AS TO THE ADMISSIBILITY OF
Application No. 23406/94
by Bahram ZARRINNEGAR
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 4 February
1994 by Bahram ZARRINNEGAR against Sweden and registered on 4
February 1994 under file No. 23406/94;
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 28 February 1994 and the observations
in reply submitted by the applicant on 18 March 1994;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the parties, may be
summarised as follows.
The applicant is an Iranian citizen, born in 1966, and
currently residing in Sweden. Before the Commission he is
represented by Mr. Per Stadig, a lawyer practising in Stockholm.
A. The particular circumstances of the case
The applicant grew up in the family home in Teheran where
his mother runs a pharmacy. He has four brothers and a sister.
His brother Naser came to Sweden in 1986 and applied for asylum
on the ground that he had been drafted for military service in
the war between Iran and Iraq. He was granted a permanent
residence permit and became a Swedish citizen on 22 September
1993.
Parviz Zarrinnegar, also one of the applicant's brothers,
came to Sweden in July 1990 and applied for asylum. However, his
application was rejected and he was expelled to Iran on 3 April
1993. The applicant submits that Parviz disappeared upon arrival
in Iran.
The applicant's brother Khosro arrived in Sweden in January
1992 and applied for asylum. The Aliens Appeals Board
(Utlänningsnämnden) decided on 8 March 1993 not to grant him
permission to stay in Sweden. The decision to expel him has not
yet been enforced.
The applicant's fourth brother, Nader, allegedly disappeared
in Iran in 1988/89. The applicant submits that Nader was
imprisoned for a year and that the family was informed in March
1989 of his whereabouts, namely when he was found in a hospital.
Nader died there just before 21 March 1989.
The applicant's mother and sister are living in Iran.
The applicant's family was allegedly often harassed in Iran
by members of the revolutionary guard as the family was
considered to be against the present regime there. The applicant
submits that he was arrested and ill-treated on several
occasions, the first time in 1985 when he was arrested in school
and detained for a week. The second time was in September 1990.
He was released after 20 minutes following which the applicant
was allegedly taken to a mountain site and beaten up for some
hours before being left there.
The applicant's third arrest was allegedly in
October/November 1990 when he was sent to prison after having
tried to help his sister who was being harassed by members of the
revolutionary guard. The applicant remained in prison for
approximately three months and submits that he was subjected to
daily questioning and tortured on several occasions, inter alia,
by being hung upside down and being forced to walk on broken
glass. In February 1991 he was released from prison and sent to
a military camp in an area inhabited by Kurds. The applicant
considered this to be some sort of military service, but he
managed to escape and return to Teheran in June 1991. He remained
there until he left for Sweden in July 1991.
Prior to his third arrest the applicant had, on 22 October
1990, applied for a three-month visa at the Swedish Embassy in
Teheran in order to visit his brother Naser. At that time he held
an Iranian passport, issued to him on 21 February 1990 and valid
until 21 February 1993. The applicant submits, however, that it
was a forged passport he had bought and which he subsequently
sold to the forger when he learned that his request for a visa
had been turned down by the Swedish authorities.
Accordingly, the applicant left Iran without a passport or
other travel documents via Dubai airport and arrived at Arlanda
airport near Stockholm on 19 July 1991. He applied, inter alia,
for a residence and work permit referring to his own and other
family members' situation in Iran. He also maintained that he had
been a member of a pro-Shah organisation since 1988.
On 26 November 1991 the National Immigration Board (Statens
Invandrarverk) rejected the application, stating as follows:
(Translation)
"(The applicant) entered Sweden on 19 July 1991 and applied
for asylum here. In support of his application he refers in
particular to the following: Since 1985 he has supported an
illegal royalistic organisation and became a member thereof
in 1988. (The applicant) drafted leaflets and wrote
catchwords on walls. He also distributed portraits of the
Shah's son and participated in several demonstrations. (The
applicant) has been arrested on several occasions. The
revolutionary guards have also searched the family home on
several occasions. In November 1990 he was arrested when he
tried to help his sister who was being harassed by the
guards. He remained detained until February 1991 when he
was sent to a military camp. In June 1991 he managed to
escape from the military service to Teheran, assisted by a
Kurdish family. He remained there until he left Iran. (The
applicant) submits that he has never had a genuine
passport.
