Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23780/94

by David MUSASIZI

against Sweden

The European Commission of Human Rights sitting in private on

6 July 1994, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

A. WEITZEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

G. RESS

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 2 February 1994

by David MUSASIZI against Sweden and registered on 30 March 1994 under

file No. 23780/94;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having regard to the observations submitted by the respondent

Government on 30 May 1994 and the observations in reply submitted by

the applicant on 1 July 1994;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a priest, is a citizen of Uganda, born in 1961.

He is currently in hiding in Sweden. He was initially represented by

Mr. Leif Rydberg, a lawyer at Bergshamra, and as from 6 June 1994 by

Ms. Louise Bjurwill, a lawyer in Stockholm.

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 was active in the banned party

Uganda Freedom Movement up to 1989, being responsible for exchanging

information between the youth branches. In October 1989 he was

allegedly arrested by security police and interrogated under torture

about his political activities. After two weeks he escaped. On

9 November 1989 he entered Kenya, where he was interrogated allegedly

under torture and subsequently convicted of espionage and sentenced to

nine months' imprisonment. After his release he entered Tanzania on

4 June 1990.

According to the Government, the applicant on 23 August 1990

contacted the Swedish Embassy in Tanzania, requesting a permanent

residence permit in Sweden. He alleged that one of his brothers had

been killed in 1987, that his family had been persecuted ever since and

that another brother was resident in Sweden.

On 19 November 1990 the applicant was granted a residence permit

in Tanzania until 15 May 1991.

On 22 November 1990 the applicant left Tanzania for Sweden,

stating that he feared further detention and torture in Uganda,

allegedly because Tanzania had entered into agreement with Uganda to

return asylum seekers.

According to the Government, the applicant, when entering Sweden

on 23 November 1990, announced himself as a tourist on his way to visit

his brother. His passport showed a Ugandan tax clearance stamp of

4 October 1989 and a Ugandan departure stamp of 9 November 1989.

On 26 November 1990 the applicant requested asylum or,

alternatively, a residence permit in Sweden. He referred to his

activities within the Uganda Freedom Movement.

On 18 June 1991 the National Immigration Board (statens

invandrarverk) rejected the applicant's request, having regard to the

stamps in his passport and questioning his fears of ill-treatment if

returned to Uganda.

The applicant appealed to the Aliens' Appeals Board

(utlänningsnämnden), stating inter alia that he had obtained the stamps

through assistance from the then Director of the Ugandan Security

Service and the then Minister of Foreign Affairs. These were both named

by the applicant. Their anti-governmental activities had, according to

the applicant, subsequently been revealed and both had been arrested.

On 26 November 1992 the applicant's appeal was rejected. The

Aliens' Appeals Board noted that he had given different accounts of his

treatment by the Ugandan authorities, his departure from that country

and his imprisonment in Kenya. Considering the circumstances as a

whole, the facts referred to by the applicant in support of his request

for asylum or a residence permit could not be considered credible.

On 8 December 1992 the applicant lodged a fresh request for a

residence permit, now also referring to suicidal thoughts. This request

was rejected on 9 December 1992 by the National Immigration Board.

On 26 October 1993 the applicant lodged a further request for a

residence permit. He invoked, inter alia, copies of three documents

issued by Ugandan authorities which he had allegedly obtained by

bribing certain officials at the Ugandan High Commission in Kenya in

1993. One document appears to have been issued by the Office of the

Army Commander of the National Resistance Army in January 1990 and

orders the elimination of the applicant by "excution squdron". [Note:

Should be "execution squadron".] A further document appears to have

been issued by the Directorate of Military Intelligence and Security

of the National Resistance Army in February 1990 and renews the order

to exterminate the applicant as a "security enemy". The third document,

marked "Top secret", appears to have been issued by the Ugandan High

Commission in Kenya on 6 August 1993 and refers to him, inter alia, as

a "suspect" returning to Uganda or Kenya.

The applicant further invoked an opinion of 17 June 1993

submitted by the Centre for Treatment of Torture Victims in Sweden,

according to which there were no reasons for questioning his torture

allegations, and a psychiatric report of 24 June 1993 submitted by Dr.

Per Borgå, a psychiatrist. According to the report, the applicant was

showing symptoms of a post-traumatic stress syndrome.

It appears from the psychiatric report that during his

examination the applicant had also claimed to have been, inter alia,

the adviser of a well-known dissident who had been murdered in 1987

under unclear circumstances.

In his request to the National Immigration Board the applicant

finally referred to his relationship with a woman in Sweden as from

October 1992.

On 29 October 1993 the applicant's request was rejected. The

Board did not question that the applicant had been subjected to

torture, but considered that the situation in Uganda was not such that

he would again risk similar treatment. No particular grounds for

granting him a residence permit on humanitarian grounds existed.

On 27 April 1994 the National Immigration Board decided to stay

the enforcement of the expulsion order regarding the applicant until

the Commission has examined his application.

In a further report of 22 June 1994 Dr. Borgå states that the

applicant continues to show symptoms "well in accordance with the

"post-traumatic stress syndrome". The current symptoms include, inter

alia, insomnia and nightmares.

Relevant domestic law

Under Chapter 3, Section 1 of the Swedish Aliens Act (utlännings-

lag 1989:529) 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

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, 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).

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, para. 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, para. 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). A refusal of entry issued by the

National Board of Immigration may be combined with a prohibition on

return for a specific period of time (Chapter 4, Section 14). In

refusing entry the Aliens' Appeals Board may also issue a prohibition

on return for a specific period of time (Chapter 7, Section 5,

subsection 2).

