Lexploria

Application No. 22408/93

by H.

against Sweden

The European Commission of Human Rights sitting in private on

5 September 1994, the following members being present:

MM. C.A. NØRGAARD, President

A. WEITZEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

H. DANELIUS

Mrs. G.H. THUNE

MM. F. MARTINEZ

C.L. ROZAKIS

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

I. BÉKÉS

J. MUCHA

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 1 August 1993 by

H. against Sweden and registered on 3 August 1993 under file

No. 22408/93;

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

29 September 1993 and 1 December 1993 and the observations in

reply submitted by the applicant on 8 and 28 November 1993;

- the parties' oral submissions at the hearing on 4 March 1994; -

the Commission's decision of 4 March 1994 to declare the

application admissible;

- the further observations on the merits submitted by the

respondent Government on 22 April, 9 May and 6 June 1994 and the

further observations submitted by the applicant on 24 May and

16 June 1994;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Syrian national born in 1965 and currently

resident at Härnösand, Sweden. He is a student. Before the Commission

he is represented by Ms. Lena Isaksson, a lawyer at Umeå.

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

summarised as follows.

Particular circumstances of the case

According to the applicant, he took up his military service in

the Syrian army in 1986. He was later appointed group commander and

became responsible for a tank. While serving in Lebanon he was

imprisoned on 23 August 1988 for having refused to attack a refugee

camp. He was detained in the Chtoura prison in Lebanon and subsequently

in the Tadmur military prison in Syria. During his detention he was

allegedly assaulted and tortured three to four times a week. He was

hung from his feet and flogged.

In June 1989 the applicant signed, allegedly against his will,

a declaration that he would always obey military orders. His military

service was further prolonged from 30 to 60 months. He was then

released from prison and re-instated as a commander of a tank.

In July 1989 the applicant, according to his submissions,

participated in a battle against General Aoun's forces in eastern

Beirut. During this battle he and his crew jumped from their tank in

order to seek protection. The applicant then broke his leg and was

captured by Lebanese troops and brought to a military hospital.

The applicant further states that on 15 August 1989 he was forced

to announce his desertion in a television broadcast by a station for

the Lebanese forces. On 15 January 1990 he was discharged from the

military hospital and was subsequently cared for by his uncle. On

14 March 1990 the Lebanese army demanded that the applicant fight on

its side. Refusing to do so, he left his uncle to stay with some other

relatives. On 25 May 1990 the applicant escaped from Lebanon with the

help of smugglers.

The applicant arrived in Sweden on 5 August 1990 and applied for

asylum on 8 August 1990, referring to the risk of his being persecuted

as a deserter in Syria.

On 6 September 1991 the National Immigration Board (statens

invandrarverk) rejected the request and ordered the applicant's

expulsion. The applicant was further prohibited from returning to

Sweden before 1 October 1993. The Board stated:

(translation)

"[The Board] does not consider the information submitted by the

applicant concerning his desertion as credible. It is not likely

that a person who has refused to participate in fighting and who

is suspected of having sympathies with the Palestinians would be

reinstated in his military rank upon release, be entrusted with

the command of a tank and would participate in the planning of

an attack. The other reasons invoked ... are not sufficient in

order to conclude that ... he should be granted asylum. Making

an overall assessment, the Board considers that [the applicant]

is not entitled to asylum in accordance with Chapter 3, Section

1 of the [1989] Aliens Act (utlänningslag 1989:529). Nor are

there any other reasons for granting him a residence permit."

On 16 October 1992 the Aliens Appeals Board (utlänningsnämnden)

upheld the National Immigration Board's decision, stating:

(translation)

"... What has been shown in the case is not such [information]

that [the applicant] could be considered a refugee in accordance

with Chapter 3, Section 2 [of the 1989 Aliens Act] or a deserter

or draft evader (krigsvägrare) in accordance with Chapter 3,

Section 3. Nor are there any such circumstances as prescribed in

Chapter 3, Section 1(3).

Nor are there any other reasons for granting [the applicant] a

residence permit."