The Immigration Board considers that (the applicant's)
submissions are exaggerated in substantial parts and not
trustworthy. (The applicant) has submitted that he was
arrested on several occasions since 1985, sometimes up to
25 days. His brothers have been detained and the family
home searched several times. The Board considers that it is
unlikely that (the applicant) could carry out political
activities in such circumstances. On 22 October 1990 (the
applicant) applied for a visa at the Embassy in Teheran and
submitted a passport valid until 21 February 1993.
In these circumstances the Board cannot find that (the
applicant) has a right to asylum under Chapter 3, Section
1 of the Aliens Act (Utlänningslagen). Furthermore, a need
for a particular strong protection has not been disclosed
either."
The applicant appealed against this decision to the Aliens
Appeals Board and an oral hearing was held on 15 January 1992
where the applicant, assisted by counsel, had the opportunity to
submit what, in his opinion, would be of relevance to the outcome
of the case. On 8 March 1993 the Aliens Appeals Board, however,
rejected the applicant's appeal, stating as follows:
(Translation)
"The Board finds that (the applicant) during the
proceedings has made contradictory statements in support of
the request for asylum. He has inter alia made
contradictory statements concerning how he was ill-treated
when (his brother Khosro) was wanted by the authorities and
how he used the passport at the Swedish Embassy in Teheran.
Already due to this the Board finds reason to question his
story.
When (the applicant) came to Sweden he did not have a
passport. His explanations concerning the reasons for this
cannot lead to any other conclusion than that he did have
a passport but disposed thereof in order to conceal
circumstances of particular importance to the examination
of his right to asylum here. This gives reason to reduce
the credibility of the information which he has submitted
in support of his application for a residence permit. The
Board also notes that (the applicant) according to the
investigations made, used a national passport of 21
February 1990 when he applied for a visa to Sweden.
The Board furthermore notes that (the applicant's)
allegations that he travelled from Dubai in the United Arab
Emirates to Sweden without a passport is unlikely and that
he has submitted divergent information about his journey.
The Board considers, having regard to the case as a whole,
that what (the applicant) has submitted and what has
otherwise been brought forward in the case, does not give
reason to believe his allegation that he is in need of
asylum here."
On 31 January 1994 the applicant submitted a new request for
asylum to the National Immigration Board. He now submitted, in
addition to his previous allegations, copies of two Iranian
documents of 12 October 1992 and 28 November 1993 from which it
appeared that the Iranian authorities were looking for him. He
also submitted a letter from the Iranian Women's Organisation in
Sweden supporting the applicant's application.
On 2 February 1994 the Immigration Board rejected the
application, stating as follows:
(Translation)
"The Immigration Board questions whether the documents
dated 12 October 1992 and 28 November 1993 are genuine,
firstly because they have been submitted very late,
secondly since no plausible explanation has been submitted
how (the applicant) got hold of these documents and,
thirdly, because the document of 12 October 1992 is an
internal note between the authorities. The Immigration
Board thus questions that this would be sent to (the
applicant's) family.
Furthermore, the Immigration Board considers that the
submission that (the applicant's) brother, Parviz, who was
expelled to Iran on 3 April 1993, had disappeared cannot be
believed since the Board has not been informed thereof
earlier. In one way or the other this information ought to
have been submitted to the Immigration Board by the
relatives living here.
Furthermore, a document from the Iranian Women's
Organisation in Sweden has been submitted. In this it is
inter alia stated that (the applicant) has worked actively
in Kurdistan in order to liberate the Iranian Nation.
Furthermore, it is submitted that a brother to (the
applicant) has disappeared upon return to Iran and that a
return of (the applicant) would be fatal to him.
The information the applicant has submitted in support of
his request for asylum is still not credible. The
circumstances referred to are thus not of a kind which
could lead to a change in a decision to reject the
application which has acquired legal force.
Particular reasons of a humanitarian kind for granting a
residence permit are not at hand either."
Following the applicant's application to the Commission on
4 February 1994 the National Immigration Board decided to stay
the execution of the expulsion order pending the Commission's
decision in the matter. The applicant, who had been detained with
a view to expulsion to Iran, was furthermore released.
B. Relevant domestic law
Under Chapter 2, Section 5, subsection 3, of the Aliens Act
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 the applicant is entitled to asylum and there
are weighty humanitarian reasons for allowing him to stay in
Sweden.
