AS TO THE ADMISSIBILITY OF

                      Application No. 23511/94

                      by H. G.

                      against Sweden

      The European Commission of Human Rights sitting in private on

19 May 1994, the following members being present:

           MM.   C.A. NØRGAARD, President

                 S. TRECHSEL

                 A. WEITZEL

                 F. ERMACORA

                 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

           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 17 February 1994 by

H. G against Sweden and registered on 18 February 1994 under file No.

23511/94;

      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 18 March 1994 and the observations in reply submitted by

the applicant on 7 April 1994;

      Having deliberated;

      Decides as follows:

THE FACTS

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

summarised as follows.

      The applicant is an Iranian citizen, born in 1955 and currently

residing in Sweden. Before the Commission he is represented by Mr. Per

Stadig, a lawyer practising in Stockholm.

A.    The particular circumstances of the case

      According to the applicant's account of the events preceding his

arrival in Sweden he grew up in Ghaemshahr, which is situated

approximately 250 kilometres north-east of Tehran. He claims to have been

sympathising with the Mujahedin movement since 1981. That year he

participated in a demonstration during which he was arrested and

subsequently imprisoned for four months. During this period he was

subjected to interrogation and allegedly burned with a cigarette on one

arm by the revolutionary guardsmen. He denied, however, having

participated in the demonstration and claimed that he was on the spot out

of curiosity. He was released due to lack of evidence.

      In 1982 the applicant married. Together with his brother-in-law he

allegedly continued to work for the Mujahedin movement by distributing

newsletters to members of the movement. His brother-in-law had a high

position within the Mujahedin. In March 1985 the applicant and his

brother-in-law were arrested by revolutionary guardsmen while

distributing newsletters. The brother-in-law escaped and went to Sweden

where he was granted asylum in 1985. The applicant was detained in Iran

for one month. During this period he claims to have been interrogated and

tortured. The revolutionary guardsmen also searched his home and

questioned and ill-treated his wife, who did not know anything about the

applicant's political activities. The applicant was sentenced to one

year's imprisonment. He was released on bail in April 1986. His mother

had put up security and he himself submitted a guarantee that he would

not continue with his political activities. He was to report to the

authorities once a week.

      When he was released the applicant was at first unemployed. After

one year he opened a store where he sold parts for sewing machines. He

maintains to have been harassed by the authorities during this period.

In 1987 he was contacted by his brother-in-law from Sweden. He wanted him

to copy and distribute newsletters which were to be sent to him from

Sweden. The applicant agreed to these activities. In 1989 the applicant

applied for business visas to Sweden but these were rejected on 26 May,

21 June and 25 August 1989.

      In September or October 1989 the activities of the applicant were

revealed as his mail from Sweden was opened. A friend warned him of this

and he fled and kept in hiding. He was aided by a relative. The applicant

subsequently fled with his family to Tehran. He managed to leave Tehran

legally with the assistance of one of his relatives and a smuggler. He

left the airport of Tehran on 25 January 1990 with a valid passport and

a visa for Poland. A smuggler had, with the help of bribes, managed to

get his name off the  "black list". He flew to Warsaw via Moscow. He

stayed in Warsaw for five days and then went by car to Swinoujcie.

Another smuggler helped him on board the boat to Sweden and bribed the

crew. The applicant chose to go to Sweden because his brother-in-law

lives there.

      The applicant applied to the National Immigration Board (Statens

Invandrarverk), hereinafter "the SIV", for asylum with reference to the

above facts. He subsequently submitted that he continued to sympathise

with the Mujahedin in Sweden. He participated in demonstrations,

collected money and sold books for the movement. He was active in a

committee in Gothenburg which had criticised the Iranian regime in

connection with an earthquake in Iran. His picture was in the papers in

connection with the demonstrations. Therefore he maintained, inter alia,

that he was risking execution or at least 20 years' imprisonment if he

were deported to Iran.

      On 24 July 1991 the SIV rejected the applicant's request for asylum.