The applicant lodged a further request for a residence permit,

invoking new evidence consisting of photographs of himself in uniform

allegedly taken during his army service, decisions to grant him leave

from the military, military forms on which he had ordered clothes, as

well as a statement by a military official that he had been granted

leave for a week due to illness.

On 26 January 1993 the National Immigration Board rejected the

request, considering that the political reasons invoked had in all

significant parts already been examined by the Aliens Appeals Board,

and finding that no humanitarian reasons had been shown for the

granting of the request.

In a further request for a residence permit of 10 March 1993 the

applicant invoked a document stating that he had been released from

prison on 24 June 1989, a mission order of 25 June 1989 and a warrant

of arrest dated 4 February 1993 according to which he was to be

arrested for having failed to report for military service.

The applicant has submitted a copy of his military book issued

on 21 January 1984 and according to which he was, on 21 February 1986,

considered medically fit for service. It includes the number of the

applicant's civil identity card issued in 1981. The applicant is

further said to have reported to his group between 20 August and

20 September, the year being illegible.

The decision to release the applicant of 24 June 1989 reads:

(translation into English from the translation into Swedish

provided by the Government)

"The Arab Republic of Syria

The Headquarters of the Army and Armed Forces

The Military Judiciary

The Office of the Military Prosecutor of Damascus

...

To: The Detention Centre of the Office of the Military

Prosecutor of Damascus

We have [today] decided to release Sergeant [the applicant], son

of (A.), no. ..., belonging to group no. ..., corps ..., who is

detained since 26 August 1988 and has been transferred to us from

the Military District of Damascus under no. ... of 1988.

For your knowledge and for the setting of his administrative and

financial conditions at zero.

...

Captain ...

Deputy Head of the Office of the Military Prosecutor of

Damascus"

The mission order issued on the applicant's release and dated

25 June 1989 reads:

(translation into English from the translation into Swedish

provided by the Government)

"The Arab Republic of Syria

The Headquarters of the Army and Armed Forces

The Department of the Military Police

The Central Military Prison

...

Mission order

Sergeant [the applicant], no. ..., belonging to group no.

..., corps ..., is ordered to go to the Central Military

Prison [today] to join his unit following his release ...

on 24 June 1989. ...

...

Director of the Central Military Prison"

The warrant of arrest of 4 February 1993 reads:

(translation into English from the translation into Swedish

provided by the Government)

The Headquarters of the Army and the Armed Forces

The Authority for General Military Service

The Military Service Authority of the County of Aleppo

The Enrolment Department of Al Bab

...

Order of immediate arrest

To the Police Department of the City

You are requested to order the arrest of [the applicant],

son of (A.) and (F.), born in 1965, residence number ...,

who has failed to report for service as a conscript, and to

bring him to the Department for enrolment. If he is not

found, minutes shall be drawn up ... so as to have him

handed over to the military judiciary. ...

...

(Illegible stamp)

Colonel ...

Head of the Enrolment Department of Al Bab ..."

On 28 February 1994 the applicant provided a further Swedish

translation of the warrant carried out by an authorised translator.

According to the applicant, this translation shows that he has deserted

from the Syrian army, for which reason he shall be arrested in order

to have him complete his military service. However, according to a

translation of 9 May 1994 from Swedish into English carried out by

another authorised translator and provided by the applicant, he is to

be apprehended and delivered to the military in order to perform his

military service.

The applicant's request for a residence permit was rejected by

the National Immigration Board on 11 March 1993. The Board considered

that in upholding the decision of 6 September 1991 the Aliens Appeals

Board had not questioned the credibility of the applicant's

submissions. The political reasons invoked before the National

Immigration Board had in all significant parts already been examined

by the Aliens Appeals Board. Moreover, no humanitarian reasons had been

shown for the granting of the applicant's request. The applicant's

request for a stay of enforcement of the expulsion order was also

refused.

On 10 May 1993 the applicant lodged yet a further request for a

residence permit, attaching extracts from the Syrian Military Penal

Code, according to which he would be sentenced to fifteen years'

imprisonment or death for his desertion, if returned.

