Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 20981/92

by M.P.G.

against Sweden

The European Commission of Human Rights sitting in private on

8 April 1993, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

Sir Basil HALL

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

M.A. NOWICKI

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 October 1992

by M.P.G. against Sweden and registered on 20 November 1992 under file

No. 20981/92;

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 1 February and 16 March 1993 and the applicant's

observations in reply submitted on 24 February 1993;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Iranian citizen born in 1960 and currently

resident in Sweden. Before the Commission he is represented by

Mr. Hans Östberg, a lawyer practising in Falun.

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

summarised as follows.

Particular circumstances of the case

In 1979 and 1980 the applicant was an active member of the

resistance movement Mujahedin. He distributed leaflets and magazines

in Teheran. In 1980 he was detained and tortured. In May 1980 he was

released by the Central Revolutionary Court upon signing a declaration

in which he renounced cooperation with "the profane and terrorist

groups". He was, however, prohibited from leaving his place of

residence.

Until the spring of 1988 he worked as an "ordinary member" of

Mujahedin. However, during its military offensive and up to his escape

from Iran he again worked actively and openly for Mujahedin.

In July 1989 the activities of the group in which the applicant

and his brother were working were revealed and two members of the group

arrested. The applicant and his brother then went into hiding.

In October 1989 the applicant and his brother were allegedly

twice sought by members of the Iranian Revolutionary Army in the home

of their parents.

The applicant and his brother left Iran and arrived in Sweden on

6 November 1989.

On 7 November 1989 the applicant applied for asylum.

The applicant's wife and children are still in Iran.

In 1990 the applicant's wife allegedly received the following

notification from the Religious Court of the County of Teheran:

(translation submitted by the applicant)

" ... You shall report, at the latest on 31 December 1990,

to interrogation section I at Gsargatan.

Concerning [your] marriage with [the applicant], depraved

on earth the court has on 18 November 1990 decided, in

accordance with Islamic law, that it is forbidden to have

contact with or get married to a member of Monafegh

(Mujahedin).

All contact with [the applicant] is contrary to Islamic law

and is considered as having illicit sexual relations.

..., interrogator."

On 22 January 1991 the National Immigration Board (statens

invandrarverk) refused the applicant asylum in Sweden. The Board

stated, inter alia:

(translation from Swedish)

"...

Having regard to all the reasons invoked by [the applicant]

in support of his asylum request the Board does not

consider it credible that his political activities [in

Iran] have been of the alleged extent. There is no reason

for granting [him] asylum under Chapter 3, Section 1 of the

[1989] Aliens Act (utlänningslag 1989:529).

..."

On the same day the applicant's brother was, for similar reasons,

also refused asylum.

In a medical report of 9 April 1991 submitted by Dr. J.E. the

following was stated:

(translation from Swedish)

"... [The applicant] was born in Iran, where he has been

sympathising with the Mujahedin movement. [He] states that

in 1980 he was detained for 52 days in [the prison of]

Evin. During [his] detention he was [allegedly] ill-treated

as follows:

- for periods of 5-6 hours his hands were chained together

behind his back; one arm was placed over the same shoulder

and chained to the other arm ... In this position he was

suspended from the ceiling on a chain;

- while he was so suspended he was ... kicked, beaten and

burned in several places by cigarettes;

- his teeth were knocked out;

- on some occasions he received strong kicks on the lower

part of his legs so that they broke.

...

[The applicant] looks older than he is. Through an interpreter

he gives a quiet and seemingly credible account [of his ill-

treatment].

His body shows several small scars which may originate from

the above-mentioned [cigarette burns].

Both hands and, in particular, his right hand, show curved

scars which very likely originate from the above-mentioned

chains.

In sum, [the applicant] has been ill-treated during his

detention in Iran. ... I conclude

- that his account ... is not contradicted by the

examination findings;

- that [his] account is ... compatible with the examination

findings.

..."

On 24 May 1991 the National Immigration Board upheld its previous

decision and referred the applicant's appeal to the Government.

On 11 September 1991 the applicant stated that he had recently

participated in certain Mujahedin activities in Sweden such as a

demonstration.

