Lexploria

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

Menu

SADAGHI v. SWEDEN

SADAGHI v. SWEDEN

LEXI