AS TO THE ADMISSIBILITY OF
Application No. 28239/95
by Jakob SHABO and Others
against Sweden
The European Commission of Human Rights sitting in private on
26 October 1995, the following members being present:
MM. S. TRECHSEL, President
H. DANELIUS
C.L. ROZAKIS
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
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
G.B. REFFI
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
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 11 August 1995 by
Jakob SHABO and Others against Sweden and registered on 18 August 1995
under file No. 28239/95;
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 18 September 1995 and the observations in reply submitted
by the applicants on 18 October 1995;
Having deliberated;
Decides as follows:
THE FACTS
The applicants are Jakob Shabo, a departmental manager born in
1940, his wife Angel More, an office clerk born in 1948, and their
three sons Raimon, Dani and Majed Shabo, all students born in 1974,
1976 and 1981 respectively. They are all Syrian citizens and reside at
present at Västerås, Sweden. Before the Commission they are represented
by Mr. Mats Hogfeldt, a lawyer practising at Västerås.
The facts of the case, as submitted by the parties, may be
summarised as follows.
The wife and the children arrived in Sweden on 28 November 1989
and applied for asylum. The wife stated that her name was Jacklin Al
Keder, that they were stateless Lebanese and that they had travelled,
with the help of smugglers, from Lebanon where they were born and had
lived all their lives. She further alleged that they had left Lebanon
because of the ongoing civil war. On the basis of this information, the
National Immigration Board (Statens invandrarverk), on 30 January 1990,
granted them permanent residence permits on humanitarian grounds.
The husband arrived in Sweden on 31 August 1990, claiming that
his name was Jakob Al Keder and in addition submitting the same
information as his wife. He was granted a permanent residence permit
on 13 January 1991 due to the family connection.
Later, the Police Authority at Västerås was informed that the
applicants had submitted false information in support of their asylum
applications. The spouses were interrogated in October 1991 and in
February, April and September 1992, but denied the allegations.
However, during an interrogation on 4 August 1993, the husband admitted
that they were all Syrian citizens. He also handed over their Syrian
identity documents. At the same time, he applied for asylum claiming
that he risked political persecution in Syria. He would allegedly be
arrested upon return due to suspected involvement in Christian
political groups. Later, the husband claimed that he had attracted the
interest of the Syrian security police in connection with a conflict
at his place of work. Being the chairman of the local trade union, he
had refused to help an employee accused of thefts. This employee was
allegedly an informant to the security police. After having received
threats from the security police, which falsely accused the husband of
belonging to certain anti-government organisations, the family fled to
Lebanon in February 1989. The applicants further claimed that they had
submitted false information to the Swedish immigration authorities due
to their fear of being sent back to Syria if their asylum applications
were rejected.
On 5 October 1993 the District Court (Tingsrätten) of Västerås
convicted the spouses of falsification of documents and use of false
documents. They received suspended sentences and were ordered to pay
fines of 4500 and 2400 SEK respectively.
The applicants submitted medical certificates concerning the
children to the Immigration Board. These certificates, issued on 5
April 1994 by Dr. Christer Heedh, chief physician at the Children's
Psychiatric Centre at Västerås, stated that the children suffered from
mental insufficiencies which would require treatment for a long period
of time.
By decision of 26 October 1994, the Immigration Board, basing
itself on Chapter 2, Section 9 of the Aliens Act (Utlänningslagen,
1989:529), revoked the applicants' residence permits due to the false
information originally submitted by them. It further ordered their
expulsion. With regard to the new information presented by the
applicants, the Board did not question the allegation that the husband
had been involved in a conflict at his place of work. It considered,
however, that, as the incident had not been of a political nature and
had taken place a long time ago, it would not be of any interest to the
Syrian authorities. The Board thus concluded that the applicants were
not entitled to asylum. It further considered that the family's
prolonged stay in Sweden and the children's mental problems had been
caused by the applicants themselves, as they had lived in uncertainty
for several years due to the false information submitted to the
immigration authorities. The Board therefore concluded that the length
of stay and the mental problems did not constitute grounds for letting
the family stay in Sweden.
The applicants appealed to the Aliens Appeals Board (Utlännings-
nämnden). They maintained that the family had lived in Sweden for more
than five years and that the children were integrated into the Swedish
society. The applicants further submitted new medical certificates
concerning Dani and Majed issued on 8 February 1995 by Ms. Moa Thölin,
a nurse at the above Psychiatric Clinic, and attested by Dr. Mildred
Oudin, a chief physician at the Clinic. These persons mainly confirmed
the conclusions made by Dr. Heedh.
On 11 April 1995 the Aliens Appeals Board, agreeing with the
Immigration Board's findings, rejected the appeal.