Following the creation of the Aliens' Board (utlänningsnämnden)

the Government on 16 January 1992 referred the applicant's appeal to

the Board.

In a psychiatric opinion of 25 March 1992 the following was

stated:

(translation from Swedish)

[The applicant] ... first came in contact with [the

Psychiatric Clinic at the County Hospital in Gävle] on

18 January 1992, as some time ago he had begun to suffer

from depression, loss of zest for life, insomnia,

concentration difficulties, loss of appetite and

chilliness. A reactive depression was then found due to the

fact that he had been staying in Sweden since 1989 and had

not yet received a residence permit or any final decision

regarding his fate. On 18 January [1992] [he] stated that

he had begun to contemplate suicide. He was then placed

under observation, received medical treatment and

[psychiatric therapy] and was released on 19 January

[1992]. [He] was sent back to us ... after having tried to

commit suicide by means of pills. [He stated] that his wife

and children are still in Iran and that his depression had

deepened. ... He had contemplated suicide more and more

often. ... As from 13 March [1992] [he] is staying at ...

the Psychiatric Clinic. Neither a depression nor desperate

impulsive acts can be excluded. ..."

This opinion was attached to the applicant's appeal to the Aliens

Board together with photographs confirming his political activities in

Sweden.

On 2 April 1992 the Aliens Board rejected the appeal, stating the

following:

"The [Aliens] Board shares the opinion of the National

Immigration Board that [the applicant's] assertion that he

runs a risk of persecution in his home country lacks

credibility. [The applicant] is not to be considered a

refugee under Chapter 3, Section 2 of the Aliens Act.

Neither are such circumstances at hand as prescribed in

Chapter 3, Section 1, para. 3 ...

It appears from the investigation that [the applicant's]

wife and underaged children remain in [Iran]. His

connection with [Iran] is, thus, of such a character that

special reasons are at hand for not granting a residence

permit under [the 1991 Aliens Ordinance (förordning 1991:

1999 om upphållstillstånd i vissa utlänningsärenden)].

...

The humanitarian reasons invoked are not of such a

character as to warrant the granting of a residence

permit...

Neither are there any reasons for allowing him to stay ..."

No appeal lay against the Aliens Board's decision.

One member of the Board found that the applicant's connection

with Iran was not of such a strength as to warrant the refusal of a

residence permit. He noted that on the same day the Board had allowed

the applicant's brother to stay in Sweden in the absence of any special

reasons speaking against granting a residence permit.

On 14 April 1992 the Supreme Administrative Court (Regerings-

rätten) rejected the applicant's request for a re-opening of the

proceedings.

On 12 June 1992 the National Immigration Board rejected a further

request for a residence permit and suspension of the expulsion order

on the ground that the new evidence submitted was not sufficient for

the granting of asylum or a residence permit. No appeal lay against

this decision.

On 11 November 1992 the National Immigration Board rejected, on

grounds similar to those in its decision of 12 June 1992, a further

request by the applicant for a residence permit. No appeal lay against

this decision.

In support of the last-mentioned request the applicant had

submitted a copy of a summons allegedly issued by the Central Office

of the Islamic Prosecutor on 7 June 1992, in which the applicant had

been summoned to appear at an interrogation section on 26 June 1992.

The Government submit that on 11 August 1992 the National

Immigration Board decided to suspend the execution of the expulsion

order and to have the authenticity of the summons verified. The

investigation concluded that the document was a falsification.

From the summer of 1990 to the summer of 1991 the applicant

participated in manifestations organised by the Swedish Mujahedin

movement. Fearing, however, that he had been photographed by an Iranian

agent he subsequently stopped supporting Mujahedin activities in the

open.

Relevant domestic law

Under Chapter 3, Section 1 of the Aliens Act, an alien may be

granted asylum because he is a refugee (no. 1) 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 (no. 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, 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).

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).

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 Government, too,

may 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. If the Board has handed over the

file to the Government it may only review its decision, provided its

opinion is requested by the Government.

The National Board of Immigration may, for special reasons, refer

a request for asylum to the Government together with its opinion on 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, 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 particularly serious

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. 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 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).

