission's Rules of Procedure, the measure suggested by the
applicant.
Following further correspondence with the applicant, the
application was registered on 5 July 1995.
THE LAW
1. The applicant complains that his expulsion violated 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 applicant contends that there is a great risk that he will
have to stand trial in Iran for the drug offences committed in Sweden
which in Iran carry the death penalty. He may also be imprisoned or
receive corporal punishment for his failure to maintain contacts with
the Iranian armed forces since his flight from the country in 1978.
Furthermore, his western lifestyle, religious conviction and family
background allegedly make him unwanted in Iran. The applicant states
that his family were victims of political persecution. His father, a
mechanic serving in the Iranian air force during the Shah regime and
educated in the United States, and his mother, a kurd who received her
medical education in France, both died in 1978 after the applicant's
escape. His father was executed by the present regime. The death of
his parents has given the applicant psychological problems; he finds
it unbearable to return to a country where his family was persecuted
and his father killed. In this connection, the applicant further
states that he has spent half his life abroad and has no relatives in
Iran or other connections to the country. He also refers to his
chronic back injury for which he cannot presumably receive adequate
treatment in Iran and to his Swedish son to whom he has a right of
access.
The Commission recalls that Contracting States have the right to
control the entry, residence and expulsion of aliens (cf., e.g., Eur.
Court HR, Vilvarajah and Others v. the United Kingdom judgment of
30 October 1991, Series A no. 215, p. 34, para. 102). However, an
expulsion decision may give rise to an issue under Article 3 (Art. 3)
of the Convention, and hence engage the responsibility of the State,
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 or she is to be expelled (ibid., p. 34, para. 103). A mere
possibility of ill-treatment is not in itself sufficient (ibid., p. 37,
para. 111).
As regards the applicant's criminal record, the Commission
recalls its decision of 14 October 1991 (No. 16381/90, R. v. Denmark,
not published) in which it found that Iranian courts do not accept
judgments pronounced by courts which do not operate in accordance with
Islamic law. In a further decision of 7 April 1993 (No. 18807/91,
L. v. France, D.R. 74 p. 162), the Commission noted that the applicant
in that case had not contradicted the information supplied by the
French Government, including a report drawn up jointly by a number of
foreign embassies in Teheran, to the effect that persons convicted of
drug offences in Western countries had not been prosecuted on their
return to Iran.
Notwithstanding the ongoing anti-drug campaign in Iran, including
the passing of death penalties for certain drug offences and executions
of many offenders, the Commission cannot find any indication of changed
practices in regard to persons lawfully convicted by a court outside
Iran. Nor does it find that the applicant in the present case has
established that he runs a real risk of being punished or tried a
second time for the crimes committed in Sweden.
With respect to the other risks allegedly facing the applicant
in Iran, the Commission first notes that the applicant has offered no
evidence in support of his claims, nor has he supplied any details on
his Western lifestyle or religious conviction. Moreover, the
Commission does not find the possible imprisonment for failure to
maintain contacts with the Iranian armed forces to be a penalty so
severe as to raise an issue under Article 3 (Art. 3) of the Convention
(cf., e.g., No. 12364/86, Kilic v. Switzerland, Dec. 17.10.86, D.R. 50
p. 280). With respect to the applicant's family background, the
Commission considers that the applicant has not established that he
would be of any particular interest to the Iranian authorities on
account of his parents' activities before 1978. Finally, the
Commission does not find, in the circumstances of the case, that the
applicant's expulsion amounts to treatment contrary to Article 3
(Art. 3) due to his psychological problems, the time he has spent
abroad and the resultant lack of connections to Iran, his back injury
or his difficulties in maintaining contacts with his Swedish son.
In view of the above, the Commission considers that it has not
been established that there were substantial grounds for believing that
the applicant faces a real risk of being subjected to treatment
contrary to Article 3 (Art. 3) of the Convention in Iran.
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 further complains that his expulsion fails to
respect his family life. He invokes Article 8 (Art. 8) of the
Convention, which provides the following:
"1. Everyone has the right to respect for his private and
family life, his home and his correspondence.
