Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 32448/96

by Korosh HATAMI

against Sweden

The European Commission of Human Rights sitting in private on

23 January 1997, 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

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

B. MARXER

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

Mrs. M. HION

Mr. R. NICOLINI

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 22 July 1996 by Korosh HATAMI against Sweden

and registered on 30 July 1996 under file No. 32448/96;

Having regard to the reports provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having regard to the observations submitted by the respondent

Government on 10 October 1996 and the observations in reply submitted

by the applicant on 8 November 1996 as well as the information

submitted by the Government on 12 December 1996 and by the applicant

on 9 January 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Iranian citizen, born in 1971. He is a

student and resides at present at Hässelby, Sweden. Before the

Commission the applicant is represented by Mrs Ewa Lilliesköld, a

lawyer practising in Stockholm.

The facts of the case, as submitted by the parties, may be

summarised as follows.

A. Particular circumstances of the case

The applicant grew up in the town of Borojerd in Iran together

with his parents, four brothers and three sisters. One of his brothers

was executed in Iran in 1990. Two other brothers and one sister are now

living in Sweden as refugees. The remaining brother and sisters as well

as the applicant's mother are living in Iran. His father died in 1986.

In 1985, at the age of 14, the applicant commenced his political

activities within the Mujahedin organisation. The first two years he

was considered a sympathiser which meant that he was a member of a

group and was expected to distribute leaflets and to produce slogans.

After two years he became the head of a group and was responsible for

keeping contact with superiors and other contact persons within the

organisation. His group usually met in a student accommodation where

they also kept a duplicating machine. The applicant was also in

possession of two weapons which were hidden nearby.

On 6 February 1990 the applicant was arrested by the SEPAH (the

Iranian Security Police) in Borojerd, suspected of carrying out illegal

political activities. A leaflet was found in his pockets and he was

taken to a prison in Borojerd. The applicant remained detained for two

years, until 2 February 1992 when he was released due to lack of

evidence. He was ordered to report once a month to the police and he

submits that he was under surveillance following his release.

While imprisoned the applicant was interrogated frequently and

subjected to torture and other inhuman and degrading treatment. He

submits that he was handcuffed and beaten while tied to chairs or to

poles in a so-called "grilled chicken" position. His leg was broken

during one of these beatings. He was furthermore subjected to electric

shocks to his finger tips and his genitals.

Two to three months after his release his former contact person

within the Mujahedin organisation approached the applicant who

subsequently again took up his position as the head of a group of four.

The group continued to meet at the student accommodation and to

distribute leaflets.

In December 1992 the applicant travelled from Borojerd to

Teheran. While the applicant was there a member of his group was

arrested. Through his contact person the applicant was subsequently

informed that this member had, under torture, revealed that the

applicant was the head of the group, where the group met and what

equipment they had for their work within the Mujahedin organisation.

Thus, after six days in Teheran the applicant and his contact person

went to Sanandaj in the north of Iran as he was convinced that he was

wanted by the security police in Borojerd. The applicant remained in

Sanandaj for approximately six months. During that period he returned

to Teheran once and applied for a tourist visa to Sweden at the Swedish

Embassy. He used a false passport which he had received from his

contact person. On 30 March 1993 the Swedish Embassy turned down the

applicant's request on the ground that the person in Sweden referred

to by the applicant was not known to be residing at the address

indicated.

Back in Sanandaj the applicant decided to leave Iran illegally.

In June 1993 he travelled by car to Bandar Abbas in the southern part

of Iran and used a false ID-card when stopped at various check-points.

In Bandar Abbas the applicant paid a person 300,000 toman. He then left

for Dubai on 7 June 1993. In Dubai the applicant met another person who

took him by plane to Amsterdam. There he received an air ticket and a

boarding pass for Stockholm. He arrived in Sweden on 13 June 1993 and

applied for asylum upon arrival.

On 1 July 1993 the National Immigration Board (Statens

Invandrarverk, hereinafter the SIV) drew up a report on the applicant's

reason for his request for asylum and held an oral hearing on

30 December 1993. In support of his request the applicant also

submitted a medical certificate of 14 January 1994 which contains an

account of the information provided by the applicant concerning his

detention, the alleged ill-treatment in Iran and the scars found on his

body.

