Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 16381/90

by R

against Denmark

The European Commission of Human Rights sitting in private

on 14 October 1991, the following members being present:

MM. J.A. FROWEIN, Acting President

C.A. NØRGAARD

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

Mrs. J. LIDDY

MM. L. LOUCAIDES

M.P. PELLONPÄÄ

B. MARXER

Mr. J. RAYMOND, Deputy 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 21 March 1990

by R against Denmark and registered on 2 April 1990 under file

No. 16381/90;

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 23 May 1991 and the observations in reply submitted by

the applicant on 3 June 1991, as well as the submissions of the

parties at the hearing held on 8 July 1991 and the documentary

evidence submitted on 26 August 1991;

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 1961. He is at

present serving a six-year prison sentence at Nyborg State Prison,

Denmark. Before the Commission he is represented by his lawyer,

Mrs. Helle Lokdam, Århus, Denmark.

The applicant came to Denmark on 11 March 1984 where he

applied for asylum. He explained to the Directorate for Aliens

(Direktoratet for Udlændinge) that he had never been a member of any

political organisation or otherwise been politically active. He

submitted, however, that on 6 December 1983 he commenced his military

service. After approximately two months' basic training, he received

ten days' leave before going to the Iranian/Iraqi front. He did not

return to the army after the ten-day leave and in mid-February 1984 he

left Iran illegally and arrived in Pakistan, from where he continued

to Denmark via Turkey and the then German Democratic Republic.

On 25 September 1984 the Directorate for Aliens informed

the applicant that he would receive a time-limited residence permit

in accordance with Section 7 para. 1 no. 2 of the Aliens Act with a

view to permanent residence in Denmark due to the fact that he had

deserted from the Iranian army. This Section of the Aliens Act reads

as follows:

(translation)

"1. Upon application a Danish residence permit shall be

issued to an alien falling within the provisions of the

Convention on the Legal Status of Refugees of 28 July 1951.

2. A Danish residence permit shall be issued to an alien

who does not fall within the provisions of the Convention on

the Legal Status of Refugees of 28 July 1951, provided that

for reasons similar to those stated in that Convention or

for other weighty reasons he should not be required to

return to his country of origin."

In May 1986 the applicant was arrested and charged with seven

counts of rape and attempted rape and one count of theft. During the

investigations the Aliens Board (Flygtningenaevnet) submitted, on

19 November 1986, that the reasons which in 1984 were the basis upon

which the applicant was granted a residence permit in accordance with

the Aliens Act were still valid. According to the Aliens Board the

applicant could not be sent to Iran. Furthermore the Board maintained

that a deportation of the applicant on the basis of a judgment would

require that the situation in Iran would change or that he be deported

to another country where he could obtain protection. The Board,

however, reserved its position with reference to Section 31 para. 2

(mentioned below).

By judgment of 2 April 1987 the High Court of Western Denmark

(Vestre Landsret) sitting with a jury found the applicant guilty of

most of the charges brought against him and sentenced him to six

years' imprisonment. It was furthermore decided, on the basis of

Sections 22 and 26 of the Aliens Act, to expel the applicant from

Denmark and prohibit, forever, a return to Denmark. The applicant did

not appeal against the sentence or the decision to expel him.

Section 22 of the Aliens Act reads as follows:

(translation)

"An alien who for the purpose of permanent stay has

lawfully lived in Denmark for more than the immediately

preceding 7 years, and an alien issued with a residence

permit under Sections 7 or 8 may be expelled only if:

1. expulsion is deemed necessary for reasons of

national security;

2. the alien has repeatedly committed serious

criminal offences;

3. the alien is sentenced unconditionally to a minimum

of 6 years' imprisonment or other custodial penalty,

and because of the sentence and the nature and

seriousness of the crime he ought not to remain in

Denmark."