On 19 May 1993 the National Immigration Board rejected the

applicant's further request for a residence permit, considering that

the circumstances invoked and the documents previously submitted had

already been examined by the Aliens Appeals Board and itself. The

applicant's request for stay of enforcement was also refused.

No appeal lay against the above-mentioned decisions of the

National Immigration Board of 1993.

On 6 August 1993 the National Immigration Board stayed the

enforcement of the expulsion order in view of the indication by the

President of the Commission (see below, "Proceedings before the

Commission").

In a report of 21 April 1994 investigators of the police

authority of Stockholm concluded that the applicant, as photographed

by them, was not the same person as that pictured in an army uniform

on photographs relied on by the applicant before the National

Immigration Board and the Commission in support of his purported

desertion. The investigators found the uniformed person to be older and

also noted differences between the applicant and that person relating

to their headlines and chins, the shapes of their faces, their right

ears and their eye brows, as well as to the arm on which they were

carrying their respective watches. Moreover, it could not be confirmed

that all photographs invoked by the applicant pictured the same person.

In a report of 19 April 1994 Dr. Erik Edston, a forensic

specialist, concludes that the applicant's scars may have been caused

by the alleged torture and assaults. The character and location of the

injuries have, however, been "unspecified" and they may therefore also

have been caused in other ways. The X-ray examination of the

applicant's right leg alleged to have been broken in connection with

the applicant's desertion has not shown any sign of a previous

fracture.

In a report of 18 April 1994 Mr. Marcello Ferrada-Noli, a

psychologist, concludes that the applicant is suffering from a

post-traumatic stress syndrome involving suicidal plans, insomnia and

nightmares.

In a report of 19 April 1994, Dr. Søndergaard, a psychiatrist,

concludes that the applicant is suffering from insomnia and suicidal

plans but that he has good emotional contact with others.

In a report of 21 April 1994 Dr. Sten W. Jakobsson, Chief

Physician at the Swedish Centre for Torture Victims, concludes that the

applicant is credible, that he has been subjected to traumatic

experiences comparable with torture and that he has suicidal thoughts

relating to a possible expulsion to Syria. The report was based on the

above-mentioned reports by Drs. Edston and Søndergaard and

Mr. Ferrada-Noli.

The applicant alleges that his eldest brother was arrested in

1987 on account of his activities in the Socialist Union of Syria. His

fate is allegedly unknown.

The applicant's mother is a Lebanese citizen and a Christian.

Relevant domestic law

Under Chapter 3, Section 1 an alien may be granted asylum because

he is a refugee, a deserter or a draft evader or, without being a

refugee, if he does not wish to return to his home country, because of

the political situation there and provided he can put forward 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, belonging to 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).

The term "deserter or draft evader" refers to an alien who has

left a place of war or an alien who has escaped from his country of

origin or needs to stay in Sweden in order to avoid forthcoming

military service (Chapter 3, Section 3).

An alien as referred to in Chapter 3, Section 1, is entitled to

asylum. Asylum may, however, be refused inter alia if, in the case of

an alien falling under Chapter 3, Section 1, no. 3, there are special

grounds for not granting asylum (Chapter 3, Section 4).

An alien may be refused entry into Sweden if he lacks a visa,

residence permit or other permit required for entry, residence or

employment in Sweden (Chapter 4, Section 1, no. 2). When considering

whether to refuse an alien entry or to expel him it must be examined

whether he, pursuant to Chapter 8, Sections 1-4, can be returned to

a particular country or whether there are other special obstacles to

the enforcement of such a decision (Chapter 4, Section 12).

Under Chapter 7, Section 4, the National Immigration Board's

decision in an asylum matter may be appealed to the Aliens Appeals

Board.

An alien who has been refused entry or who is to be expelled may

never be conveyed to a country where there is firm reason to believe

that he would be in danger of being subjected to capital or corporal

punishment or torture, nor 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).