In its decision, the SIV recalled that the applicant had left the airport

of Tehran legally with a valid passport. Considering what was known about

the applicable rules and inspections when leaving the airport of Tehran

the SIV concluded that credit could not be given to the applicant's

information in this respect. For the same reason his information on how,

with the help of bribes, he was able to get his name off the "black list"

when leaving the country, was not credible. The SIV also found that there

were grounds for questioning the applicant's statement about his

political activities. The assessment of the SIV was that the information

submitted by the applicant and what was otherwise known, was not such

that credit could be given to his allegation that he was in need of

asylum as a refugee according to Chapter 3, Section 1, subsection 1 of

the Aliens Act (utlänningslagen).

      The applicant appealed against this decision to the Aliens Appeals

Board (utlänningsnämnden). Before the Board the applicant stated that

there had been no problems at the airport of Tehran thanks to a relative

of his who had taken care of everything. The applicant submitted that he

had never brought forward that his name was on the black list. A relative

of his and a smuggler were with him at the airport and had helped him

through the checkpoints there. The revolutionary committee in Iran had

confiscated his shop in Tehran, as an Iranian who had been expelled from

Sweden had reported him to the authorities. The applicant further stated

that on 20 June 1991 he had participated in a demonstration in Sweden

organised by the Mujahedin against the Iranian regime and he submitted

photographs of this occasion showing that he took part in the

demonstration. The applicant maintained that this demonstration was sure

to have been noted by the Iranian Embassy. Finally, he maintained that

there were humanitarian grounds for his application and stated that his

wife and children were planning to leave Tehran in order to join him in

Sweden and he submitted a photo showing injuries to his wife's legs

caused by the revolutionary guardsmen.

      On 9 June 1992 the Aliens Appeals Board rejected the applicant's

appeal. The Board shared the opinion of the SIV, i.e. the Board did not

find the information submitted trustworthy. The applicant could not be

regarded as a refugee within the meaning of the Aliens Act, nor could he

be regarded as a so-called de facto refugee. The Board furthermore

referred to the fact that the applicant's wife and minor children were

still in Iran.

      In a new application lodged with the SIV on 22 April 1993, the

applicant submitted that his wife and two children had now arrived in

Sweden and requested asylum. The applicant also requested the SIV to stay

the enforcement of the expulsion order until his family's applications

had been dealt with. The SIV decided on 23 April 1993 not to grant his

requests.

      Another request for a residence permit and a decision to stay the

enforcement of the deportation was lodged with the SIV on 7 June 1993.

The applicant once again referred to his family's applications. The SIV

rejected the applicant's new requests on 8 June 1993.

      On 9 June 1993 the applicant filed another request with the SIV and

stated that there was information exposed in the case of his wife's

request for asylum which spoke strongly in favour of granting him asylum.

On 11 June 1993 the SIV rejected both the request for staying the

enforcement of the expulsion order and the application for asylum.

      On 27 December 1993 the applicant was detained by the police of

Växjö for enforcement of the expulsion order. The applicant filed a new

request for asylum with the SIV and maintained once again that his wife

and children were in Sweden with applications for asylum, now pending

before the Aliens Appeals Board. He further recalled that he and his wife

had been working for the Mujahedin movement in Sweden and that a refugee

espionage network which operated out of the Iranian Embassy in Stockholm

was sure to affect him and his wife. The SIV rejected the applicant's

requests on 28 December 1993. Some of the information submitted was

already known to the SIV and the new circumstances were not considered

sufficient for granting him a residence permit or for staying the

expulsion order.

      Yet another request was filed on 31 December 1993. The applicant was

still detained and had now refused to eat for several days. He was

convinced that his activities for the Mujahedin had been revealed by two

Iranians who had been convicted of or charged with espionage. He

submitted a written statement from the Muslim Student Society indicating

that he had participated in demonstrations against the Iranian regime and

that he would be executed if he went back to Iran. The SIV decided on 4

January 1994 to stay the expulsion order until further investigations

could be made.

