Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 25849/94

by Mirvat MEZHER

against Sweden

The European Commission of Human Rights sitting in private on

6 July 1995, the following members being present:

MM. C.A. NØRGAARD, President

H. DANELIUS

C.L. ROZAKIS

E. BUSUTTIL

G. JÖRUNDSSON

S. TRECHSEL

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

B. MARXER

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

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 16 November 1994

by Mirvat Mezher against Sweden and registered on 5 December 1994 under

file No. 25849/94;

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 19 January 1995 and the observations in reply submitted

by the applicant on 24 March 1995;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Lebanese citizen born in 1966, is a medical

doctor. She resides at present at Ã…storp. Before the Commission she is

represented by Mr. Elias Arfwedson, a lawyer practising at Lund.

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

summarised as follows.

In June 1991 the applicant applied for a visa to enter Sweden and

visit her cousin, who had lived in Sweden for several years. The

application was rejected by the National Immigration Board (Statens

invandrarverk) on 2 July 1991.

On 16 July 1992 the applicant married her cousin. On the basis

of this relationship, the applicant was, on 10 June 1993, granted a

residence and work permit for the period from 10 June to

10 December 1993. Before the permit was granted, the Immigration Board

and the Swedish Embassy in Damascus had heard the spouses and the

husband had supported the application.

After the grant of the permit there were certain disagreements

between the spouses. The husband was notified of the Board's decision

but failed to tell the applicant, who instead was informed by the

Embassy in July 1993. On 15 July 1993 the permit was stamped in her

passport. During a visit to Lebanon in August 1993, the husband tried

to get hold of the passport, but the applicant refused to give it to

him.

Some members of the respective families tried to bring about a

reconciliation or a divorce between the applicant and her husband. The

husband then stated that he would not divorce the applicant, although

he still did not want her to come to Sweden. It turned out that he had

a girlfriend in Sweden. A reason for his refusal to divorce the

applicant appears to be a dispute between the families concerning

certain property. Moreover, he would be obliged to compensate the

applicant and her family in case of a divorce.

The applicant travelled to Sweden on 9 September 1993. On

20 September 1993 her husband reported to the local police authorities

in his home town in Lebanon that she had disappeared and that he had

been told that she had left for Sweden. As she was not allowed, as his

wife, to travel without his permission, he requested that she be

brought back to him and that necessary action be taken on account of

her having left alone without informing him.

In Sweden the applicant lived with her siblings at Åstorp. She

was not able to reach any agreement with her husband. He refused to

divorce her, although she declared that she was willing to renounce the

compensation he was liable to pay.

After the expiration of her residence and work permit the

applicant applied for a renewal. She stated that she needed time to

sort out her relationship with her husband. She claimed that they would

probably be able to live together if their respective families would

not interfere. However, if living together was not possible, she would

try to make her husband agree to a divorce. As soon as such an

agreement had been reached she would return to Lebanon. However, if she

were to be returned to Lebanon before having reached a divorce

agreement with her husband, he could have her placed in a special kind

of house arrest for women (Bayt at-Tâ'a) in Lebanon due to her reported

disappearance and disobedience. She would have to stay there until he

declared that she was obedient.

On 10 May 1994 the National Immigration Board rejected the

applicant's application and ordered her deportation. The Board stated

that, as she was not living with her husband, she could no more be

given a permit on the basis of this relationship. Referring to its

knowledge of the situation in Lebanon and the conditions under which

the applicant had lived, the Board further found her allegations of

house arrest to be considerably exaggerated.

The applicant appealed to the Aliens Appeals Board

(Utlänningsnämnden). She stated that she had lived together with her

husband and his parents during the month of June 1994. As her husband

could not accept her wish to work but expected her to take care of the

household, their cohabitation had, however, ended and the applicant had

returned to live with her siblings. The husband had allegedly stated

that he was tired of all the trouble and expenses she had caused him

and that he did not want to see her again.

The applicant further submitted a written statement by Professor

Jan Hjärpe, an expert on Islam at the department for religious studies

at the University of Lund. According to Mr. Hjärpe, a husband has,

under Islamic law, an unconditional right to divorce his wife. He is,

however, liable to pay compensation to the wife and her family. The

wife's right to a divorce is conditional in that she has to present

before a judge justifiable reasons for her request. By disobeying her

husband, the applicant has breached their marriage contract. As the

husband refuses to divorce her and there does not seem to be any

possibility under the law for the applicant to obtain a divorce, her

family is obliged to see to it that the contract is fulfilled. The

Lebanese authorities are obliged to assist them. Bayt at-Tâ'a means

"the house of obedience", i.e. the applicant may be placed in house

arrest until the matter is settled.