The applicants later lodged a new application for residence
permits with the Appeals Board. They claimed, inter alia, that, upon
return, the eldest son would have to perform military service and would
probably be punished for draft evasion. Moreover, the children would
not, after their long stay in Sweden, be able to benefit from any
school education in Syria and their development would therefore be
seriously impaired.
The applicants further asserted that the children's mental health
had seriously deteriorated after the Appeals Board's decision. In
support of this allegation, they submitted new medical certificates
issued on 4 May 1995 by Dr. Heedh, according to whom the children
feared a return to a country which they had left six years ago and to
which they no longer had any ties. They were suffering from depressions
and their mental state had clearly deteriorated since April 1994, when
they had last been examined by Dr. Heedh. Dr. Heedh concluded that
there was a clear risk of suicide attempts should the expulsion order
be enforced. The applicants claimed that the parents also had mental
problems. The husband allegedly suffered from a depression. With
respect to the wife, a medical certificate was submitted. Issued on
27 April 1995 by Dr. Peter Afram, assistant chief physician at the
psychiatric ward at the Södertälje hospital, it stated that she
suffered from a post-traumatic stress disorder, that she was depressed
and had suicide thoughts, that she was in need of psychiatric care and
that she had been under Dr. Afram's treatment since January 1995. Dr.
Afram considered that the suicide risk might very well be serious.
On 26 June 1995 the new application was rejected by the Appeals
Board, which stated that it found no reason to change its previous
findings, despite the new medical evidence.
According to a new medical certificate concerning the wife,
issued by Dr. Afram on 21 August 1995, she was in need of compulsory
psychiatric care.
After the Commission had indicated to the respondent Government,
pursuant to Rule 36 of its Rules of Procedure, that it was desirable
not to deport the applicants until the Commission had had an
opportunity to examine the present application, the National
Immigration Board, by decision of 28 October 1995, stayed the
enforcement of the deportation order.
COMPLAINT
The applicants complain, under Article 3 of the Convention, that
an expulsion to Syria would constitute inhuman treatment, at least with
respect to the children. They invoke the risk for the applicant husband
upon return to Syria, the family's long stay in Sweden and their
present mental state.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 11 August 1995 and registered
on 18 August 1995.
On 17 August 1995 the President of the Commission decided,
pursuant to Rule 36 of the Commission's Rules of Procedure, to indicate
to the respondent Government that it was desirable in the interest of
the parties and the proper conduct of the proceedings not to deport the
applicants to Syria until the Commission had had an opportunity to
examine the application. The President further decided, in accordance
with Rule 48 para. 2 (b), to communicate the application to the
respondent Government.
By decision of 14 September 1995, the Commission prolonged its
indication under Rule 36 until the end of the Commission's session
between 16 and 27 October 1995.
The Government's observations were submitted on 18 September 1995
after an extension of the time-limit fixed for that purpose. The
applicant replied on 18 October 1995.
THE LAW
The applicants complain that an expulsion to Syria would
constitute inhuman treatment. They invoke 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 Government submit that the application should be declared
inadmissible for being manifestly ill-founded. The Government argue
that the applicants initially submitted false information about their
identities and country of origin to the Swedish immigration authorities
and later maintained this information for a considerable period of
time. They were thus able to obtain residence permits and considerably
prolong their stay in Sweden. Allegedly, it is very likely that they
would not have been granted residence permits had they submitted the
correct information from the beginning. In this connection, the
Government assert that it was a well-known fact at the time of the
applicants' initial application for asylum that stateless persons from
Lebanon were allowed to stay in Sweden. The Government contend that
Swedish authorities should not have to accept that persons coming to
Sweden under false premises are allowed to remain in the country. The
Government further submit that, against this background, also the
trustworthiness of the new information presented by the applicants must
be called into question. Furthermore, as concerns the interest of the
Syrian security police in the husband, it is hardly likely that he now,
many years after the alleged incident at his place of work, would
suffer any harassment from the Syrian authorities. The Government
further contend that the risk of the children not being able to benefit
from any school education in Syria is of no relevance in the context
of Article 3 (Art. 3) of the Convention.
As regards the applicants', and in particular the children's,
mental state, the Government submit that their situation has been
trying and stressful for a considerable period of time and that this
has caused depressions. However, the situation has, to a very large
extent, been created by the false information submitted to the Swedish
immigration authorities by the applicant spouses. The applicants would
not have been in their present situation had they submitted correct
information from the beginning. Moreover, the applicants' state of
health is allegedly a result of their fear of what will happen to them
in Syria. Having regard to the above statements, the Government contend
that this fear is highly exaggerated. Finally, the Government maintain
that, when enforcing the deportation, the police authority in charge
will take into account the applicants' state of health and find the
most appropriate manner for such an enforcement. Should the applicants'
health be such that deportation cannot take place, the police is
obliged to notify the National Immigration Board which may decide to
stay the enforcement until further notice.