When a refusal of entry or expulsion order is put into effect,

the alien may not be sent to a country where he would risk being

persecuted, nor to a country where he would not be protected from being

sent on to a country where he would risk being persecuted (Chapter 8,

Section 2, subsection 1). An alien may, however, be sent to a country

as referred to in subsection 1 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. This does not apply if the persecution

threatening him in the other country 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).

If the enforcement is not subject to any obstacles under, inter

alia, Chapter 8, Sections 1 and 2, an alien who has been refused entry

or who is to be expelled is to be sent to his country of origin or, if

possible, to the country from which he came to Sweden. If the decision

cannot be put into effect in the manner indicated in subsection 1 or

there are other special grounds for doing so, the alien may be sent to

some other country instead (Chapter 8, Section 5).

A request for a residence permit lodged by an alien, who is to

be refused entry or expelled by a decision which has acquired legal

force, may only be granted provided the request is based on new

circumstances and the applicant is either entitled to asylum or there

are weighty humanitarian reasons for allowing him to stay in Sweden

(Chapter 2, Section 5, subsection 3).

When considering a request for a residence permit lodged by an

alien to be expelled according to a decision which has acquired legal

force, the National Board of Immigration (and in certain cases also the

Government) may stay execution of that decision. For particular reasons

the Board may also otherwise stay execution (Chapter 8, Section 10).

If the enforcing authority finds that enforcement cannot be

carried out or that further information is needed, the authority is to

notify the National Board of Immigration accordingly. In such a case,

the Board may decide on the question of enforcement or take such other

measures as are necessary (Chapter 8, Section 13).

COMPLAINTS

The applicant alleges that, if returned to Syria, he would be

sentenced either to fifteen years' imprisonment or to death for

desertion. He invokes Article 3 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 1 August 1993 and registered

on 3 August 1993.

On 3 August the President of 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 interests of the

parties and the proper conduct of the proceedings not to return the

applicant to Syria until the Commission had had an opportunity to

examine the application.

The President further decided, pursuant to Rule 34 para. 3 and

Rule 48 para. 2(b), to bring the application to the notice of the

respondent Government and to invite them to submit written observations

on its admissibility and merits.

On 8 September 1993 the Commission prolonged the indication under

Rule 36 until 22 October 1993.

Following an extension of the time-limit the Government's

observations were submitted on 29 September 1993. Supplementary

observations were submitted on 1 December 1993.

On 21 October 1993 the Commission prolonged its indication under

Rule 36 until 10 December 1993.

Following an extension of the time-limit the applicant's

observations in reply were submitted on 8 November 1993. Supplementary

observations were submitted by him on 28 November 1993.

On 9 December 1993 the Commission decided to invite the parties

to a hearing on the admissibility and merits of the application. It

further prolonged its indication under Rule 36 until further notice.

On 21 January 1994 the applicant was granted legal aid.

At the hearing, which was held on 4 March 1994, the parties were

represented as follows:

The Government

Mr. Carl Henrik EHRENKRONA Assistant Under-Secretary for

Legal Affairs, Ministry for

Foreign Affairs, Agent

Mrs. Ulrika DACKEBY First Secretary, Ministry of

Culture and Immigration,

Adviser The applicant

Ms. Lena ISAKSSON Counsel

Mr. Bo JOHANSSON Assistant counsel

On 4 March 1994 the Commission declared the application

admissible and invited the parties to submit further observations on

the merits of the case.

The Government submitted further observations on 22 April, 9 May

and 6 June 1994. The applicant's further observations were submitted

on 24 May and 16 June 1994.

THE LAW

The applicant alleges that, if returned to Syria, he would be

sentenced to death or at least fifteen years' imprisonment for

desertion. He 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."

In their observations prior to and at the Commission's hearing

the Government contended that the application was manifestly

ill-founded, as the applicant had not shown any substantial grounds

that he would run a real risk of being subjected to treatment contrary

to Article 3 (art. 3), if returned to Syria. The Government questioned

the information submitted by the applicant and, in particular, whether

he had at all performed military service in that country. They also

questioned his alleged torture and desertion, as well as the

authenticity of the military documents referred to.