Section 26 of the Aliens Act reads as follows:

(translation)

"In deciding on expulsion, not only the alien's relationship

with the Danish community, including the duration of his

stay in Denmark, shall be taken into consideration, but also

whether the expulsion would be considered exceptionally

burdensome on him, in particular because of:

1. the alien's age, health and other personal

circumstances;

2. the alien's personal or family ties with Danish or

foreign nationals living in Denmark;

3. the alien's other ties with Denmark, including

whether the alien came to Denmark in his childhood

or tender years and therefore spent some or all of his

formative years in Denmark;

4. the alien's loose or non-existent ties with his

home country or any other country in which he may be

expected to take up residence; and

5. the risk that the alien will be ill-treated in his

home country or any other country in which he may

be expected to take up residence."

In October 1988 the applicant requested the City Court

(Byretten) of Nyborg to reconsider, in accordance with Section 50 of

the Aliens Act, the decision to expel him contained in the High Court

judgment of 2 April 1987.

Section 50 of the Aliens Act reads as far as relevant:

(translation)

"If an expulsion ... has not been enforced within a period

of six months from the judgment, an alien may request the

question of the annulment of the expulsion order to be

brought before the court if he maintains that substantial

changes in his situation have occurred ... The request must

be made at least 3 months prior to the expected expulsion.

... The request may be rejected by the court if it is

obvious that no substantial changes in the alien's situation

have occurred.

The court's decision is made in the form of a court order

(kendelse) which may be appealed against in accordance with

the rules set out in Chapter 85 of the Administration of

Justice Act (Retsplejeloven)."

On 13 October 1988 the City Court of Nyborg rejected the

request in accordance with Section 50 para. 2 of the Aliens Act.

The applicant did not appeal against this decision.

When the applicant learned of his intended release on 9 May

1990 he requested the Chief of Police of Nyborg, on 5 September 1989,

to consider whether it would be contrary to Section 31 of the Aliens

Act to expel him to Iran.

Section 31 of the Aliens Act reads as follows:

(translation)

"An alien shall not be expelled to a country where he risks

persecution for the reasons set out in the Convention on

the Legal Status of Refugees of 28 July 1951, Article 1 (a),

or where the alien is not protected against being

transferred to such a country.

The above also applies if the reasons stated in Section 7

para. 1 no. 2 ... are at hand, save where there are specific

reasons to assume that the alien presents a danger to national

security, or if the alien, after a final judgment concerning

a particularly dangerous crime, must be assumed to present

an imminent danger for the life, health, or freedom of

others."

On 3 October 1989 the Chief of Police of Nyborg decided that

Section 31 of the Aliens Act would not prohibit the applicant's return

to Iran.

The applicant appealed against this decision to the Aliens Board

which heard the applicant on 12 December 1989. He explained that upon

return to Iran he feared execution because he had deserted from the

army and furthermore he feared persecution because of his criminal

record in Denmark. On 29 December 1989 the decision of the Chief of

Police of Nyborg was upheld. The Aliens Board found that, regardless

of the fact that the applicant had obtained asylum in Denmark, he

could be expelled in accordance with Section 31 para. 2 of the Aliens

Act.

The Chief of Police of Nyborg then informed the applicant's

representative that the applicant would be expelled immediately upon

release from prison on 9 May 1990.

In February 1990 a member of the Danish Parliament asked the

Minister of Foreign Affairs what guarantees he was able to obtain in

order to make sure that Iranians who had been granted asylum in

Denmark because they had refused military service, would not be

executed if they returned to Iran.

In his answer of 20 March 1990 the Minister of Foreign

Affairs stated the following:

(translation)

"It naturally follows that it is not possible for the

Ministry of Foreign Affairs to obtain guarantees that

Iranians who have been granted asylum in Denmark but who are

later expelled from Denmark will not be executed if they are

sent back to Iran.

The specific case which the question seems to refer to has

been finally decided by the Aliens Board."

The case referred to by the Minister was the applicant's case.

On 7 May 1990 the applicant asked the Aliens Board to reopen his case,

inter alia with reference to a note dated 26 April 1990 from the

Ministry of Justice concerning the case-law of the European Court of

Human Rights with regard to Article 3 of the Convention, including in

particular the Soering case, and Article 1 of Protocol No. 6.