2. There shall be no interference by a public authority
with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic
society in the interests of national security, public
safety or the economic well-being of the country, for the
prevention of disorder or crime, for the protection of
health and morals, or for the protection of the rights and
freedoms of others."
The applicant maintains that the expulsion will prohibit future
contacts between him and his son. Claiming that his criminal
activities have been of a relatively limited nature, the applicant
contends that the expulsion constituted a disproportionate interference
with his family life and was not necessary in a democratic society.
He states that he had good contacts with his son until he was detained
in the summer of 1994.
The Commission recalls that the expulsion of a person from a
country in which close members of his family live may amount to an
unjustified interference with his right to respect for his family life
as guaranteed by Article 8 (Art. 8) of the Convention (cf. Eur. Court
HR, Moustaquim v. Belgium judgment of 18 February 1991, Series A no.
193, pp. 19-20, paras. 43-46).
The Commission considers that the applicant's expulsion
interfered with his right to respect for his family life under Article
8 para. 1 (Art. 8-1). It is therefore necessary to ascertain whether
the expulsion satisfied the conditions of Article 8 para. 2 (Art. 8-2),
that is to say whether it was "in accordance with the law", pursued one
or more of the legitimate aims set out in that paragraph, and was
"necessary in a democratic society" for the achievement of that or
those aims (cf., e.g., Eur. Court HR, Boughanemi v. France judgment of
24 April 1996, para. 36, to be published in the Reports of Judgments
and Decisions for 1996).
It has not been contested that the expulsion order was issued "in
accordance with the law". The Commission considers that the
enforcement of the order pursued a legitimate aim under Article 8 para.
2 (Art. 8-2), namely the interest of public safety and the prevention
of disorder and crime.
The necessity criterion implies the existence of a pressing
social need and, in particular, requires that the measure must be
proportionate to the legitimate aims pursued. It has to be determined
whether the expulsion in issue struck a fair balance between the
relevant interests, in the present case the applicant's right to
respect for his family life, on the one hand, and the interest of
public safety and the prevention of disorder and crime, on the other.
Regard should further be had to the margin of appreciation afforded to
the Contracting States (ibid., paras. 41-42).
The Commission recalls the finding of the Court of Appeal on
28 December 1994 that the applicant had had only sporadic contacts with
his son. Moreover, the Commission attaches particular importance to
the seriousness of the offence on account of which the applicant's
expulsion was ordered. It further notes that the applicant previously
had been convicted six times, on five occasions for drug offences, and
that he had been sentenced to prison on three occasions in 1990-1991.
In view of the above and taking into account the margin of
appreciation left to the Contracting States, the Commission concludes
that there is nothing to indicate that the Swedish authorities have
failed to fulfil their obligation to strike a fair balance between the
relevant interests. The applicant's expulsion cannot therefore be
regarded as disproportionate to the legitimate aims pursued.
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.
3. The applicant also claims that his rights under Article 6 paras.
1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention have been violated.
In so far as relevant, Article 6 (Art. 6) reads as follows:
"1. In the determination of his civil rights and
obligations or of any criminal charge against him, everyone
is entitled to a fair ... hearing ... by an independent and
impartial tribunal ... .
...
3. Everyone charged with a criminal offence has the
following minimum rights:
...
d. to examine or have examined witnesses against him and
to obtain the attendance and examination of witnesses on
his behalf under the same conditions as witnesses against
him;
..."
In regard to the criminal proceedings against him, the applicant
claims that Article 6 para. 3 (d)(Art. 6-3-d) was violated in that J,
a person interviewed by the police, was not heard by the District Court
or the Court of Appeal. As a consequence, the applicant was not given
an opportunity to put questions to J and could thus not examine the
information given by him to the police.
The Commission recalls that the taking of evidence is governed
by the rules of domestic law. The admissibility and assessment of
evidence are in principle matters for the national courts. The
Commission's task under the Convention is to ascertain whether the
proceedings, as a whole, were fair (cf. Eur. Court HR, Bricmont v.
Belgium judgment of 7 July 1989, Series A no. 158, p. 31, para. 89, and
Saïdi v. France judgment of 20 September 1993, Series A no. 261-C,
p. 56, para. 43).
By referring to the witness J, the public prosecutor sought to
prove that the applicant had sold about one gram of amphetamine to J.
