Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 17387/90

by A.

against Sweden

The European Commission of Human Rights sitting in private

on 7 March 1991, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

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

MM. F. MARTINEZ RUIZ

C.L. ROZAKIS

MM. L. LOUCAIDES

J.-C. GEUS

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

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 26 October 1990

by A. against Sweden and registered on 5 November 1990 under

file No. 17387/90;

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 Government

on 28 November 1990 and 30 January 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 a citizen of Bangladesh, born in 1964.

Before the Commission he is represented by Mrs. Madelaine Seidlitz,

Stockholm.

The applicant arrived in Sweden from Bangladesh on 28 June

1988. He had been granted a visa by the Swedish National Immigration

Board (statens invandrarverk) on 17 May 1988. The visa granted

permitted the applicant to stay in Sweden for a maximum of 30 days in

total and he was to leave Sweden on 31 August 1988 at the latest. When

applying for this visa the applicant stated that he wished to come and

visit his sister who was in Sweden and who at that time, according to

the applicant, was ill. He also stated that he intended to go back to

Bangladesh after his visit in Sweden.

On 27 July 1988 the applicant, however, applied for a

residence permit on political grounds at the local police authority of

Stockholm.

On 12 September 1988 the applicant was heard by the police

regarding his request for a residence permit. On this occasion he

stated that he was wanted by the police in Bangladesh due to the fact

that he was present when a police officer was shot and killed by a

friend of his during a political demonstration in Dinajpur on 10

November 1987 arranged by the Awami League, the political party in

Bangladesh in which the applicant is said to have been active. There

were, according to the applicant, about 4000-5000 persons taking part

in the demonstration. He and four other persons were pointed out by

the police as guilty of the killing, and the reason for this was,

according to the applicant, that he is always suspected when something

occurs, that the four other persons were just standing by and that he

is a friend of the person who fired the gun.

The applicant also stated that in 1984 he had taken part in a

demonstration and had been arrested. He was held for twelve days and

had been beaten by the police at a police station in Kotowwali after

which he was hospitalised for ten days.

On 12 September 1988 the local police authority of Stockholm

decided to refer the applicant's case to the National Immigration

Board in accordance with Sections 33 and 34 of the Aliens Act

(utlänningslagen), in view of the fact that there were, according to

the police authority, grounds for refusal of entry and since the

applicant had invoked political reasons for his request to remain in

Sweden.

On 31 October 1988 the applicant submitted certain additional

remarks to the police report concerning the alleged treatment he had

received; that he had lived in hiding in Bangladesh and that his

brother-in-law had provided him with a passport.

On 30 June 1989 the National Immigration Board rejected the

applicant's request for a residence permit and ordered that he should

be expelled. The Board found that the information which the applicant

had submitted was not credible. The reasons which he had invoked were

not sufficiently strong for considering him as a refugee within the

meaning of the Aliens Act or under the Geneva Convention of 1951

relating to the status of refugees. Nor were the facts invoked of such

weight that he should otherwise be allowed to remain in Sweden and

granted a residence permit.

On 6 July 1989 the applicant lodged an appeal against the

Board's decision with the Government.

On 2 August 1989 the applicant submitted a document written in

Bangla. This document appeared to be a copy of minutes from a trial

before a Court of Appeal in Dinajpur in Bangladesh. A translation of

the document into Swedish was made. The document contained a report on

a case brought i.a. against the applicant concerning the murder of a

policeman during a demonstration held in Dinajpur on 10 November 1987.

It contained a verdict according to which the applicant and four other

accused had been found guilty of planned and premeditated murder in

violation of Sections 144, 148, 302 and 109 of the Penal Code of

Bangladesh and sentenced to death.

On 12 September 1989 the National Immigration Board requested

the Swedish Embassy in Dhaka to make an inquiry concerning the

authenticity of the said document and concerning the question whether

there actually existed a judgment of the said character or whether

there were any proceedings instituted against the applicant.

On 29 October 1989 the Embassy informed the Immigration Board

that its inquiry showed that the document was a falsification. No case

of the said number (105:88) existed. Also the number from the General

Register (GR No. 42/1987) had proven to be non-existent. According to

information obtained by the Embassy from the Court in Dinajpur there

were only 73 cases registered during 1988. According to the lawyer

mentioned in the document as representing the applicant in the

proceedings before the Court in Dinjapur, the case was invented and the

content of the document was false.

In support of his appeal to the Government the applicant

subsequently submitted medical certificates issued on 22 December 1988

and 24 October 1989 according to which he suffers from mental

disturbances that will make psychiatric treatment necessary for many

years ahead.

On 15 January 1990 the National Immigration Board recommended

the Government not to grant the applicant's appeal. It maintained its

view that the applicant was not entitled to a residence permit on

political or on other grounds.

The applicant then submitted two new medical certificates of

20 December 1989 and 19 February 1990 in which he was described as a

"mental wreck".

On 26 April 1990 the Government rejected the applicant's

appeal agreeing with the views expressed by the National Immigration

Board.

On 9 May 1990 the applicant made a new request for a residence

permit and maintained that the expulsion order should not be carried

out. On 11 May 1990 this request was rejected by the Immigration

Board.

On 31 August 1990 another request was made by the applicant.