By decision of 13 July 1994 the SIV rejected the applicant's

request for asylum and ordered his expulsion. The SIV did not find it

credible that the applicant, for political reasons, risked persecution

in Iran. In its decision the SIV stated inter alia as follows:

(Translation)

"In a general evaluation of the circumstances, the SIV does

not believe [the applicant's] statement that because of

certain political reasons he risks persecution in his home

country, if returned. The SIV does not think that the

information given by [the applicant] regarding his

political activity is credible, for example the storage of

the duplication machine and weapons in the same locality as

that in which they held their meetings, primarily due to

the risk of being exposed. Comparing this to the background

information that the SIV has about the risks associated

with anti-government information in Iran, the SIV finds it

unlikely that he would dare to continue his political

activity after the stated imprisonment as he was after this

ordered to report [to the authorities] and was under

surveillance.

[The applicant] has, during the investigation, supplied

different information for instance regarding the weapons he

claims to have stored on behalf of Mujahedin and regarding

the point in time for his order not to travel. The SIV also

questions the information about how he was exposed when his

friend was arrested. The SIV also questions if it is likely

that [the applicant] chooses to travel to Teheran and apply

for a visa to Sweden when he is wanted and when the

application can also be made by post and even, if it is

likely that he, as a wanted person, wants to leave his home

country in South Iran to stay in North Iran for six months.

As regards the medical certificate which has

been submitted, it does not support the

affirmation that the fracture of the applicant's

leg is an effect of alleged torture. Nor does it

support the contention that the urethra

condyloma from which the applicant is suffering

could have arisen as a result of alleged

torture.

The SIV notes that the applicant has been unable to present

the documents he used when going to Sweden. In spite of the

explanation given in this respect, his conduct cannot be

understood in any other way than as an attempt to conceal

facts of significance for making an assessment of his need

of protection in Sweden."

The applicant appealed against the decision to the Aliens Appeals

Board (Utlänningsnämnden) which at the applicant's request held a

supplementary hearing on 8 May 1996 at which the applicant, his counsel

and an interpreter were present. At the hearing the applicant provided

further details about his activities in Iran and other facts relevant

to his request for political asylum and answered questions from the

Board. In support of his appeal the applicant also invoked a medical

expert opinion by Dr SJ of the Center for Torture and Trauma Survivors

at Karolinska sjukhuset in Stockholm (CTD), dated 3 April 1995.

On 1 July 1996 the Board rejected the appeal and ordered the

applicant's expulsion. The Board gave the following reasons for its

decision:

(Translation)

"The Board notes that [the applicant] did not have a

passport, nor any other travel document, when arriving in

Sweden. If an asylum applicant destroys or in any other way

leaves behind the passport document that has been used for

the journey here, the conclusion normally is that the

applicant is withholding information that would be of the

utmost importance for the evaluation of the asylum

application. The trust in other information that the

applicant provides, can then be reduced. The Board is of

the opinion that if the applicant has provided a coherent

story that in itself is acceptable and that further can be

supported by other information in the case, the fact that

the applicant has lost the passport document cannot result

in a conclusion that the story lacks truth. There is also

reason to note that even if what is stated regarding the

passport document can raise certain doubts, these doubts

should not, with the principles for evaluation of

information that are applicable in asylum matters, form the

verdict if the applicant in all other matters appears to be

credible and his story probable.

From the documents in the case of [the applicant], it can

be noted that he applied for a visa to Sweden at the

Embassy of Sweden in Teheran on 13 January 1993. From the

application for a visa it appears that he has a passport,

dated 11 November 1992 and valid until 11 November 1995.

[The applicant] states that he received the passport

through his contact person and that it was not legally

authorised. He has also stated that he did not know that

he was not allowed to travel when he applied for a visa.

[The applicant] has stated that after being released from

prison he was ordered to report to the police and subject

to surveillance by the authorities, and it is therefore the

opinion of the Board that it is not credible that he should

have applied for a visa with a false passport document;

because of the rigorous checks when leaving Iran it is

unlikely that [the applicant] would take such a risk,

trying to leave Iran with a false passport document.