The applicant admitted having lent the quantity in question to J. His
conviction for this offence was based not only on his own and J's
statements but also on other evidence in the case. In these
circumstances, the Commission, even assuming that the applicant
requested J to be heard in person by the District Court and the Court
of Appeal, does not find that the public prosecutor's reference to the
statement made by J during the police investigation violated the
applicant's rights under Article 6 (Art. 6) of the Convention.
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.
With respect to the Government's examination of the applicant's
requests to have the expulsion order revoked or to be granted mercy,
the applicant contends that it did not meet the requirements as to
independence and impartiality. He states that the Government's
decisions were prepared by a district prosecutor who, at the time, was
on leave from her post at the prosecutor's office in Stockholm. Due
to her possible future career as a prosecutor, she was allegedly not
independent of the prosecutor taking part in the criminal proceedings.
The Commission recalls that the proceedings in which it is merely
decided whether an individual should be expelled from a country (cf.,
e.g., No. 12364/86, referred to above) or the proceedings concerning
the execution of a sentence imposed by a competent court (cf., e.g.,
No. 16266/90, Aldrian v. Austria, Dec. 7.5.90, D.R. 65 p. 337) are not
covered by Article 6 para. 1 (Art. 6-1) of the Convention. They
concern neither the determination of a criminal charge nor of civil
rights and obligations within the meaning of this provision.
The Commission, noting that the criminal charges brought against
the applicant and the question of expulsion were determined by the
competent courts whose independence and impartiality have not been
called into question, finds that the Government's examination did not
concern questions covered by Article 6 para. 1 (Art. 6-1).
It follows that this part of the application is incompatible
ratione materiae with the provisions of the Convention within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
4. The applicant complains that he was expelled without having had
his case reviewed. He invokes Article 1 of Protocol No. 7 (P7-1) to
the Convention, which in relevant parts provides the following:
"1. An alien lawfully resident in the territory of a State
shall not be expelled therefrom except in pursuance of a
decision reached in accordance with law and shall be
allowed:
...
b. to have his case reviewed ..."
The applicant claims that the question of expulsion in reality
was not examined by the District Court, as the prosecutor called for
the applicant's expulsion only in his closing argument and the court
did not have any opinion from the Immigration Board at its disposal
when it decided to reject the prosecutor's request. Following the
Court of Appeal's order that the applicant be expelled, the question
was not addressed by the Supreme Court, as it refused leave to appeal.
Subsequently, the Government did not review all aspects of the issue.
The Commission finds, however, that the question of the
applicant's expulsion was examined by the District Court, the Court of
Appeal and, in deciding not to grant leave to appeal, the Supreme
Court. Furthermore, the Government examined whether there were reasons
to revoke the expulsion order. Accordingly, the Commission considers
that the applicant's expulsion was reviewed in accordance with Article
1 of Protocol No. 7 (P7-1).
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.
5. The applicant finally complains that he was given a heavier
penalty than applicable in violation of Article 7 (Art. 7) of the
Convention, which, in so far as relevant, reads as follows:
"1. No one shall be held guilty of any criminal offence on
account of any act or omission which did not constitute a
criminal offence under national or international law at the
time when it was committed. Nor shall a heavier penalty be
imposed than the one that was applicable at the time the
criminal offence was committed."
The applicant alleges that the decision to expel him was not in
accordance with national law, as no special reasons called for his
expulsion.
Assuming that, in the present case, the applicant's expulsion
falls to be considered under Article 7 (Art. 7) of the Convention, the
Commission notes the Court of Appeal's judgment of 28 December 1994,
in which the court recalled that, under the applicable provisions of
the Aliens Act, the applicant could be expelled only if there were
special reasons. Having examined the case, the appellate court found
that there were special reasons to order his expulsion. Considering
that it was for the national courts to assess whether the offences of
which the applicant was convicted and the other circumstances of the
case constituted sufficient reasons for the applicant's expulsion, the
Commission finds that the expulsion order did not violate Article 7
(Art. 7) of the Convention.
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, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
H.C. KRÜGER S. TRECHSEL
Secretary President
to the Commission of the Commission
Full & Egal Universal Law Academy