Under Chapter 7, Section 10, the National Board of Immigration

may review its decision if new circumstances have emerged or for any

other reason, provided it would not affect the alien negatively or be

irrelevant to him. A review may take place even if an appeal has been

lodged against the Board's decision. Once the Board has handed over the

file to the Aliens' Appeals Board it may only review its decision if

its opinion is requested by the Aliens' Appeals Board. The National

Board of Immigration may, for special reasons, refer a request for

asylum to the Aliens' Appeals Board together with its opinion in the

matter (Chapter 7, Section 11).

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, 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).

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

the alien may not 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 (Chapter 8,

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

country if he cannot be sent to any other 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).

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

1. The applicant complains under Article 3 of the Convention about

his impending expulsion to Uganda, fearing that he will be executed or

otherwise ill-treated on account of his alleged activities as a

political dissident if returned to that country. He alleges that other

members of the Uganda Freedom Movement have been executed, most

recently in August 1993. He also refers to a letter of August 1993 from

the National Army for Liberating Uganda as well as to a letter of

October 1993 from the commander of the Uganda Freedom Movement.

According to the letters, some of the members of these movements have

been killed. The last-mentioned letter further states that the

applicant's life would be endangered, should he be caught by Ugandan

Government troops.

Under Article 3 the applicant also refers to his present mental

suffering caused by his previous torture.

2. The applicant also alleges violations of Articles 2, 5, 8, 9, 10,

11 and 14 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 2 February 1994.

On 10 March 1994 the Commission examined the application and

decided not to apply Rule 36 of the Rules of Procedure.

The application was registered on 30 March 1994.

On 14 April 1994 the Commission decided to bring the application

to the notice of the Government and to invite them to submit written

observations on its admissibility and merits limited to the complaint

under Article 3 of the Convention. It further decided, pursuant to Rule

36 of the Commission's Rules of Procedure, to indicate to the

Government that it was desirable in the interests of the parties and

the proper conduct of the proceedings not to expel the applicant to

Uganda until the Commission had had an opportunity to examine the

application at the latest on 20 May 1994.

On 19 May 1994 the Commission decided to prolong the validity of

its indication under Rule 36 until 8 July 1994.

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

observations were submitted on 30 May 1994. The applicant's

observations in reply were submitted on 1 July 1994.

THE LAW

1. The applicant complains about his impending expulsion to Uganda,

stating that he fears execution or other ill-treatment on account of

his alleged activities as a political dissident if returned to that

country. He further refers to his current mental suffering caused by

his previous torture. 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."

The Government argue that the complaint is manifestly ill-founded

as a whole. They submit that the applicant has shown no substantial

grounds for believing that he would face a real risk of treatment

contrary to Article 3 (Art. 3), if returned to Uganda. As regards the

applicant's purported political background, the human rights situation

in Uganda has improved in recent years according to the Government's

sources. The regime which the applicant claims he opposed was

overthrown in 1986 and at present there are no signs of State-sponsored

persecution of political dissidents. The number of incidents involving

ill-treatment in detention has decreased and torture no longer seems

to occur in the prisons. Most dissidents have been released.

The Government further question the accuracy of the applicant's

account of his background, as well as the authenticity of the documents

allegedly obtained from the Ugandan High Commission in 1993. These

documents have not been submitted to the Swedish authorities in their

original version and in a number of other cases concerning Ugandan

asylum seekers similar documents have proven to be false.

The Government finally refute the applicant's assertion that his

expulsion to Uganda would violate Article 3 (Art. 3) in the light of

his present mental state.

As regards the current human rights situation in Uganda, the

applicant submits that several documented incidents of persecution have

involved the Ugandan State. Torture, illegal deprivation of liberty and

disappearances still take place. Political dissidents are also being

persecuted. Reference is made, in particular, to a report in May 1994

by Human Rights Africa.

The applicant questions the conclusion of the National

Immigration Board in its decision of 18 June 1991 that the fact that

he left Uganda lawfully reduces the credibility of his asylum claim.

At the time when the applicant left Uganda it was possible for a

Ugandan citizen to bribe himself out of the country. Moreover, the

applicant considers that he gave a detailed account of his previous

arrests, imprisonments and torture already in a police interview in

December 1990.

As regards the applicant's current mental health, he maintains

that the expulsion as such would already violate Article 3 (Art. 3) on

account of his mental state. Reference is made to the psychiatric

reports.

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., p. 34, para. 103). A mere possibility of

ill-treatment is not in itself sufficient to give rise to a breach of

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

The Commission considers that there are reasons to doubt the

accuracy of some of the information provided by the applicant. As noted

by the Aliens' Appeals Board, the applicant has not been consistent in

his account of his previous experiences to the Swedish authorities.

Moreover, it is noticeable that it was only at a very late stage that

he told the Swedish authorities that he had been the adviser of a well-

known dissident. The documents invoked by the applicant were also

presented at a late stage and their authenticity may be open to doubt.

The Commission concludes, on the evidence before it concerning

the applicant's purported background and the current situation in

Uganda, 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.

As regards the applicant's current mental state, the Commission

notes that the most recent psychiatric report has not been invoked by

him before the Swedish authorities. Nevertheless, the Commission finds

that no substantial grounds have been shown in support of the

applicant's assertion that his return to Uganda would violate Article

3 (Art. 3) of the Convention on account of his health.

It follows that the complaint under Article 3 (Art. 3) of the

Convention must be rejected as being manifestly ill-founded within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

2. The Commission has further examined the applicant's allegations

of violations of Articles 2, 5, 8, 9, 10, 11 and 14 (Art. 2, 5, 8, 9,

10, 11, 14) of the Convention. However, insofar as the matters

complained of have been substantiated and are within its competence,

the Commission finds that they do not disclose any appearance of a

violation of those provisions.

It follows that this part of the application must also be

rejected as being manifestly in accordance with 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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MUSASIZI v. SWEDEN

MUSASIZI v. SWEDEN

LEXI