      The incidents of espionage to which the applicant referred were in

short as follows. Officials of the Iranian Embassy with connections to

the Iranian Intelligence Service had been active in Sweden to obtain

information about Iranian refugees and members of the resistance

movement. In December 1993 and January 1994 two persons were sentenced

to one and a half years' imprisonment respectively for unlawful

activities with the purpose of getting information about Iranian refugees

in Sweden. One of these individuals, a man from Iran who had been granted

a permanent residence permit in Sweden as a refugee had been collecting

information inter alia by joining and getting a leading position in the

Mujahedin movement in Stockholm. The other person, a woman from Iran who

had become a Swedish citizen since the summer of 1993, contacted members

and sympathisers of the Mujahedin movement  and thus obtained information

which she submitted to the embassy officials. The judgment concerning the

latter person has been appealed against and this case was, in April 1994,

still pending before the Svea Court of Appeal (Svea hovrätt).

      After the decision to stay the enforcement of the expulsion order,

the SIV, according to the Government, contacted the Swedish Security

Police concerning the refugee espionage business with a view to

investigating whether the applicant appeared as one of the targets for

the unlawful intelligence activities which had been carried out. However,

no reference to the applicant was found in the police investigation. On

16 February 1994 the SIV rejected the applicant's request for a residence

permit. The investigation was now completed and the SIV concluded that

the information submitted by the applicant did not constitute grounds for

granting asylum and there were no other exceptional grounds of a

humanitarian nature for granting a residence permit.

      Following still another request lodged by the applicant in which he

referred to the Commission's indication under Rule 36 of its Rules of

Procedure, SIV decided, on 18 February 1994, to stop the enforcement of

the expulsion order since further investigations were deemed necessary.

The applicant was released from detention.

      As regards the applicant's wife and children the SIV rejected their

requests for residence permits on 17 July 1993. The Aliens Appeals Board

rejected their appeal on 18 March 1994. They are to be expelled together

with the applicant.

B.    Relevant domestic law

      Under Chapter 2, Section 5, subsection 3, of the Aliens Act 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 if the request is based on new circumstances and the applicant

is entitled to asylum and there are weighty humanitarian reasons for

allowing him to stay in Sweden.

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

he is a refugee (para. 2) 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

(para. 3). 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 social group or his religious or

political convictions, and who cannot or does not wish, on account of his

fear, 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

Immigration Board may be combined with a prohibition on return for a

specific period of time (Chapter 4, Section 14). In reviewing a question

of refusal of entry or expulsion, 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 Immigration Board 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 to the

Aliens Appeals Board has been lodged against the decision. Once the

National Immigration Board has transmitted the file to the Aliens Appeals

Board it may only review its decision if its opinion is requested by the

Aliens Appeals Board (Chapter 7, Section 10). The National Immigration

Board or the Aliens Appeals Board may refer a case to the Government

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 county 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 particularly serious 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. 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 2).

      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).

      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 Immigration Board (and in certain cases the Government too)

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 Immigration Board 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 complains that his expulsion to Iran would violate

Article 3 of the Convention. He claims that he risks persecution,

imprisonment or even execution in that country on account of his

political activities.

PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced on 17 February 1994 and registered

on 18 February 1994.

      On 18 February 1994 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 interest of the

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

applicant to Iran 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 the

admissibility and merits.

      On 10 March 1994 the Commission prolonged the President's indication

under Rule 36 until 15 April 1994.

      The Government's observations were submitted on 18 March 1994 and

the applicant's observations in reply were submitted on 7 April 1994.

      On 14 April 1994 the Commission prolonged its indication under Rule

36 until 20 May 1994.

THE LAW

      The applicant complains that, if returned to Iran, he risks

persecution in view of his political activities. He invokes Article 3

(Art. 3) of the Convention which reads:

      "No one shall be subjected to torture or to inhuman or degrading

      treatment or punishment."

      The Government do not raise any objections in respect of the six

months' rule set out in Article 26 (Art. 26) of the Convention and leave

it to the Commission to decide whether domestic remedies have been

exhausted, having regard to the fact that it is always possible to lodge

a new request for a residence permit with the National Immigration Board

which must deal with it, provided there are new circumstances which could

call for a different decision.