He invoked a new medical certificate issued on 27 August 1990

indicating that his mental situation was still critical. On

4 September 1990 the Immigration Board rejected the applicant's second

request.

On 14 September 1990 the applicant asked for a re-opening of

the proceedings requesting that the Government's decision of 26 April

1990 be quashed and the matter be transmitted to the National

Immigration Board for a re-examination.

On 19 October 1990 the Supreme Administrative Court

(Regeringsrätten) turned down the applicant's request. According to

the Court the applicant had not substantiated any facts that could

constitute grounds for a re-opening of the proceedings.

COMPLAINTS

The applicant complains that his expulsion to Bangladesh would

amount to a violation of Article 3 of the Convention because of his

health problems, in that he is facing a death sentence there and in

that it is likely that he would be subjected to torture and inhuman

treatment if returned.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 26 October 1990 and

registered on 5 November 1990.

On 7 November 1990 the Commission decided to invite the

respondent Government to submit written observations on the

admissibility and merits of the application. Furthermore, it was

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 deport the applicant to Bangladesh until the Commission had had an

opportunity to examine the application further.

The Government's observations were submitted on 28 November

1990 and 30 January 1991. The applicant has not submitted any

observations in reply but has requested the Commission to decide the

case on the basis of the available information.

THE LAW

The applicant complains that he runs the risk of being

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

Convention should he be deported to Bangladesh.

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

"No one shall be subjected to torture or to inhuman

or degrading treatment or punishment."

The Commission first recalls that according to its established

case-law the right to asylum and the right not to be expelled are not

as such included among the rights and freedoms mentioned in the

Convention but that the expulsion of a person may nevertheless, in

certain exceptional circumstances, raise an issue under the Convention

and in particular under Article 3 (Art. 3) where there are serious

grounds for fearing that the person concerned would be subjected, in

the State to which he is to be sent, to treatment which is in

violation of this Article (see e.g. No. 10308/83, Dec. 3.5.84,

D.R. 36 pp. 209, 231 and No. 10564/83, dec. 10.12.84, D.R. 40 pp. 262,

265).

In the Soering case, the European Court of Human Rights stated

as follows (Eur. Court H.R., Soering judgment of 7 July 1989, Series A

no. 161, pp. 35-36, para. 91):

"In sum, the decision by a Contracting State to extradite a

fugitive may give rise to an issue under Article 3 (Art. 3),

and hence engage the responsibility of that State under the

Convention, where substantial grounds have been shown for

believing that the person concerned, if extradited, faces

a real risk of being subjected to torture or to inhuman or

degrading treatment or punishment in the requesting country.

The establishment of such responsibility inevitably involves an

assessment of conditions in the requesting country against

the standards of Article 3 (Art. 3) of the Convention."

In the Commission's view, this test also applies to cases of

expulsion. Consequently, it must be examined whether there are

substantial grounds for believing that the applicant faces a real risk

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

Convention, if deported to Bangladesh. Such treatment must attain a

certain level of severity if it is to fall within the scope of this

provision. The assessment of this level depends on all the

circumstances of the case, such as, for example, the nature and

context of the treatment or punishment, the manner and method of its

execution, its duration, its physical or mental effects (cf. Eur.

Court H.R., Soering judgment, loc. cit., with further references).

In the present case the applicant maintains that the treatment

he received while in Bangladesh made him mentally ill and he has also

referred to the death sentence which he maintains awaits him if

returned.

The Government contend that the applicant's submissions

concerning his treatment in Bangladesh are not credible. According to

the Government there was no shooting in Dinajpur on 10 November 1987

at all and the judgment which the applicant claims has been rendered

against him is a falsification, a fact that the Government have

verified through their Embassy in Dhaka. Furthermore the Government

submit that on 6 December 1990 the Government of Bangladesh was

overthrown by, among others, the Awami League in which the applicant

claims to have been active. An interim Government has taken over and

general elections have been scheduled. Accordingly there exists no

risk of the applicant being persecuted if returned to Bangladesh.

The Commission notes that the general situation in

Bangladesh has recently changed considerably. The applicant's alleged

political opponents are no longer in power whereas new general

elections have taken place, inter alia on the basis of demands from

the party to which the applicant claims to belong. In these

circumstances the Commission does not find that the general situation

in Bangladesh is such that the applicant's expulsion to this country

would as such be a violation of Article 3 (Art. 3) of the Convention.

In order to raise an issue under this provision there should therefore

be some substantiation of a specific risk of treatment contrary to

Article 3 (Art. 3).

The Commission has examined the applicant's submissions and

documents in support of such an allegation. However, from the

information available it does not conclude that there exists a

substantial risk that the applicant would be subjected to treatment

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

Bangladesh at the present time.

The Commission has not overlooked the fact that the

applicant has, according to the medical certificates submitted,

developed certain mental problems and is in need of treatment. As

regards this particular problem the Government submit that the

applicant's medical condition will be taken into account when it comes

to an enforcement of the expulsion order. In these circumstances the

Commission is satisfied that the applicant's health problems would not

make an expulsion to Bangladesh a measure contrary to Article 3

(Art. 3) of the Convention either.

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 unanimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C. A. NØRGAARD)

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