Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23752/94

by Mohammad ROUDI

against Sweden

The European Commission of Human Rights sitting in private

on 14 April 1994, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

A. WEITZEL

F. ERMACORA

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 10 January

1994 by Mohammad ROUDI against Sweden and registered on 23 March

1994 under file No. 23752/94;

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 1945. He is

currently resident in Stockholm and is represented by Mr. Leif

Rydberg, a lawyer in Bergshamra.

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

be summarised as follows.

The applicant entered Sweden on 26 November 1989, using a

false passport. In his request for asylum, alternatively a

residence permit, he stated having left Iran with his own

passport, which he had obtained from Turkmenians who had bribed

officials. The smuggler in charge of the applicant's escape from

Iran was said to have handed in the applicant's passport to the

airport authorities in Teheran for control before his departure

and the applicant himself had picked it up. The applicant further

stated that he had not been politically active since 1979, when

he had participated in clashes between Turkmenians and members

of the Revolutionary Guard. Following the revolution all his

property had allegedly been confiscated and he had been

imprisoned for his activities in support of the Turkmenians.

During six months, every third day, he had been brought before

a Revolutionary Committee and had been questioned, assaulted and

tortured, particularly by simulated executions. In 1983 he had

been informed that he had been sentenced to fifteen years'

imprisonment. After three years in prison he had been granted his

first leave. During his last leave on 23 November 1989 he had

escaped from Iran. None of his relatives had ever been arrested

or charged.

On 18 October 1990 the National Immigration Board (statens

invandrarverk) rejected the applicant's request, having regard

to the fact that, while imprisoned, the applicant had been

granted a passport and had thus been able to leave Iran legally.

The Board considered that, in view of the extremely careful

control of departing passengers at the Teheran airport, the

applicant's allegation that he had been sentenced to a lengthy

term of imprisonment lacked credibility. Neither was his

assertion that he had been granted a passport while in prison

considered credible.

In his appeal to the Aliens Appeals Board

(utlänningsnämnden) of December 1990 the applicant submitted that

the passport with which he had left Iran had not necessarily been

a valid one established in his name. He had never verified that

it carried his name. Even if the passport had been valid, it is

possible to bribe airport officials, which his friends might have

done in his case. Moreover, according to a letter from his

mother, his brother had allegedly been imprisoned in April 1990

and would remain in prison until the applicant returns to Iran.

His cousin had allegedly been executed in June 1990. The

applicant's Turkmenian friends had allegedly received visits by

an Islamic Committee searching for the applicant. In addition,

Government officials had carried out a search in his mother's

home and found pictures of the Shah belonging to the applicant.

The applicant's wife had been arrested in December 1990 and

detained for a short period of time, but had been released after

having transferred the rights to a friend's property as a

"security" to the authorities.

The applicant later supplemented his appeal by referring to

a copy of a document dated 27 August 1991 which was said to be

a summons addressed to his wife ordering her to attend an

interrogation. Having appeared for interrogation, the wife had

allegedly again been arrested and detained for a short period of

time.

On 21 October 1992 the applicant's appeal to the Aliens

Appeals Board was rejected. The Aliens Appeals Board considered

that the applicant's account of his alleged imprisonment, the

alleged arrests of his wife and his departure from Iran was not

credible, in particular his assertion that he had never verified

the accuracy of his passport. The Board noted in this respect

that he had stated to the Swedish immigration police that he had

picked up the passport himself from the authorities at the

Teheran airport.

The Aliens Appeals Board also had regard to interrogations

with the applicant's wife and daughter conducted by the Swedish

Embassy in Teheran. The wife had stated that the applicant had

been granted leave once every four months and had been serving

his sentence in the prison of Gombad. The daughter had first

stated that the applicant had never been granted leave, but later

changed her story. She had further stated that the applicant had

been imprisoned in Gombad, Shiraz and Teheran.

The Aliens Appeals Board concluded that the various accounts of

the alleged arrests of the applicant's wife were inconsistent.

As the applicant had been staying in Sweden for more than

18 months, a special rule applied according to which he could

have been granted a residence permit on account of particular

ties to Sweden. However, considering that the applicant had a

wife and five children in Iran, the Aliens Appeals Board

considered his ties to that country to outweigh his ties to

Sweden.

The applicant divorced while in Sweden, allegedly in an

attempt to relieve his wife from further arrests.

In June 1993 the applicant lodged a further request for

asylum, and an alternative request for a residence permit. He

submitted that as of December 1990 he had been a member of the

"Iran Paad Followers of the Iranian Monarchy", a movement of

Iranians in exile attempting to re-establish the monarchy in

Iran. In order to qualify for membership the applicant had had

to prove that he had been a dissident during the present Iranian

regime.

In his request of June 1993 the applicant further referred

to a forensic report of 13 April 1993 by the Centre for Torture

Victims, showing that he has scars on his face, neck, left arm

and hand, torso and legs. The report concludes that the scars may

well have occurred as a result of beatings with a dull instrument

and that nothing contradicting the applicant's account of his

torture experiences has been found. The applicant further

referred to a psychiatric report of 27 April 1993 by the Centre

for Torture Victims. This report finds nothing contradicting the

applicant's account of his background.

In his request of June 1993 the applicant finally stated

that he had divorced his wife and that he was cohabiting with a

Swedish woman. Thus, his ties to Sweden could be considered

stronger than those to Iran.

The applicant's request was rejected on 17 June 1993. The

Board considered that some of the circumstances invoked had

already been examined. The new circumstances invoked were not

considered such as to make the applicant eligible for asylum, nor

were there humanitarian reasons warranting the granting of a

residence permit. As to the applicant's ties to Sweden, the Board

referred to the preparatory works to the Aliens Act, according

to which a residence permit shall be refused if such ties are

invoked at the enforcement stage.

On 24 June 1993 the National Immigration Board rejected the

applicant's further request for a residence permit, considering

that no new circumstances had been shown.

COMPLAINTS

The applicant complains about his impending expulsion to

Iran, fearing further imprisonment, torture and capital

punishment if returned to that country. He refers to the alleged

part of his prison sentence which is yet to be served and fears

a harsh punishment in view of his allegedly unlawful escape

during his leave from prison. He invokes no particular provision

of the Convention or its Protocols.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 10 January 1994.

On 21 January 1994 the Commission examined the application

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

The application was registered on 23 March 1994

THE LAW

The applicant complains about his impending expulsion to

Iran, fearing further imprisonment, torture and capital

punishment if returned to that country.

The Commission has examined the application 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 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 shares the Swedish authorities' doubts in

regard to the applicant's story and finds that his account to the

Swedish authorities of his background in Iran contains

inconsistencies.

The Commission concludes, on the evidence before it

concerning both the applicant's individual 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 Iran.

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)

Menu

ROUDI v. SWEDEN

ROUDI v. SWEDEN

LEXI