      As regards the substance of the application the Government point out

that an alien's right to enter and reside in a particular country is not

as such guaranteed by the Convention, nor is the right to political

asylum. However, the Government acknowledge that where substantial

grounds have been shown for believing that the person could, if

extradited or expelled, face a real risk of being subjected to treatment

contrary to Article 3 (Art. 3) in the country of destination the

responsibility therefor would lie with the country extraditing or

expelling the alien concerned.

      The Government submit that the provisions on enforcement in the

Swedish Aliens Act reflect almost exactly the same principles as have

been outlined by the European Court of Human Rights when applying Article

3 (Art. 3) to extradition cases or to cases concerning expulsion. Under

Chapter 8, Section 1 of the Aliens Act an alien refused entry or expelled

may never be sent to a country where there are substantial grounds to

believe that he would be in danger of suffering capital or corporal

punishment or of being subjected to torture, nor to a country where he

is not protected from being sent to a country where he would be in such

danger. Thus, the Swedish immigration authorities have applied almost the

same test as the Commission is carrying out when applying Article 3

(Art. 3) to the present case.

      In the circumstances of the present case the Government rely on and

agree with the opinions of the Swedish immigration authorities and the

reasons they have invoked. Thus, the Government maintain that no

substantial grounds have been shown for believing that the applicant

would face a real risk of treatment contrary to Article 3 (Art. 3) of the

Convention if expelled to Iran.

      The applicant maintains that the facts of the case disclose

substantial grounds for believing that he would be subjected to treatment

contrary to Article 3 (Art. 3) of the Convention if returned to Iran. He

has been arrested, imprisoned and ill-treated on several occasions due

to his political activities and it is undisputed that he and his family

have been harassed by the Iranian authorities because of this.

      The applicant furthermore maintains that the Swedish Government have

totally misinterpreted the political situation in Iran. According to

information from the United Nations, almost 20,000 persons are

incarcerated today in Iran for political reasons. Accordingly, there is

every reason to believe that the facts as submitted by the applicant

disclose reason to fear treatment contrary to Article 3 (Art. 3) of the

Convention.

      As regards Article 26 (Art. 26) of the Convention the Commission

finds that the applicant has, in the circumstances of the case, fulfilled

the requirements of the exhaustion of domestic remedies.

      As regards the applicant's complaint made under Article 3

(Art. 3) of the Convention the Commission recalls that the 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 (ibid., p. 37, para. 111).

      When considering this issue the Commission attaches importance to

the fact that the Swedish authorities appear to have gained considerable

experience in evaluating claims of the present nature by virtue of the

large number of Iranian asylum seekers in Sweden. It notes that residence

permits have in fact been granted in numerous cases and that the

authorities are obliged to consider essentially the same factors as are

relevant to the Convention organs' assessment under Article 3 (Art. 3)

of the Convention. The Commission observes, in particular, that Chapter

8, Section 1, of the Aliens Act also 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 he would be in danger of being subjected to

capital or corporal punishment, or torture, in that country (cf. No.

20981/92, Dec. 8.4.93 and No. 21808/93, Dec. 8.9.93, to be published in

D.R. 75).

      The facts of the present case disclose that the decision to expel

the applicant was made after careful examination of his case during which

the applicant, assisted by counsel, had the opportunity to submit what

in his opinion was of importance to the case. Having regard to the

outcome thereof the Commission shares the Government's doubts as to the

credibility of the applicant's story.

      In these circumstances the Commission concludes, on the evidence

before it concerning the applicant's personal situation and the general

situation in Iran today, that he has failed to show that the Swedish

authorities would expose him to a serious risk of treatment contrary to

Article 3 (Art. 3) of the Convention should they expel him to Iran (cf.

also No. 16381/90, Dec. 14.10.91 and No. 23406/94, Dec. 14.4.94, both

unpublished).

      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, unanimously,

      DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission                 President of the Commission

      (H.C. KRÜGER)                                (C.A. NØRGAARD)