Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 24900/94

by M.M.M.-M.

against Sweden

The European Commission of Human Rights (Second Chamber) sitting

in private on 22 February 1995, the following members being present:

Mrs. G.H. THUNE, Acting President

MM. H. DANELIUS

G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

Mr. K. ROGGE, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 1 June 1994 by

M.M.M.-M. against Sweden and registered on 16 August 1994 under file

No. 24900/94;

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, a Ugandan citizen born in 1966, is a second

lieutenant in the Ugandan army, the National Resistance Army (NRA).

He is at present in hiding in Sweden.

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

summarised as follows.

In 1985 the applicant joined the NRA, at this time a guerilla

movement, as a protest against human rights violations and the murder

of his parents. After the change of government in 1986, he was

attached to the Directorate of Barracks and Stores at the Military

Headquarters assigned to do clerical work.

In 1990 the applicant was transferred to a battalion whose task

was to quell the insurgents in northern Uganda. Because of genocide

and torture allegedly carried out by the NRA, he decided, in the autumn

of 1990, to leave the battalion. He went to Kampala, but was later

brought back. Upon return, he was arrested and charged with subversion

and was put in a military prison. In prison, he became ill and was

therefore taken to a military hospital near Kampala. On 8 March 1991

he managed to escape from the hospital with the help of some army

friends who provided him with a movement order.

After hiding at different places for some months, the applicant

bought from an intermediary a false Ugandan passport, which indicated

that he was a student and that he was born in 1968. After an

unsuccessful attempt at leaving the country on 9 August 1991, he left

Uganda via Entebbe airport on 18 August 1991. He was escorted to the

airport by a high-ranking army officer, who posed as his father. He

travelled via Cairo and Frankfurt and arrived, later the same day, at

Arlanda airport, Stockholm. The following day, 19 August 1991, he

applied for asylum.

In a subsequent police interrogation and in a letter from his

public counsel to the immigration authorities, the applicant stated,

in addition to the above-mentioned facts, that he had not belonged to

any political party or organisation or taken part in any political

activities in Uganda and that he had not been persecuted. He claimed,

however, that, upon return, he risked a long prison sentence or

execution because of his desertion from the army during ongoing

fighting.

On 16 June 1992 the National Immigration Board (Statens

Invandrarverk) rejected the applicant's application and ordered his

expulsion. The Board did not find it credible that he had been charged

with subversion. It further considered that the other allegations

submitted did not meet the requirements for obtaining asylum or a

residence permit in accordance with the Aliens Act (Utlänningslagen,

1989:529).

The applicant appealed to the Aliens Appeals Board (Utlännings-

nämnden), which, at the request of the applicant, asked for information

from the Swedish embassy in Nairobi, Kenya. In a reply of

23 November 1993, the embassy stated that the information supplied by

the applicant was improbable. It found it unlikely that the applicant

had been brought from the north of Uganda to a hospital in Kampala and

that he had obtained a passport through an intermediary. Furthermore,

according to the embassy, he would hardly be charged with subversion

for having deserted the army.

In answer to the embassy's statements, the applicant alleged that

the only military hospital was placed in Kampala and that all documents

in Uganda can be obtained with money. He further maintained that after

he had left the battalion in the autumn of 1990 he was charged with

subversion and subsequent to his escape from the hospital he is now

charged and wanted for desertion.

On 26 January 1994 the Aliens Appeals Board rejected the

applicant's appeal and stated, inter alia, the following:

(translation)

"[The applicant] entered Sweden on 18 August 1991 as a

tourist with a guarantor and did not apply for asylum until

the following day. [The applicant] has chosen to depart

from Entebbe airport with a passport of his own, issued on

4 July 1991 and indicating student as his profession.

Furthermore, [the applicant] was granted tax clearance on

16 August 1991. These circumstances lessen the credibility

of [the applicant's] statements as to his need of asylum.

[The applicant] has made contradictory statements as to

which period he was absent without leave from his military

service and the date of his escape from the hospital. [The

applicant's] statement that he had been charged with

subversion due to his desertion is not credible and was

made only at a late stage in the proceedings before the

National Immigration Board. Only after the embassy's

investigation and only before the [Aliens Appeals] Board

has [the applicant] stated that he was first charged with

subversion and later also with desertion. [The

applicant's] statements concerning the charges are, in

these circumstances, not credible.

The information given by [the applicant] on his referral

from the north of Uganda to a hospital in Kampala, on the

procurement and issuing of the passport and on the security

service's knowledge of and interest in him is, according to

the Board's assessment, not probable."

COMPLAINTS

The applicant complains that the Swedish authorities have wrongly

ordered his expulsion and maintains that he will be subjected to

treatment contrary to Article 3 of the Convention upon return to

Uganda.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 1 June 1994. By letter of

17 June 1994 the applicant requested the Commission to stay his

deportation from Sweden.

On 28 June 1994 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 16 August 1994.

THE LAW

The applicant complains that, if expelled to Uganda, he risks

being subjected to treatment contrary to 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 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 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).

The applicant contends that he will be prosecuted and possibly

executed for subversion and desertion. He alleges that while in prison

after having left his battalion he was tortured and mistreated. He

refers to various documents showing, inter alia, that he has been

enrolled in the NRA and that the Military Code of Conduct prescribes

that a court martial shall try and judge a deserter as it deems fit.

He has also submitted an NRA document which states that he has been

tried and sentenced in his absence and that he is accordingly wanted.

The Commission does not consider it established that the

applicant would risk capital punishment for subversion or desertion if

returned to Uganda. Concerning his possible imprisonment for these

offences, the Commission does not find such a penalty so severe as to

raise an issue under Article 3 (Art. 3) of the Convention (cf., e.g.,

No. 12364/86, Dec. 17.10.86, D.R. 50 p. 280). In this connection, the

Commission notes that the NRA document concerning the trial and

sentencing in absentia does not state the name of the court, the

offence or the penalty. Moreover, the Commission recalls from its

previous case-law that Chapter 8, Section 1 of the Aliens Act 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 the

alien would be in danger of being subjected to capital or corporal

punishment or torture in that country (cf., e.g., No. 22325/93,

Dec. 8.9.93, not published).

In view of the above, the Commission finds no substantiation of

the applicant's claims that he would be subjected to treatment contrary

to Article 3 (Art. 3) of the Convention upon return to Uganda.

It follows that the application is 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 Second Chamber Acting President of the Second Chamber

(K. ROGGE) (G.H. THUNE)

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M.M.M.-M. v. SWEDEN

M.M.M.-M. v. SWEDEN

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