Furthermore reference was made to a note dated 2 May 1990 from the

Ministry of Foreign Affairs concerning the applicant's situation if he

were to return to Iran. The first-mentioned note concluded that, in

the light of the case-law of the European Court of Human Rights, it

could be assumed that an expulsion to a country which applied the

death penalty would be considered by the Court as violating Article 1

of Protocol No. 6 to the Convention. From the second note it appeared

that the offences committed by the applicant in Iran (desertion from

the army) were not of a kind which could be expected to lead to

capital punishment or treatment contrary to Article 3 of the

Convention, but that the offences might lead to a prolongation of the

period of military service. It also appeared from the note that rape

is a capital crime in Iran.

On 6 June 1990 the Aliens Board refused to reopen the

applicant's case and referred the applicant to the Danish courts in

order to have the question of expulsion considered under Section 50 of

the Aliens Act.

On 9 August 1990 the applicant accordingly brought the

question of expulsion before the City Court of Nyborg.

On 20 September 1990 the City Court annulled the decision in

the High Court judgment of 2 April 1987 whereby the applicant was to

be expelled after having served his 6 year prison sentence. As it

could not be excluded that the applicant, if expelled to Iran, might

be prosecuted and as it could not be excluded either that he risked

execution, the Court found that the expulsion would be contrary to

Article 3 of the Convention and Article 1 of Protocol No. 6.

The public prosecutor appealed against this decision to the

High Court of Eastern Denmark which heard the case on 12 October 1990.

On 6 November 1990 the High Court overruled the City Court's decision.

The High Court stated that the facts of the case, i.e. the

information about the risk that the applicant might be ill-treated in

Iran if he were to be expelled, did not differ substantially from the

information available at the time of his conviction by the High Court

of Western Denmark in April 1987. Equally the law, i.e. in particular

Article 3 of the European Convention on Human Rights and Article 1 of

Protocol No. 6, had remained unchanged. The Ministry of Justice had, in

a note dated 26 April 1990, made a legal interpretation of the

Convention and the Protocol. This fact could not be considered to have

caused substantial changes in the applicant's situation. Against this

background the High Court of Eastern Denmark found no grounds under

Section 50 of the Aliens Act to annul the decision in the judgment of

the High Court of Western Denmark to expel the applicant.

On 31 January 1991 the Ministry of Justice granted the

applicant leave to appeal to the Supreme Court (Højesteret) which then

received the case-file concerning the applicant's criminal case as

well as the case-file concerning the expulsion case.

Before the Supreme Court the Prosecutor General submitted

inter alia that an expulsion to a country which applied the death

penalty would not as such violate the Convention or its Protocols. A

problem would only arise if there was a substantial risk that the

person in question, due to the expulsion, would be executed or

tortured. In the present case the Prosecutor General did not find this

to be the case since there was, in his opinion, no support for the

allegation that the applicant would face prosecution for the crimes

committed in Denmark, and since desertion from the army in Iran did

not appear to carry a punishment which would affect Denmark's

obligations under the Convention.

The applicant submitted in particular that he fulfilled the

requirements for asylum in Denmark, that he risked prosecution for

deserting from the army and for the crimes committed in Denmark, which

again could lead to execution after a trial which could not be

considered fair. He maintained that an expulsion would be contrary to

the Convention and its Protocols and furthermore referred to the general

situation in Iran which could only be described as still being

unclear.

Upholding on 2 May 1991 the High Court's decision, the Supreme

Court stated that, having regard to the nature of the offences

committed by the applicant in Iran, there was no reason to assume that

his expulsion would constitute a breach of the European Convention on

Human Rights. Furthermore, the Supreme Court stated that there was no

particular reason to assume that the applicant would be prosecuted in

Iran for the offences of which he had been convicted by the High Court

of Western Denmark on 2 April 1987, a reason which might otherwise

have made his expulsion a measure contrary to the Convention.