Under Chapter 3, Section 1, an alien may be granted asylum
because he is a refugee (para. 2) or, without being a refugee,
if he wishes not to return to his home country because of the
political situation there and provided he can put forward weighty
reasons in support of his wish (para. 3). The term "refugee"
refers to an alien who is staying outside the country of which
he is a citizen because he feels a well-founded fear of being
persecuted in that country, having regard to his race,
nationality, membership of a special social group or his
religious or political convictions, and who cannot or does not
wish, on account of his fear, to avail himself of his home
country's protection (Chapter 3, Section 2).
An alien, as referred to in Chapter 3, Section 1, is
entitled to asylum. Asylum may, however, be refused inter alia
if, in the case of an alien falling under Chapter 3, Section 1,
para. 3, there are special grounds for not granting asylum
(Chapter 3, Section 4). An alien may be refused entry into Sweden
if he lacks a visa, residence permit or other permit required for
entry, residence or employment in Sweden (Chapter 4, Section 1,
para. 2). When considering whether to refuse an alien entry or
to expel him, it must be examined whether he, pursuant to Chapter
8, Sections 1-4, can be returned to a particular country or
whether there are other special obstacles to the enforcement of
such a decision (Chapter 4, Section 12). A refusal of entry
issued by the National Immigration Board may be combined with a
prohibition on return for a specific period of time (Chapter 4,
Section 14). In reviewing a question of refusal or entry or
expulsion, the Aliens Appeals Board may also issue a prohibition
on return for a specific period of time (Chapter 7, Section 5,
subsection 2).
Under Chapter 7, Section 10, the National Immigration Board
may review its decision if new circumstances have emerged or for
any other reason, provided it would not affect the alien
negatively or be irrelevant to him. A review may take place even
if an appeal to the Aliens Appeals Board has been lodged against
the decision. Once the National Immigration Board has transmitted
the file to the Aliens Appeals Board it may only review its
decision if its opinion is requested by the Aliens Appeals Board
(Chapter 7, Section 10). The National Immigration Board or the
Aliens Appeals Board may refer a case to the Government together
with its opinion in the matter (Chapter 7, Section 11).
An alien who has been refused entry or who is to be expelled
may never be conveyed to a country where there is firm reason to
believe that he would be in danger of being subjected to capital
or corporal punishment or torture, or to a country where he is
not protected from being sent to a country where he would be in
such danger (Chapter 8, Section 1).
When a refusal of entry or an expulsion order is put into
effect, the alien may not be sent to a county where he would risk
being persecuted, or to a country where he would not be protected
from being sent on to a country where he would risk being
persecuted (Chapter 8, Section 2, subsection 1). An alien may,
however, be sent to such a country if he cannot be sent to any
other and if he has shown, by committing a particularly serious
offence, that public order and safety would be seriously
endangered by his being allowed to remain in Sweden. However,
this does not apply if the threatened persecution in the
receiving State implies danger to his life or is otherwise of a
particularly grave nature. Similarly, the alien may be sent to
a country referred to in subsection 1 if he has engaged in
activities endangering the national security of Sweden and if
there is reason to suppose that he would continue to engage in
such activities in Sweden and he cannot be sent to any other
country (subsection 2).
If the enforcement is not subject to any obstacles under,
inter alia, Chapter 8, Sections 1 and 2, an alien who has been
refused entry or who is to be expelled is to be sent to his
country of origin or, if possible, to the country from which he
came to Sweden. If the decision cannot be put into effect in the
manner indicated in subsection 1, or there are other special
grounds for doing so, the alien may be sent to some other country
instead (Chapter 8, Section 5).
When considering a request for a residence permit lodged by
an alien to be expelled according to a decision which has
acquired legal force, the National Immigration Board (and in
certain cases the Government too) may stay execution of that
decision. For particular reasons, the Board may also otherwise
stay execution (Chapter 8, Section 10).
If the enforcing authority finds that enforcement cannot be
carried out or that further information is needed the authority
is to 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 applicant complains that his expulsion to Iran would
violate Article 3 of the Convention. He claims that he risks
persecution on account of his own, as well as his family's
political activities.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced and registered on 4 February
1994.
On 4 February 1994 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 return the applicant to Iran until the
Commission had had an opportunity to examine the application.
The President further decided, pursuant to Rule 34 para. 3
and Rule 48 para. 2 (b), to bring the application to the notice
of the respondent Government and to invite them to submit written
observations on the admissibility and merits.
The Government's observations were submitted on 28 February
1994.