The Government conclude that no substantial grounds have been
shown for believing that the applicants would face a real risk of
treatment contrary to Article 3 (Art. 3) of the Convention if the
expulsion order were to be enforced and that, with respect to their
present state of health, the threshold under Article 3 (Art. 3) would
not be exceeded in case of enforcement.
The applicant submits that the application should be declared
admissible. They claim that there is a risk that the Syrian security
police will subject the applicant husband to treatment contrary to
Article 3 (Art. 3) of the Convention. Furthermore, considering the
present state of health of the applicants, in particular the children,
a deportation to Syria would allegedly be inhuman and a violation of
Article 3 (Art. 3). In this connection, the applicants assert that the
children cannot be blamed for their parents' actions. Moreover, the
children's integration into the Swedish society, their school education
and their linguistic development are of great importance and should be
taken into account. The applicants also submit that their present
situation could have been avoided if the Swedish immigration
authorities had acted more speedily.
The Commission recalls that Contracting States have the right to
control the entry, residence and expulsion of aliens (cf., e.g., Eur.
Court H.R., Vilvarajah and Others 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).
With respect to the risk for the applicant husband to return to
Syria on account of the Syrian security police's alleged interest in
him, the Commission notes that the incident at his place of work took
place prior to the family's escape to Lebanon in February 1989, i.e.
more than six and a half years ago. The Commission further considers
that the applicants have not submitted any evidence in support of this
claim. In this connection, the Commission also notes that the
applicants presented this claim to the Swedish immigration authorities
in August 1993, i.e. more than three and a half years after their
arrival in Sweden, and that they had previously submitted false
information about their identity, country of origin and grounds for
seeking asylum in Sweden. For these reasons, the Commission does not
find it established that there are substantial grounds for believing
that the husband would be exposed to a real risk of being subjected to
treatment contrary to Article 3 (Art. 3) in Syria.
The Commission next has to examine whether, in view of the
applicants' state of health, an enforcement at present of the expulsion
order would in itself involve such a trauma for them that Article 3
(Art. 3) would be violated.
The Commission recalls that ill-treatment must attain a minimum
level of severity if it is to fall within the scope of Article 3
(Art. 3). The assessment of this minimum is relative; it depends on all
the circumstances of the case, such as the nature and context of the
treatment, the manner and method of its execution, its duration, its
physical or mental effects and, in some instances, the sex, age and
state of health of the victim (cf. Eur. Court H.R., Cruz Varas and
Others judgment of 20 March 1991, Series A no. 201, p. 31, paras. 83-
84).
In the present case several medical certificates have been
adduced by the applicants. The Commission has paid particular attention
to the opinions of Dr. Afram of 27 April 1995 and Dr. Heedh of
4 May 1995, according to which the wife and the children are suffering
from depressions and might very well try to commit suicide should the
expulsion order be enforced. Furthermore, according to Dr. Afram's
statement of 21 August 1995, the wife was in need of compulsory
psychiatric care.
In so far as the applicants' mental problems relate to their fear
of what will happen to them in Syria, the Commission recalls its above
finding that no substantial basis has been shown for this fear. It
appears that the main reasons for the applicants' mental problems are
that they have for many years lived in uncertainty as to whether they
would be allowed to remain in Sweden and that they have, during this
period, in various respects integrated into the Swedish society.
Although the prolonged stay in Sweden, to a lesser extent, may be due
to the conduct of the Swedish immigration authorities, it appears that
it is mainly an effect of the applicants' failure to provide the
authorities with correct information.
The Commission notes that the applicants' present state of health
has not led to their being taken into psychiatric care. It is,
moreover, satisfied that, whether or not they at the time are under
psychiatric care, the police authority in charge of the enforcement of
the expulsion will take into account their state of health when
deciding how the expulsion should be carried out. In this connection,
the Commission further notes that, should the applicants be placed in
compulsory psychiatric care, the expulsion could under no circumstances
take place without the permission of the chief physician responsible
for their care (cf. No. 27249/95, Lwanga and Sempungo v. Sweden, Dec.
14.9.95, unpublished).
In the above circumstances, the Commission does not find it
established that the applicants' return to Syria would amount to a
violation of Article 3 (Art. 3) on account of their present state of
health.
It follows that the application is 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.
Deputy Secretary to the Commission President of the Commission
(M. de SALVIA) (S. TRECHSEL)
Full & Egal Universal Law Academy