COMPLAINTS

The applicant submits that upon release from prison he will be

detained immediately by the police and expelled to Iran on the basis

of the judgment of 2 April 1987 and the decision of the Supreme Court

of 2 May 1991. The applicant alleges that a return to Iran would

expose him to an extreme risk of being subjected to treatment contrary

to Article 3 of the Convention or, even worse, execution.

In support of his allegation, the applicant submits that the

reason for granting him asylum in 1984 was the fact that he had

deserted from the army and the general situation in Iran. On 19

November 1986 the Aliens Board had maintained that he could only be

sent to Iran if the situation in Iran would change. The applicant

submits, however, that there has been no such change in Iran and this

has not been disputed by the Danish authorities. However, the

authorities may nevertheless expel him by virtue of Section 31 para. 2

of the Aliens Act which permits expulsion regardless of the fact that

a serious risk of persecution exists.

The applicant does not necessarily want to remain in Denmark,

but he wants a guarantee that he will be sent to a country where he

does not risk treatment contrary to Article 3 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 21 March 1990 and registered

on 2 April 1990.

On 6 April 1990 the Commission decided to bring the

application to the notice of the respondent Government and to invite

them to submit observations on its admissibility and merits. It was

also decided to indicate to the Government, in accordance with 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 expel the applicant to Iran until the Commission had had an

opportunity to examine the application further.

The Commission's indication under Rule 36 of its Rules of

Procedure was lifted on 7 September 1990 after the Commission had been

informed that the expulsion question was pending before the Danish

courts and that the applicant did not risk expulsion before these

proceedings had come to an end.

On 7 May 1991 the Government informed the Commission that the

Supreme Court, on 2 May 1991, had decided that the expulsion order

could be enforced and that the applicant could be expected to be

expelled on 16 May 1991.

On 13 May 1991 the Acting President of the Commission decided

to indicate to the Government, in accordance with 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 expel

the applicant to Iran until the Commission had had an opportunity to

examine the application further. The Acting President also fixed the

time-limit for the submission of the Government's observations on

admissibility and merits at 24 May 1991.

The Government's observations were submitted on 23 May 1991.

The applicant submitted observations in reply on 3 June 1991.

On 6 June 1991 the Commission decided to invite the parties to

appear before it at a hearing on admissibility and merits. It was

furthermore decided to grant legal aid.

At the hearing, which was held on 8 July 1991, the parties

were represented as follows:

The Government

Mr. Tyge Lehmann Ministry of Foreign Affairs, Agent

Mr. Michael Elmer Ministry of Justice, counsel

Mr. Finn Abrahamsen Ministry of Foreign Affairs, counsel

Ms. Lene Larsen Ministry of Justice, counsel

Mr. Arne Tornvig Christensen National Police Commissioner's Office, counsel

The applicant

Mrs. Helle Lokdam Counsel for the applicant

Following the hearing the Commission decided to adjourn the

case and to obtain from the parties further documentary evidence. This

evidence was submitted on 26 August 1991.

THE LAW

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

subjected to treatment contrary to Article 3 (Art. 3) of the

Convention. He also complains that upon his return to Iran he will be

prosecuted there for the offences of rape and attempted rape committed

in Denmark, for which he risks receiving the death penalty. He

invokes in this respect Article 1 of Protocol No. 6 (P6-1) to the

Convention.

Article 3 (Art. 3) of the Convention reads:

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

degrading treatment or punishment."

Article 1 of Protocol No. 6 (P6-1) to the Convention reads:

"The death penalty shall be abolished. No one shall be

condemned to such penalty or executed."

In support of his complaints the applicant submits that it

would be in breach of the Convention to expel a person who fulfils the

conditions for obtaining the legal status of refugee. In this respect

the applicant recalls that the Danish Aliens Board still maintains

that he fulfils these conditions, which means that he would be in

danger if he were to return to Iran. The general situation in Iran is

very unclear and unreliable and upon arrival in Iran he will not be in

possession of a valid travel document which in itself will lead to his

arrest. His prolonged absence from Iran is likely to attract special

attention and his original reason for applying for asylum in Denmark,

i.e. that he deserted from the army, as well as the fact that he has

lived as a de facto refugee in Denmark since 1984 will strengthen the

suspicion of sympathies and activities contrary to the Iranian

Government's policies.