According to the evaluation by the Board, [the applicant]

has applied for a visa with a legal passport document,

which indicates that he was not subjected to any special

interest by the authorities. The Board also questions that

[the applicant] should have visited a foreign embassy in

Teheran, which is guarded by Iranian police, if he had been

wanted.

The Board finds that [the applicant's] information about

the reason as to why he was arrested and then imprisoned

for two years and subjected to torture, is vague and less

probable.

The Board also finds in the SIV's stated reasons, that

there is reason to question [the applicant's] information

about his political activity and that after the stated

imprisonment he should have been able to continue his

political activities despite the fact that he was under

surveillance by the authorities.

The statements, etc. from CTD that have been provided in

the case show that [the applicant] has healed scars in the

face, on his neck, arms, body, right hip and outer

genitalia. According to the Board, this does not support

the conclusion that [the applicant's] scars and wounds are

a result of actions based on his stated anti-government

activities in Iran.

In a total evaluation of what [the applicant] has stated

and other facts that have been produced in the case, the

Board considers that he cannot be regarded as a refugee

according to chapter 3 section 2 in the Aliens Act

(1989:529).

There is no other reason, humanitarian or other, for

granting [the applicant] a residence permit."

Following the decision of the Aliens Appeals Board there were no

impediments against enforcing the expulsion order. However, having been

informed about the Commission's recommendation under Rule 36 in the

Commission's Rules of Procedure, the SIV decided on 30 July 1996 to

stop the enforcement until further notice. This decision is still

valid.

B. Relevant domestic law

Under chapter 3 section 1 of the Aliens Act an alien may be

granted asylum because he is a refugee 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. 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, on account of his fears,

cannot or does not wish 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 subsection 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 subsection 2). When considering whether to refuse

an alien entry or to expel him, it must be examined whether, pursuant

to chapter 8 sections 1-4 he 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).

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 country where he would risk being

persecuted, or to a country where he would not be protected from being

sent 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 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 SIV (and in certain cases the Government too) may stay

execution of that decision. For particular reasons, the SIV may also

otherwise stay execution (chapter 3 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 SIV accordingly. In such a case, the SIV may decide on the

question of enforcement or take such other measures as are necessary

(chapter 8 section 13).

COMPLAINTS

The applicant complains that an expulsion to Iran would amount

to a violation of Article 3 of the Convention. He claims that he risks

persecution and ill-treatment on account of his political activities.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 22 July 1996 and registered on

30 July 1996.

On 30 July 1996 the President of the Commission decided to

indicate to the respondent Government, in accordance with Rule 36 of

the Commission's Rules of Procedure, that it was desirable in the

interests of the Parties and the proper conduct of the proceedings

before the Commission not to deport the applicant to Iran until the

Commission had had the opportunity to examine the application. The

President furthermore decided to invite the respondent Government to

submit written observations on the admissibility and merits of the

application.

Following two extensions of the time-limit fixed for this purpose

the Government submitted their observations on 10 October 1996.

Following one extension of the time-limit the applicant submitted

his observations in reply on 8 November 1996.

Further information was submitted by the Government on

12 December 1996 and by the applicant on 9 January 1997.

THE LAW

The applicant complains that, if returned to Iran, he risks

persecution in view of his 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 SIV 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, in particular having regard to their

considerable experience in handling asylum cases concerning Iranian

citizens. 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

returned 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, imprisoned and ill-treated due to his

political activities and it is undisputed that he and his family have

been harassed by the Iranian authorities.

The applicant furthermore maintains that the Swedish Government

have totally misinterpreted the political situation in Iran where

thousands of persons are undisputedly incarcerated 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.

The Commission considers, in the light of the parties'

submissions, that the case raises complex issues of law and of fact

under the Convention, the determination of which should depend on an

examination of the merits of the application. The Commission concludes,

therefore, that the application is not manifestly ill-founded, within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No

other grounds for declaring it inadmissible have been established.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

merits of the case.

H.C. KRÜGER S. TRECHSEL

Secretary President

to the Commission of the Commission

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HATAMI v. SWEDEN

HATAMI v. SWEDEN

LEXI