By decision of 10 October 1994, the Aliens Appeals Board agreed

with the assessment made by the National Immigration Board and upheld

the appealed decision.

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 applicant until the Commission had had an opportunity

to examine the present application, the National Immigration Board, on

9 December 1994, decided to stay the enforcement of the deportation

order.

The applicant later submitted a fresh application for a residence

permit to the Aliens Appeals Board. She submitted a copy of the police

report of 20 September 1993.

On 8 June 1995 the Aliens Appeals Board rejected the new

application. The Board stated that there were strong reasons to call

into question the purpose of the husband's report to the police. It

further found it unlikely that Lebanese authorities would accept

Lebanese citizens to be treated in the way described by the applicant.

It concluded that it was improbable that the applicant would be

subjected to treatment contrary to Article 3 of the Convention and that

no violation of that Article had been substantiated.

COMPLAINTS

The applicant complains that her deportation would violate

Article 3 of the Convention, as she would be subjected to inhuman and

degrading treatment and punishment upon return to Lebanon.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 16 November 1994 and registered

on 5 December 1994.

On 3 December 1994 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 applicant to

Lebanon until the Commission had had an opportunity to examine the

application. The Commission further decided, in accordance with Rule 48

para. 2 (b), to communicate the application to the respondent

Government.

By decisions of 2 March, 12 April and 25 May 1995, the Commission

prolonged its indication under Rule 36, ultimately until the end of the

Commission's session between 26 June and 7 July 1995.

The Government's observations were submitted on 19 January 1995.

The applicant replied on 24 March 1995, after an extension of the

time-limit fixed for that purpose. Further observations were submitted

by the applicant on 12 June 1995 and by the Government on 14 June 1995.

On 13 April 1995 the Commission decided to grant the applicant

legal aid.

THE LAW

The applicant complains of a violation of 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 complaint is manifestly

ill-founded. The Government argue that Swedish authorities cannot be

held responsible for what might occur as a result of a dispute between

the families in question concerning the breach of a marriage contract,

compensation and property ownership. The Government further find that

it is highly unlikely that the applicant will be deprived of her

liberty in the manner described by her and that - should a period of

detention in fact occur - such treatment cannot per se be regarded as

being in breach of Article 3 (Art. 3) of the Convention. The Government

thus contend that substantial grounds have not been shown for believing

that the applicant would face a real risk of treatment contrary to

Article 3 (Art. 3), for which reason the enforcement of the expulsion

order would not constitute a violation of that Article (Art. 3).

The applicant submits that, as her husband has reported to the

Lebanese police that she is disobedient and has run away from home, the

police will capture her upon her return to Lebanon and contact the

husband, who will decide where she is to be placed. She will be placed

in house arrest until she surrenders to her husband's wishes. This

involves an indefinite day and night confinement to a small room, where

she will be fed just as much as to make her survive. Thus, the

treatment allegedly attains the minimum level of severity required for

the application of Article 3 (Art. 3) of the Convention. The applicant

further maintains that there is an imminent and real risk that she will

be subjected to such treatment, as it would be disgraceful for her

husband not to carry out his action against her. Moreover, the Lebanese

authorities are obliged to assist him.

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 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 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).

In the present case, the Commission notes that on

20 September 1993 the applicant's husband reported to the Lebanese

police that she had disappeared and requested that necessary action be

taken against her as she had left alone without informing him. The

applicant alleges that due to this report she will be captured by the

police upon her return to Lebanon. Although her family seems to be

obliged to make her fulfil her marital obligations, it appears that it

is up to her husband to decide whether to place her in house arrest.

The Commission considers that an issue under Article 3 (Art. 3)

of the Convention might arise if a person, in the country to which he

or she is to be expelled, faces a real risk of being subjected to

treatment of the kind described by the applicant. In the present case,

the Commission, however, finds that it has not been established that

the applicant faces a real risk of being placed in house arrest upon

return to Lebanon. In the above-mentioned police report, there is no

mention of Bayt at-Tâ'a or any other similar measures. It has not been

alleged that the applicant's husband has expressed an intention to

place her in confinement. According to the applicant's appeal to the

Aliens Appeals Board, her husband has only stated that he does not wish

to see her again as he is disappointed of her intention to work and

tired of the trouble and expenses she has caused him. The Commission

further considers that there is no reason to believe that her husband

would have an interest in having her placed in confinement.

In view of the above, the Commission finds that the applicant has

not shown substantial grounds for believing that she will face a real

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

the Convention, if she returns to Lebanon.

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, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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MEZHER v. SWEDEN

MEZHER v. SWEDEN

LEXI