Furthermore, the applicant submits that it is undisputed that

the Iranian authorities do not as such recognise judgments by foreign

courts which do not operate in accordance with Islamic law. His

criminal case and his expulsion case have attracted a lot of media

attention which undoubtedly has been registered by the Iranian

embassy. It is likely, therefore, that he will have to stand trial in

Iran for the offences committed in Denmark which in Iran carry the

death penalty. As regards the evidence required for that trial the

applicant submits that the Iranian courts would attach great

importance to the Danish judgment and the assessment made by the

Danish court.

Accordingly, the available information about the Islamic Penal

Code together with the available knowledge of how law and order is

practised in Iran and the uncertainty which is connected with the

evaluation of the circumstances, in particular in the light of the

limited information available to the Danish authorities, must lead to

the conclusion that there would be a serious risk that an expulsion

would expose the applicant to treatment contrary to the provisions

invoked. He should in any event be given the benefit of any doubt in

this respect.

The Government submit that expulsion as a consequence of

serious crimes committed by an alien is inherent in every legal system

in Europe. Danish law prescribes that decisions concerning expulsion

are always made by judicial bodies which inter alia must take into

consideration whether an expulsion would expose the person in question

to ill-treatment in the receiving country. Information of a general and

concrete nature in this respect is provided by the Ministry of Foreign

Affairs through Danish and other countries' diplomatic missions, as

well as international organisations, such as the UNHCR and Amnesty

International. The Government accept that the human rights situation

in Iran continues to cause serious concern which is also reflected in

critical resolutions, sponsored inter alia by Denmark and adopted by the

United Nations General Assembly. However, although it is not possible

to issue any guarantees to aliens being returned to their country of

origin, the Government submit that each case must be considered on its

own merits. This view is supported by a report of May 1990, drawn up

by eight western embassies in Tehran, which concluded that a blanket

policy of not returning Iranians to Iran was no longer appropriate.

As regards the applicant's situation the Government submit

that all usual sources of information, as mentioned above, were used

in order to enable the authorities and subsequently the courts to

reach a conclusion on the question of expelling the applicant to Iran.

In particular the Supreme Court was fully informed of the situation in

Iran and of the expected situation of the applicant upon his possible

return. This information shows that the mere fact that the applicant

applied for asylum abroad is not penalised under Iranian law. It is,

however, an offence to leave Iran illegally and the applicant may be

punished by one to two years' imprisonment or a fine. Furthermore, it

can be expected that the applicant is registered as a first-time

deserter. The Iranian provisions on desertion are found in a circular

of 23 September 1988 issued by the Iranian Ministry of the Interior

which shows that the applicant can only expect additional military

service.

As regards the risk of being prosecuted again for the offences

committed in Denmark the Government agree that Iranian courts do not

accept judgments pronounced by courts which do not apply Islamic law.

They also accept that the penalty for rape is execution. However, they

submit that Iran does not try a crime committed abroad where the case

has been tried and the sentence served abroad. Furthermore, having

regard to the Iranian rules on evidence, as set out in the Iranian

Penal Code, it would be impossible in practice legally to convict the

applicant for the offences committed in Denmark.

Finally, the Government submit that they are prepared to

instruct their embassy in Tehran, if the applicant so wishes, to

follow his case to the extent possible.

Against this background the Government contend that they have

made a thorough investigation into the applicant's case which shows

that there is no substantial risk that he will be subjected to

treatment contrary to the Convention or its Protocols if returned to

Iran.

The Commission recalls the case-law of the Convention organs

according to which the right of an alien to reside in a particular

country is not as such guaranteed by the Convention. However, the

decision of a Contracting State to expel a person 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 there is a

substantial risk that the person, if expelled, will be subjected to

treatment contrary to Article 3 (Art. 3) of the Convention in the receiving

country (see Eur. Court H.R., Soering judgment of 7 July 1989, Series

A no. 161, p. 35 et seq., para. 91, and No. 12102/86, Dec. 9.5.86, D.R.