Under the 1991 Ordinance on Residence Permits in Certain Cases

(förordning 1991:1999 om uppehållstillstånd i vissa utlänningsärenden)

an alien who has been staying in Sweden for more than eighteen months

on 1 January 1992 may be granted a residence permit unless there are

special reasons for not granting such a permit. The Ordinance entered

into force on 1 February 1992.

COMPLAINT

The applicant alleges that, if returned to Iran, he will be

subjected to torture or capital punishment. He refers to his activities

within the Mujahedin movement, his previous detention and torture, the

annulment of his marriage allegedly only possible if a person is

considered an enemy to the Iranian State, and the summons issued by the

Islamic Prosecutor in June 1992. He invokes Article 3 of the

Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 17 October 1992 and registered

on 20 November 1992.

On 20 November 1992 the President of the Commission decided,

pursuant to Rule 36 of the Commission's Rules of Procedure, 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 its admissibility and merits.

On 2 December 1992 the President granted an extension of the

Government's time limit for submitting their observations.

On 11 December 1992 the Commission prolonged the President's

indication under Rule 36 until 15 January 1993.

On 15 January 1993 the Commission prolonged its indication under

Rule 36 until 19 February 1993.

The Government's observations were submitted on 1 February 1993.

On 19 February 1993 the Commission prolonged its indication under

Rule 36 until 8 April 1993.

On 19 February 1993 the Commission granted the applicant legal

aid.

The applicant's observations in reply were submitted on 24

February 1993.

THE LAW

The applicant complains that, if returned to Iran, he will be

subjected to torture or capital punishment. 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 argue that the application is manifestly ill-

founded, as there are no substantial grounds for believing that the

applicant would face a real risk of treatment contrary to Article 3

(Art. 3) upon his return. The applicant had not substantiated his

allegation that he was wanted by Iranian authorities. The Government

question whether the applicant was really sought by the Iranian

authorities, as he managed to live for some time in his sister's house.

The applicant had further made contradicting statements about his

arrest in 1980. At first he had stated having been arrested in the

street while distributing leaflets for Mujahedin. In a subsequent

interview with immigration officials he had stated having been arrested

in his home. Moreover, on the first occasion he stated having broken

off his contacts with Mujahedin following the banning of the movement.

Yet subsequently he had stated having stopped working for Mujahedin for

private reasons. The Government have further concluded that the summons

allegedly issued by an Islamic Prosecutor is a falsification.

The Government further submit that the applicant's knowledge of

Mujahedin seems rather limited. As regards the details of the

applicant's journey from Iran to Sweden a number of elements raised

doubts as to the credibility of his account. The applicant allegedly

managed to travel by bus via a number of big cities without his

identity ever having been checked. The system for searching for wanted

persons in Iran is, however, known to be quite efficient. He allegedly

managed to fly from Dubai holding a Saudi-Arabian passport, but without

a boarding card or even a flight ticket. No security control was

allegedly carried out, not even of the applicant's luggage.

Subsequently he had difficulties remembering the name of the airline.

In the Government's view it could be questioned whether the applicant

really departed from Dubai.

The Government refute the applicant's statement to the Swedish

authorities that he did not have to present his passport upon arrival

in Copenhagen. This contradicts the routines at the airport, where also

Swedish police take part in passport controls. His assertion that he

passed the passport control at Arlanda airport in Stockholm seemed even

less credible.

The Government point out that there was no reason for the

applicant not to apply for asylum immediately upon his alleged arrival

on 6 November 1990 instead of on the following day.

The Government state that they have not been faced with any

evidence of ill-treatment of Iranians who have returned to their

country. Many Iranian asylum seekers travel to and from their country

without any problems. More and more Iranians are, however, leaving

their country for economic and not for political reasons.

The Government emphasise that in 1991 1.266 and in 1992 743

Iranians applied for asylum in Sweden. About 47 per cent of the

applications were rejected by the National Immigration Board in 1992.