On 10 March 1994 the Commission prolonged the President's
indication under Rule 36 until 15 April 1994.
The applicant's observations in reply to those of the
Government were submitted on 18 March 1994.
THE LAW
The applicant complains that, if returned to Iran, he risks
persecution in view of his and his family's political activities.
He invokes Article 3 (Art. 3) of the Convention which reads:
"No one shall be subjected to torture or to inhuman or
degrading treatment or punishment."
The Government do not raise any objections in respect of the
six months' rule set out in Article 26 (Art. 26) of the
Convention and leave it to the Commission to decide whether
domestic remedies have been exhausted, having regard to the fact
that it is always possible to lodge a new request for a residence
permit with the National Immigration Board which must deal with
it, provided there are new circumstances which could call for a
different decision.
As regards the substance of the application the Government
point out that an alien's right to enter and reside in a
particular country is not as such guaranteed by the Convention,
nor is the right to political asylum. However, the Government
acknowledge that where substantial grounds have been shown for
believing that the person could, if extradited or expelled, face
a real risk of being subjected to treatment contrary to Article
3 (Art. 3) in the country of destination the responsibility
therefor would lie with the country extraditing or expelling the
alien concerned.
The Government submit that the provisions on enforcement in
the Swedish Aliens Act reflect almost exactly the same principles
as have been outlined by the European Court of Human Rights when
applying Article 3 (Art. 3) to extradition cases or to cases
concerning expulsion. Under Chapter 8, Section 1 of the Aliens
Act an alien refused entry or expelled may never be sent to a
country where there are substantial grounds to believe that he
would be in danger of suffering capital or corporal punishment
or of being subjected to torture, nor to a country where he is
not protected from being sent to a country where he would be in
such danger. Thus, the Swedish immigration authorities have
applied almost the same test as the Commission is carrying out
when applying Article 3 (Art. 3) to the present case.
In the circumstances of the present case the Government rely
on and agree with the opinions of the Swedish immigration
authorities and the reasons they have invoked. Thus, the
Government maintain that no substantial grounds have been shown
for believing that the applicant would face a real risk of
treatment contrary to Article 3 (Art. 3) of the Convention if
expelled to Iran.
The applicant maintains that the facts of the case disclose
substantial grounds for believing that he would be subjected to
treatment contrary to Article 3 (Art. 3) of the Convention if
returned to Iran. He has been arrested and ill-treated on several
occasions due to his political activities and it is undisputed
that he and his family have been harassed for years by the
Iranian authorities because of this. One of his brothers has died
in Iran and another brother has disappeared after being returned
from Sweden to Iran.
The applicant furthermore maintains that the Swedish
Government have totally misinterpreted the political situation
in Iran. According to information from the United Nations, almost
20,000 persons are incarcerated today in Iran for political
reasons. Accordingly, there is every reason to believe that the
facts as submitted by the applicant disclose reason to fear
treatment contrary to Article 3 (Art. 3) of the Convention.
As regards Article 26 (Art. 26) of the Convention the
Commission finds that the applicant has, in the circumstances of
the case, fulfilled the requirements of the exhaustion of
domestic remedies.
As regards the applicant's complaint made under Article 3
(Art. 3) of the Convention the Commission recalls that the
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 (ibid., p. 37, para.
111).
When considering this issue the Commission attaches
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 Commission observes, in particular, that
Chapter 8, Section 1, of the Aliens Act also 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
would be in danger of being subjected to capital or corporal
punishment, or torture, in that country (cf. No. 20981/92, Dec.
8.4.93 and No. 21808/90, Dec. 8.9.93, both unpublished).
The facts of the present case moreover disclose that the
decision to expel the applicant was made after careful
examination of his case, including an oral examination where the
applicant, assisted by counsel, had the opportunity to submit and
clarify everything which was of importance to the case. Having
regard to the outcome thereof the Commission shares the
Government's considerable doubts as to the credibility of the
applicant's story and finds on the whole that his account of his
background in Iran and escape to Sweden contains a number of
inconsistencies.
In these circumstances the Commission concludes, on the
evidence before it concerning the applicant's personal situation
and the general situation in Iran today, that he has failed to
show that the Swedish authorities would expose him to a serious
risk of treatment contrary to Article 3 (Art. 3) of the
Convention should they expel him to Iran (cf. also No. 16381/90,
Dec. 14.10.91, unpublished).
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)
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