Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 28268/95

by Delbar BOLOURI

against Sweden

The European Commission of Human Rights sitting in private on

19 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 30 June 1995 by

Delbar Bolouri against Sweden and registered on 21 August 1995 under

file No. 28268/95;

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 a woman of Iranian citizenship. She is a Sunni

Muslim of Kurdish origin and was born in 1955. She is represented by

Mr. Manólis Nymark, a lawyer in Stockholm.

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

summarised as follows.

The applicant arrived in Sweden on 28 October 1992 together with

her father, both holding a tourist visa. On 19 November 1992 she

requested asylum in Sweden. In the asylum interview she stated, inter

alia, that she had taken leave from her post at the University of

Medicine and Health in Tehran until 20 February 1993. She and her

father had had no problems with the authorities controlling departures

from the airport of Tehran. She had later reported her passport as

having been stolen in Sweden. After his arrival in Sweden, her father

had requested a residence permit in the country "which would permit him

to travel" between Iran and Sweden "without always having to obtain an

entry visa".

The applicant furthermore stated that she feared being executed,

tortured or otherwise persecuted, if she were to be returned to Iran.

She referred to her Kurdish origin, her sex and her membership of the

banned Democratic Party of Iranian Kurdistan ("DPIK"). She had joined

this party in 1979 and had mainly been distributing propaganda and

collecting money and clothes. As from 1982 she had been less active in

the party. Her husband, who had been shot on 24 November 1990, had also

been active in the DPIK.

The applicant alleged that up to her departure from Iran she had

been harassed almost daily by members of the Revolutionary Guard

wishing to know whether she was still politically active and showing

an interest in her relatives in Sweden. Moreover, in September 1992 she

had illegally visited relatives in "Kurdistan", where she had joined

others in attempting to voice a public protest against the Iranian

regime. When leaving for Sweden, the applicant had intended to spend

holidays there, but after her departure from Iran she had allegedly

been informed that the authorities had been searching for her at her

work place. She had therefore decided to request asylum, fearing that

her activities as a dissident had been unveiled as a result of her

attempt to start the protest in September 1992.

In support of her asylum request the applicant later referred,

inter alia, to a certificate issued on 17 December 1992 by the

Representative of the DPIK in Europe, stating that the applicant was

a "sympathiser" of the party. In a further letter of 3 February 1993

the Representative stated that the applicant had been an "underground

militant" of the party in Kurdistan.

The applicant's father returned to Iran on 22 April 1993. On his

return he was allegedly immediately questioned about his daughter by

members of the Revolutionary Guard. He later travelled to Sweden once

more.

On 14 February 1994 the National Immigration Board (Statens

invandrarverk) rejected the applicant's asylum request. The Board noted

that she had entered Sweden holding a valid passport and entry visa and

observed inconsistencies in the account of her background. It

furthermore found that she had been able to remain active in the DPIK

for a very long time without being unveiled, this having allegedly

happened only after her arrival in Sweden. It appeared therefore that

the Iranian authorities had not shown much interest in her.

In her appeal to the Aliens Appeals Board (Utlänningsnämnden) the

applicant added that she had been informed that her employment contract

had been terminated and that her salary had been seized. She was also

expecting a court judgment concerning an accusation that she had

committed an offence in office. She referred to a copy of a public

notice issued in February 1995 by the Board for Offences in Office

Committed by Staff of the University of Medicine and Health in Tehran.

Her name had appeared on the list. Those appearing on the list had been

ordered to report at the office of the Board within ten days; otherwise

a judgment by default would be rendered.

In a letter of 4 May 1994 the Scandinavian Representative of the

DPIK confirmed that the applicant had had clandestine contacts with the

party.

On 13 March 1995 the Aliens Appeals Board rejected the

applicant's appeal, considering in essence that her account of her

dissident activities was not credible. It noted her statement that

prior to her departure from Iran she had almost daily been contacted

by members of the Revolutionary Guard. It therefore found it very

unlikely that she could have remained politically active to the extent

alleged without such activites having been unveiled before she left for

Sweden. Moreover, she had left Iran holding a valid passport of that

country. Finally, the accusation that she had committed an offence in

office was to be seen in the light of the fact that she had been

granted leave from her work place only until February 1993.

In a certificate of 20 April 1995 another representative of the

DPIK in Europe stated that the applicant was a "sympathiser" of the

party and that her life would therefore be in danger, if she were

returned to Iran.

In June 1995 the applicant lodged a further request for a

residence permit, referring, inter alia, to a certificate of

28 June 1995 by another representative of the DPIK in Europe, stating

that the applicant was a "militant" of the party.

On 30 June 1995 the Aliens Appeals Board rejected the applicant's

further request.

On 5 July 1995 the applicant lodged a further request for a

residence permit, referring to her mental state. She invoked a report

by Dr. Michael Brune, a physician specialising in neurology. According

to Dr. Brune, the applicant was suffering from a long-lasting reactive

depression and the risk that she might commit suicide was therefore to

be taken into account during the enforcement of the expulsion order.

Dr. Brune also noted that the applicant had been severely injured by

grenade splinter. She had deep scars on her right arm and splinter

remained in her right chest. She was therefore still experiencing pain

and neurological injuries.

