Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23446/94

by Gholamreza NIKNAM

against Sweden

The European Commission of Human Rights (Second Chamber) sitting

in private on 12 October 1994, the following members being present:

MM. S. TRECHSEL, President

H. DANELIUS

G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

MM. 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 6 September 1993

by Gholamreza NIKNAM against Sweden and registered on 14 February 1994

under file No. 23446/94;

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 is an Iranian citizen, born in 1929. He is

presently serving a prison sentence in Norrtälje, Sweden.

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

summarised as follows.

Particular circumstances of the case

In 1991 the applicant married a woman of Iranian origin, S., who

he claims has been granted Swedish citizenship. The applicant had left

his own family in Iran in order to marry S., who had entered Sweden in

1986 together with her then husband, also an Iranian citizen.

Subsequently she has lived both in Sweden and Iran.

In June 1992 the applicant was granted a short-term residence

permit in Sweden. He entered the country in August 1992 and his

residence permit was subsequently prolonged until June 1993.

On 18 June 1993 the District Court (tingsrätten) of Gothenburg

convicted the applicant of aggravated smuggling and an aggravated

narcotics offence and sentenced him to three years' imprisonment. It

also issued a prohibition on his return to Sweden valid until

1 June 2003. The applicant had objected to his deportation, referring

to alleged threats by his previous family in Iran and his loss of his

pension rights there. The District Court observed, however, that,

according to the National Immigration Board (statens invandrarverk),

there were no obstacles under Chapter 8, Sections 1-4 of the

1989 Aliens Act (utlänningslag 529/89) to his deportation. The District

Court further had regard to "his previous aggravated criminal behaviour

directed against Sweden which he [had] pursued after his entry into

Sweden". No details pertaining to his previous criminal behaviour have

been provided by the applicant.

The District Court also convicted S. of similar offences and

sentenced her to five years and six months' imprisonment.

The applicant appealed to the Court of Appeal of Western Sweden

(Hovrätten för Västra Sverige) as far as his deportation order was

concerned, requesting it to revoke the deportation order or to shorten

the prohibition on his return. He alleged that he risked being executed

in Iran because he had helped S. escape from the country in 1990. The

smuggler who had assisted in her escape had allegedly revealed the

applicant's identity. Although the applicant had been a highly placed

official in the administration of the Shah, he had been able to retain

his position during time of the subsequent regime, since his activities

in support of the Shah had not been revealed prior to his departure

from Iran. It had allegedly only at this stage of the criminal

proceedings in Sweden become known to the Iranian authorities that he

had been a supporter of the Shah. For instance, two months before the

hearing before the Court of Appeal his "previous flat" in Iran had been

searched and photographs showing him receiving awards from the Shah had

been found.

In its opinion to the Court of Appeal the National Immigration

Board considered it impossible to state whether there were obstacles

to the enforcement of the applicant's deportation, as he had not,

before the Board itself, invoked any political reasons for allowing him

to stay in Sweden. The Board stated, however, that no severe punishment

could be expected in Iran for the offence of having assisted in

someone's escape from the country. Although active dissidents

supporting, for instance, the re-establishment of monarchy in Iran risk

such punishments, the applicant's particular position in the

administration of the Shah and the fact that he had received awards

from him could not be considered as entailing a risk that he would "get

into trouble" on his return to that country.

On 4 August 1993 the Court of Appeal upheld the deportation order

and the prohibition on return to Sweden.

On 10 September 1993 leave to appeal was refused by the Supreme

Court (Högsta domstolen).

On 28 July 1994 the applicant was informed that he would be

released on parole on 5 November 1994.

The applicant has submitted, inter alia, a statement by the

Norwegian office of the "Followers of Flag of freedom Organization of

Iran" ("FFO") according to which he sympathises with this movement

which is apparently banned in Iran. The statement further certifies

that he practises the Bahai religion which is also banned in Iran

because it is considered tantamount to apostasy.

The applicant has also submitted a copy of a purported indictment

issued by an Iranian prosecution authority on 21 April 1993. According

to the document, the applicant is suspected of having assisted in S.'s

escape from the country on 24 June 1990. At the time S. was suspected

of criminal behaviour in Iran and her passport issued in that country

had been seized.

The applicant has furthermore submitted a copy of a purported

indictment issued by an Iranian prosecution authority on 6 July 1993.

The document refers to findings during the search of the applicant's

"home" in Tehran from 22 May to 21 June 1993.

The applicant has finally submitted a copy of a purported

indictment issued by an Iranian prosecution authority on 17 June 1993

and referring to his activities within "FFO" and his "propaganda" for

the Bahai religion.

Relevant domestic law

1. Deportation on account of criminal behaviour

An alien can be deported on account of his criminal behaviour on

certain conditions laid down in Chapter 4, Sections 7 and 10 of the

Aliens Act. For instance, when considering whether to order an alien's

deportation the Court shall take into account his living and family

conditions, the duration of his stay in Sweden and his possible status

as a refugee.

An alien who is to be deported may never be sent to a country

where there is a 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). Neither may he be

sent to a country where he would risk being persecuted or to a country

where he would not be protected from being sent on to a country where

he would risk being persecuted (Section 2, subsection 1). He may,

however, be sent to such a country if he cannot be sent to any other

country and if he has shown, by committing a particular 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 (subsection 2).

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 3).

A prohibition on return may be issued either for a certain period

of time or indefinitely (Chapter 4, Section 14). An alien who has been

prohibited from returning to Sweden may, nevertheless, be granted a

permit to visit the country for extremely important purposes. For

particular reasons, such a permit may be granted at the request of

someone other than the alien himself (Section 15).