However, 1.129 Iranians were granted residence permits. Out of these

124 were considered to be political refugees within the meaning of

Chapter 3, Section 2 of the Aliens Act, while 311 were granted de facto

refugee status within the meaning of Chapter 3, Section 1, no 3. 693

Iranians were granted residence permits on humanitarian grounds.

The Government finally point out that Chapter 8, Section 1 of the

Aliens Act reflects almost exactly the principles established in the

case-law of the European Court of Human Rights. The final decision in

the present case was made by the newly established Aliens Board, which

is independent from the Government. Both the applicant and his brother

were refused asylum in view of the information submitted by them, which

was found to lack credibility. Although the applicant's brother was

also refused asylum, he was allowed to stay in Sweden in accordance

with the 1991 Ordinance, the authorities having found no special reason

speaking against granting him a residence permit. In the applicant's

case, however, the fact that his wife and children remain in Iran, was

seen as such a reason.

The applicant maintains that when arriving in Sweden he handed

over his identity booklet to the National Immigration Board. It appears

from this booklet that he has not performed his military service. A

person who has such a booklet cannot have a passport, as the booklet

is exchanged for the passport. A person suspected of banned political

activities cannot exchange his booklet for a passport. An identity

booklet is in itself strong evidence of his position and activities in

Iran. The fact that he possesses an identity booklet proves that he

does not have normal civil and political rights in Iran. The

information showing that his marriage has been annulled proves that the

Iranian State views him as an enemy of the State. It is known that Iran

is violating human rights in its treatment of dissidents.

The applicant further submits that in 1992 the Swedish Government

expelled an Iranian, who was immediately arrested at the airport in

Teheran and has not been heard of since. Mujahedin requested the

Swedish Government to intervene. The Swedish Prime Minister demanded

that the man be released so that he could be received in Sweden. This

demand seems to have been in vain.

The Government maintain that the fact that the applicant was in

possession of an identity booklet when arriving in Sweden does not

prove whether or not he has held a valid passport. When a passport is

issued to an Iranian, the identity booklet is returned to him, as it

may be needed in other contacts with authorities. Many Iranian asylum

seekers have arrived in Sweden in possession of both a passport and an

identity booklet.

The Government further state that they are unaware of the case

of the Iranian expelled from Sweden in 1992 referred to by the

applicant. The Swedish Prime Minister has never interfered in an

individual asylum case in the manner alleged. In a case which came to

the Government's knowledge in 1992 it was alleged that an asylum seeker

who had returned to Iran had been arrested. The information proved to

be wrong and the person was found living in good conditions. Although

it is not unusual for Iranians returning after a long stay abroad to

be interrogated by the police, they are usually released afterwards.

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 of an asylum seeker may give rise to an issue

under Article 3 (Art. 3) of the Convention, and hence engage the

responsibility of a Contracting 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 in this context (ibid., p.

37, para. 111).

The Commission shares the Government's considerable doubts in

regard to the applicant's story. The applicant has not commented on the

Government's assertion that the summons allegedly issued by an Islamic

Prosecutor is a falsification. The Commission finds that on the whole

the applicant's account of his background in Iran and escape to Sweden

contains inconsistencies.

The Commission also attaches importance to the fact that the

Swedish authorities appear to have gained a 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. Moreover, it should be

noted that the authorities are obliged to consider basically the same

factors as are relevant to the Convention organs' assessment under

Article 3 (Art. 3) of the Convention. The applicant's expulsion was

made after careful examination of his case (cf. Eur. Court H.R., Cruz

Varas and Others judgment of 20 March 1991, Series A no. 201, p. 31,

para. 81).

The Commission in particular observes that Chapter 8, Section 1

of the Aliens Act imposes an absolute obligation also on the enforcing

authority in Sweden to refrain from expelling an alien, should the

evolution of the human rights situation in the receiving country

constitute firm reason to believe that he would be in danger of being

subjected to capital or corporal punishment or torture in that country.

The Commission concludes that the evidence before it concerning

the applicant's background and the general situation in Iran does not

establish that there are substantial grounds for believing that the

applicant would be exposed to a real risk of being subjected to

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

there.

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, by a majority

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NORGAARD)

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M.P.G. v. SWEDEN

M.P.G. v. SWEDEN

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