On 5 July 1995 the Aliens Appeals Board decided not to stay

enforcement of the expulsion order. Subsequently it appears to have

rejected the applicant's further request.

On 6 July 1995 the applicant was interviewed in a television

programme apparently in regard to her background in Iran and her fears

of being ill-treated on her return there.

On 7 July 1995 the applicant was expelled to Iran. She is now

living at a secret address in Tehran.

The applicant has a brother and sister, who live in "Kurdistan".

She has a further brother and two sisters, who all hold permanent

resident permits in Sweden, where they lived already at the time of her

arrival there in 1992.

The applicant visited Sweden already in 1986, also then holding

a tourist visa.

According to the 1989 Aliens Act (utlänningslag 1989:529), the

authorities must, when considering whether to refuse an alien entry or

to expel him or her, examine whether he or she can be returned to a

particular country or whether there are other special obstacles to the

enforcement of such a decision. If the enforcement meets no obstacles

under chapter 8, an alien is to be expelled or returned to his or her

country of origin or, if possible, to the country from which he or she

came to Sweden. If the decision cannot be put into effect in the manner

indicated above or if special reasons exist, the alien may be sent to

another country (chapter 8, sections 1-5).

COMPLAINTS

The applicant initially complained that, if returned to Iran, she

risked being tortured or subjected to other treatment contrary to

Article 3 of the Convention. She referred to her political background

in that country.

The above complaint has been maintained after the applicant's

expulsion. In her final application of 10 August 1995 she also refers

to the TV interview aired on 6 July 1995 which she fears has come to

the attention of the Iranian Embassy in Sweden. She also states that

she lacks the necessary means to obtain, in Iran, adequate care and

medical treatment for her arm injuries.

In her final application of 10 August 1995 the applicant also

considers that the excessive length of the proceedings in Sweden

subjected her to inhuman and degrading treatment and, at any rate,

resulted in ties being created between her and notably her siblings in

Sweden. Her expulsion therefore also constituted inhuman and degrading

treatment on these grounds, having regard to her fragile state of

health.

In her final application of 10 August 1995 the applicant also

considers that the weighing of the evidence presented by her to the

Aliens Appeals Board and the reasoning of that Board were contrary to

the recommendations issued by the United Nations High Commissioner for

Refugees and therefore subjected her to degrading treatment.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 30 June 1995 and registered on

21 August 1995.

On 5 July 1995 the Commission found no basis, under Rule 36 of

the Commission's Rules of Procedure, for an indication to the

respondent Government that it would be desirable in the interest of the

parties and the proper conduct of the proceedings before the Commission

not to expel the applicant to Iran until it had examined the

application further.

THE LAW

The applicant complains about her expulsion to Iran. She invokes

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 Commission recalls that 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., para. 103). A mere possibility of

ill-treatment is not in itself sufficient (ibid., p. 37, para. 111).

(a) The Commission has first examined whether the applicant's return

to Iran violated Article 3 (Art. 3) of the Convention, having regard

to her alleged political background in that country and the surrounding

circumstances. It notes the Swedish authorities' doubts as regards the

applicant's account of her background in this respect and observes, in

particular, that she was able to leave Iran holding a valid passport.

Also the discrepancies between the various written statements by the

DPIK concerning her alleged activities within that party call the

credibility of her account into question. The Commission therefore

shares the view of the Swedish authorities that she had not prior to

her expulsion shown that she would, on account of her alleged political

background, run a real risk of being subjected to treatment contrary

to Article 3 (Art. 3), if returned to Iran.

The Commission also attaches a certain 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

pursuant to chapter 8, section 1 of the Aliens Act 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 decision to expel the applicant appears to have been

made after careful examination of her case (cf. Eur. Court H.R., Cruz

Varas and Others judgment of 20 March 1991, Series A no. 201, p. 31,

para. 81, and, as regards expulsion to Iran, No. 20981/93,

P. v. Sweden, Dec. 8.4.93, unpublished).

(b) The Commission has next considered the applicant's assertion that

her state of health is "fragile" and that she lacks the necessary means

to obtain, in Iran, adequate medical treatment for her arm injuries.

The Commission does not exclude that a lack of proper care in a case

where someone is suffering from a serious illness could in certain

circumstances amount to treatment contrary to Article 3 (Art. 3)

(No. 23634/94, Dec. 19.5.94, D.R. 77-A, p. 137). In the present case

it does not find it established, however, that the applicant could not

obtain the necessary medical treatment in her own country. Thus there

are no substantial grounds for believing that she was exposed to a real

risk of being subjected to treatment contrary to Article 3 (Art. 3) on

account of being expelled to Iran in her particular state of health.

(c) As regards the allegedly excessive length of the proceedings

before the Swedish authorities and the effects thereof on the

applicant's private and family life, the Commission finds no appearance

of any violation of Article 3 (Art. 3) of the Convention. The same is

true as regards the allegedly incorrect assessment by the Aliens

Appeals Board of the evidence adduced in support of the applicant's

claims.

It follows that the application must as a whole 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, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(M. de SALVIA) (S. TRECHSEL)

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BOLOURI v. SWEDEN

BOLOURI v. SWEDEN

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