2. Asylum

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 invoke 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 group in society or

his religious or political convictions, and who cannot or does not wish

to avail himself of his home country's protection (Chapter 3,

Section 2).

COMPLAINTS

1. The applicant complains that, if expelled to Iran, he risks being

subjected to torture, imprisonment and possibly capital punishment

because of his political and religious opinions and, notably, his

political activities in favour of the previous regime of the Shah. He

invokes Article 2 of Protocol No. 4 to the Convention.

2. The applicant further complains that his deportation would, if

enforced, unjustifiably separate him from his wife S., who he claims

is a Swedish citizen. He does not, in this respect, invoke any

particular provision of the Convention.

THE LAW

1. The applicant alleges that, if returned to Iran, he will

risk being subjected to torture, imprisonment and possibly

capital punishment in view of his political and religious opinions and

political activities in favour of the previous regime of the Shah. He

invokes Article 2 of Protocol No. 4 (P4-2) to the Convention, which

guarantees the liberty of movement and freedom to choose one's

residence.

The Commission finds that the complaint falls to be examined

under 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 under Article 26 (Art. 26) of the

Convention it may only deal with an application provided, inter alia,

that all domestic remedies have been exhausted, according to the

generally recognised rules of international law. It observes that only

before the Court of Appeal did the applicant refer to his alleged

dissident activities and apostasy as grounds militating against his

deportation. However, even assuming that the applicant was unable to

make these allegations at an earlier stage and that he has therefore

complied with the requirement in Article 26 (Art. 26), the complaint

is nevertheless inadmissible for the following reasons.

The Commission recalls that Contracting States have the right to

control the entry, residence and expulsion of aliens (cf. 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 individual 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 expelled (ibid., p. 34, para. 103). A mere

possibility of ill-treatment is not itself sufficient to give rise to

a breach of Article 3 (Art. 3) (ibid., p. 37, para. 111).

The Commission observes that it was only at a late stage of the

criminal proceedings that he objected to his deportation on the grounds

that he risked being persecuted on account of his political and

religious views. However, nothing would have prevented him from

referring to those grounds already in an asylum request to the National

Immigration Board and, at any rate, in the criminal proceedings before

the District Court. The Commission therefore considers that there are

reasons to doubt the accuracy of his submissions and the documents

submitted.

The Commission thus concludes, on the evidence before it

concerning the applicant's background and the general situation in

Iran, that it has not been established that there are substantial

grounds for believing that he would be exposed to a real risk of being

subjected to treatment contrary to Article 3 (Art. 3) of the Convention

if expelled to that country.

It follows that this part of the application must be rejected as

being manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

2. The applicant further complains that his deportation would, if

enforced, unjustifiably separate him from his wife S., who is said to

be a Swedish citizen. He does not invoke any particular provision of

the Convention.

The Commission has considered this complaint under Article 8

(Art. 8) of the Convention which reads:

"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 or morals, or for the protection of the

rights and freedoms of others."

The Commission recalls that the Contracting States are in

principle free to control the entry, residence and expulsion of aliens.

Expulsion of a person from a country in which close members of his

family live may, however, amount to an unjustified interference with

his right to respect for his family life as guaranteed by Article 8

(Art. 8) of the Convention (e.g. Eur. Court H.R., Moustaquim judgment

of 18 February 1991, Series A no. 193, pp. 19 et seq., paras. 43 et

seq.).

Assuming that the applicant's wife S. is a citizen of Sweden and

that she resides in Sweden, the Commission considers that the

applicant's deportation to Iran would interfere with his right to

respect for his family life. It must next be examined whether this

interference would be justified under the terms of para. 2 of Article 8

(Art. 8-2). Under that paragraph such an interference must satisfy

three conditions: it must be "in accordance with the law", it must

pursue one or more of the aims enumerated in para. 2 and it must be

"necessary in a democratic society" for that aim or those aims. The

necessity criterion implies the existence of a pressing social need

and, in particular, requires that the measure must be proportionate to

the legitimate aim pursued (ibid., pp. 18 et seq., paras. 37 et seq.).

Regard should further be had to the margin of appreciation afforded to

the Contracting States (Eur. Court H.R., Berrehab judgment of

21 June 1988, Series A no. 138, pp. 15-16, para. 28).

It has not been contested that the deportation order was issued

"in accordance with the law". The Commission considers that the

enforcement of the deportation order would pursue a legitimate aim

under Article 8 para. 2 (Art. 8-2), namely the interest of public

safety and the prevention of crime and disorder. As regards the

question whether the interference was "necessary in a democratic

society" in pursuit of the said aims, the Commission observes the

gravity of the offences on account of which the applicant's deportation

was ordered. It also appears that he has previously committed serious

offences in or directed against Sweden. Finally, there is no

substantiation of the allegation that the applicant's wife would be

wanted in Iran and thus unable to follow him there.

Taking into account the margin of appreciation left to the

Contracting States, the Commission therefore concludes that the

enforcement of the applicant's deportation would be justified under

Article 8 para. 2 (Art. 8-2) of the Convention in that it can

reasonably be considered as "necessary in a democratic society" in

pursuance of the above-mentioned aims. Accordingly, the enforcement of

the deportation order would not violate Article 8 (Art. 8).

It follows that this part of the application must also 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 Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

Menu

NIKNAM v. SWEDEN

NIKNAM v. SWEDEN

LEXI