47 p. 286).

The question arises whether analogous considerations apply to

Article 1 of Protocol No. 6 (P6-1) to the Convention, in particular whether

this provision equally engages the responsibility of a Contracting

State where, upon expulsion, the person concerned faces a real risk of

being subjected to the death penalty in the receiving State. However,

the Commission need not resolve this question since the complaints at

issue are in any event manifestly ill-founded for the following

reasons.

The examination of the present case involves, on the one hand,

the applicant's personal situation and, on the other, the general

situation in Iran. For this purpose the parties have provided copies

of all relevant material which was at the disposal of the Danish

authorities. This material includes information on Iranian law, United

Nations and Amnesty International reports on Iran, information

concerning the applicants' personal situation and reports supplied

through diplomatic missions in Iran. Having regard thereto the

Commission finds that the general situation in Iran at present is not

of a kind that an expulsion would as such amount to a violation of the

Convention or its protocols. In order to raise an issue under the

provisions invoked there should accordingly be some substantiation as

to the existence of a specific risk of treatment contrary to these

provisions in the particular circumstances of the case.

The Commission recalls that upon his arrival in Denmark in

1984 the applicant stated that he had never been a member of any

political organisation or otherwise been politically active. The

examination of his case has not produced any evidence to the

contrary for which reason the Commission finds it established that

there exists no substantial risk for the applicant that he will suffer

ill-treatment because of political activities.

On the other hand the Commission finds it likely that the

applicant will be arrested upon arrival in Iran due to lack of travel

documents and handed over to the military authorities due to the fact

that he deserted from the army. This would, according to information

available to the Commission, in all probability lead to an obligation

to do prolonged military service. However, the Commission recalls that

the mere fact that an applicant would be obliged to perform military

service cannot as such raise an issue under Article 3 (Art. 3) or any other

provision of the Convention and this conclusion is not changed by the

fact that military service might be prolonged (see No. 4314/69, Dec.

2.2.70, Collection 32 p. 97 and No. 14401/88, Dec. 12.1.91, to be

published in D.R.). Furthermore, the applicant has not shown that he

has other serious grounds for fearing that, upon his return to Iran,

his evasion of military service would subject him to treatment

contrary to the provisions invoked by him.

As regards the applicant's criminal record the Commission

finds it established that the Iranian courts do not accept judgments

pronounced by courts which do not operate in accordance with Islamic

law. Furthermore, it is clear that the criminal offences of which the

applicant was convicted in Denmark carry, in Iran, the death penalty.

The Commission cannot find, however, that there is a substantial risk

that the applicant will be prosecuted again for these offences. First

of all the Commission recalls that the present case does not concern

an extradition request made by the Iranian authorities and, according

to the documents submitted, the Iranian authorities will not, either

from Denmark or through Interpol, receive any information of the

applicant's activities in Denmark. Secondly, the Government submit

that according to their sources of information Iranian courts do not

try crimes committed abroad where the case has been tried and the

sentence served there, an assessment which the applicant has not in

any way shown to be incorrect. Thirdly, the Commission finds that the

applicant has not submitted any evidence which could lead it to

conclude that the collection of the evidence required in order to

allow an Iranian court to convict him of the crimes committed in

Denmark would be within any practical possibility. Finally, the

Commission has noted the respondent Government's offer to instruct

their embassy in Tehran, if the applicant so wishes, to follow his

case to the extent possible.

As a result the Commission finds that the applicant has failed

to show that the Danish authorities would expose him to a serious risk

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

Article 1 of Protocol No. 6 (P6-1) to the Convention should they expel

him to Iran.

It follows that the application is 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.

Deputy Secretary to the Commission Acting President of the Commission

(J. RAYMOND) (J.A. FROWEIN)

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R. v. DENMARK

R. v. DENMARK

LEXI