Even assuming that the applicant is a deserter, the Government

considered that there is no indication that his desertion entailed

aggravating circumstances, such as deserting to a country with which

Syria was, or is, at war. Accordingly, under the penal provision

applicable to the applicant's offence he would only be sentenced to a

maximum of ten or fifteen years' imprisonment depending on the

circumstances. The Government did not deny the existence of

ill-treatment in prisons in Syria, but found no indication that the

applicant would be subjected to such treatment on account of his

alleged desertion.

In his submissions up to and at the Commission's hearing the

applicant contended that he was a deserter and referred to various

documents allegedly showing that he had been enrolled in the Syrian

army. He further maintained that the applicable penal provision

prescribes capital punishment for desertion "into the hands of the

enemy". Even if his desertion would fall outside the scope of that

provision he would, in any event, face at least a fifteen year prison

sentence, during which he would risk further torture. Reference was

made to reports by human rights organisations according to which

torture is widespread in Syrian prisons and, notably, in the Tadmur

military prison.

In their further observations on the merits the Government invoke

the report of 21 April 1994 of the police authority of Stockholm

concluding that the applicant is not the same person as that pictured

in a Syrian army uniform in photographs relied on by him before the

National Immigration Board and the Commission in support of his

purported desertion. In the Government's view this conclusion seriously

undermines the credibility of the applicant's account of his background

as well as the medical and psychiatric evidence invoked by the

applicant in his further observations on the merits.

The Government also continue to question the authenticity of the

warrant of arrest of 4 February 1993. They emphasise, in particular,

that the sender of the warrant is supposed to have been sent by a

military authority in Al Bab to the police authority in the same

district, and that the applicant has not satisfactorily explained how

he obtained the original of the document. Moreover, contrary to the

other purported military decisions invoked by the applicant, the

warrant does not indicate the applicant's purported military rank of

sergeant. In any event, the document refers to a draft evader rather

than to a deserter.

The Government further question the applicant's account as a

deserter in view of the fact that he has obtained a copy of his

military book, as according to Syrian practice this document should

have been in the possession of the military during his service and only

subsequently returned to him. In any case, the copy submitted by the

applicant is not complete.

Even assuming the applicant's purported background as a deserter

to be correct, the Government submit that due to the de facto political

situation in Lebanon the applicant's desertion in that country would

fall within Syrian amnesty laws. In any case, it is reasonable to

assume that mainly political detainees in Syrian prisons are being

subjected to severe ill-treatment.

In his further observations on the merits the applicant recalls

that the Swedish immigration authorities have never questioned his

identity. He further challenges the conclusion of the police report of

21 April 1994, it being based merely on a comparison of photographs,

whilst the photographs relied on by him should have been compared with

him in person. Moreover, his new hair style has misled the

investigators to believe that his hair line is not the same as that of

the person on the photographs. The applicant further refers to the

expert evidence finding his allegations of previous torture credible.

He also invokes a photograph allegedly taken in 1989 and picturing his

right leg in a cast. He finally invokes a copy of his Syrian civil

identity card and submits that the original is still being kept by the

Syrian military, as he has not completed his service.

The Commission recalls its decision of 4 March 1994 to declare

the application admissible. It further recalls Article 29 (art. 29) of

the Convention which provides as follows:

"After it has accepted a petition submitted under

Article 25 (art. 25), the Commission may nevertheless

decide by a majority of two-thirds of its members to reject

the petition if, in the course of its examination, it finds

that the existence of one of the grounds for non-acceptance

provided for in Article 27 (art. 27) has been established.

In such a case, the decision shall be communicated to the

parties."

The Commission considers, in the light of the parties' further

observations on the merits of the case, that there are reasons to doubt

the accuracy of the applicant's claim that he is a deserter. It

particularly takes note of the expert report of 21 April 1994

concluding that he is not the same person as that person or those

persons pictured in an army uniform on the photographs invoked in

support of his account of his purported background. This conclusion

also negatively affects the credibility of his submissions to the

Swedish authorities and the Commission, and the authenticity of the

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H. v. SWEDEN

H. v. SWEDEN

LEXI