Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 17426/90

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 11 November 1990

by A. against Sweden and registered on 14 November 1990 under file

No. 17426/90;

Having regard to the report provided for in Rule 47 of the

Rules of Procedure of the Commission;

Having regard to the Government's observations submitted on 30

November 1990, 30 January and 31 January 1991 and the observations

submitted by the applicant on 5 December 1990 and on 28 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 1963.

Before the Commission he is represented by Mr. Hans Bredberg,

Stockholm.

The applicant was born in the city of Narangang where he lived

together with his parents and five brothers and sisters. His father

was employed in an oil company and the family's economy was good. His

parents were not politically active and were not members of any

political parties. The same applies to his five brothers and sisters.

The applicant finished primary school in 1982 and he continued

his studies at a college from 1982 to 1984. His parents supported him

financially. In 1984 he was apprenticed to a friend of his in the

textile industry and in 1986 he opened his own shop in Dhaka where he

sold children's clothing.

As regards his political activities, the applicant submits

that he joined the Bangladesh Nationalist Party (BNP) in 1984. This

party was accepted by the then regime in Bangladesh. He was a

secretary in a local division in Narangang and his tasks were to plan

for the future, to organise meetings in the district and to inform

members of the activities. Furthermore, in case of a general strike in

Bangladesh it was his job to organise picket lines. From 1984 to 1988,

the applicant submits, he participated in many demonstrations.

The applicant has never been charged with or convicted of any

political offences in his home country or in any other country but on

25 December 1987 he was arrested in Narangang in connection with a

political meeting within the BNP. He was taken to the local prison

where he was interrogated. He was detained for two days and

interrogated constantly. He was asked about his political activities

and what kind of functions he had. He submits that the interrogations

were followed by beatings with sticks and kicks during the night and

he was threatened with lengthy prison sentences due to his political

activities. The beatings were concentrated around the back and the

knees and other joints but never against the face. The applicant also

submits that he was tortured with cigar burns on his arms. After two

days the applicant was released and no charges were brought against him.

The applicant was arrested again on 20 March 1988 in

connection with another political meeting which was dissolved by the

police. He submits that he was treated in a similar way as described

above and he was released after three days without any charges being

brought against him. Four days later the police came to his home but

while his brother opened the door the applicant left through the back

door and went underground.

From March 1988 until November 1988 he lived with various

relatives and friends in different areas of Bangladesh. He submits

that he decided to leave Bangladesh as he found it unbearable to

remain underground and as he could not meet his parents or pursue his

business. The BNP managed to get a false passport for the applicant

and his father bought him aeroplane tickets. He left Bangladesh on

28 November 1988 on an Aeroflot flight to Stockholm from Dhaka via

Bombay, Karachi, Taskam, Moscow and Copenhagen.

The applicant arrived in Stockholm on 29 November 1988. On

1 December 1988 he applied for a residence permit for political reasons.

On 3 December 1988 he was interrogated by the police in Stockholm and

he explained as indicated above. He did not, however, mention to the

police at this stage that he had been ill-treated and tortured on the

two occasions in 1987 and 1988 when detained by the police in Bangladesh.

On 9 January 1989, the applicant informed the National

Immigration Board (Statens Invandrarverk) that during his arrests in

Bangladesh he had been beaten and kicked as described above. He did

not, however, mention the cigar burns. He also informed the Board

that the police in 1987 had informed his father that the applicant was

suspected of having participated in producing so-called molotov

cocktails. This was another reason why he had gone underground as he

had nothing to do with such production. He was afraid that he would be

detained and convicted on false accusations.

On 16 November 1989 the National Immigration Board rejected

the applicant's request to be permitted to stay in Sweden and ordered

that he should be expelled. The reasons given by the National

Immigration Board were that the information provided by the applicant

to support his claims was exaggerated and not sufficiently strong for

him to be considered a refugee under the Aliens Act (utlänningslagen).

Furthermore, there were no reasons to justify the granting of a

resident's permit. Accordingly, as the applicant was in Sweden without

a resident's permit, he should be expelled under Section 38 of the

Aliens Act.

On 6 February 1990, the applicant appealed against this

decision to the Government. He maintained that he had been tortured in

Bangladesh and he requested an oral hearing in order to be able to

prove his trustworthiness and to show the effects of the torture to

which he had been subjected.

On 4 September 1990, the applicant submitted certain

additional material including photos of the scars found on his arms

and knees. He now maintained that he had sustained cigar burns during

the interrogations in Bangladesh in 1987 and 1988.

On 18 October 1990 the Government rejected the applicant's

appeal. In its decision the Government stated that the applicant had

submitted different information at the various stages of the

proceedings and that he had not submitted any explanation why he had

not previously informed the authorities of the alleged torture. For

this reason, and in making an overall assessment, the Government found

that the applicant's claims of torture because of his political

activities could not be considered credible.

On 1 November 1990 the applicant submitted a new request for

asylum to the National Immigration Board. He referred to his previous

submissions and submitted in addition a medical certificate of

12 October 1990 which read as follows:

(translation)

"(The applicant) from Bangladesh has been in Sweden

approximately twenty-two months. The patient submits that in

his country he studied at the university and had a business.

Politically he worked in Bangladesh for the National Party.

He submits that this was the reason why he was arrested in

1987. He was arrested in the street, was blindfolded and

transported to an unknown place. He was there twenty-four

hours, and subjected to torture with, inter alia, ten burns

from cigarettes on the left arm. On another occasion he was

thrown off a bus by some members of the (then) Government's

party. After these two incidents he remained in the country

eight months, he submits that he went into hiding.

During the examination twelve scars of 1-2 centimetres are

found on the left underarm. He has a 2 x 2 centimetre scar

on the left shoulder, a 9 x 9 centimetre scar on the right

knee and a O.5 x 2 centimetre (scar) on the left knee. The

marks on his left shoulder and extremities derive from the

fall from the bus.

Evaluation and measures to be taken: No reason to believe

that the patient submits false information. His scars on the

left underarm are round and clearly indicate burns from

cigarettes. The patient has been here for twenty-two months

like this and has developed difficulties in sleeping and

depressions. After talking to the patient sufficient reasons

appear for granting the patient a resident permit both for

political and humanitarian reasons. ...".

On 5 November 1990 the National Immigration Board found that

the applicant had not submitted any new evidence which had not already

been examined by the Government. His request for a resident's permit

was accordingly rejected. There was no appeal against this decision.

On 16 November 1990 the local police authority referred the

question of enforcement to the National Immigration Board which

decided on 20 November 1990 that the expulsion order was not to be

carried out before 15 December 1990.

On 7 January 1991 the applicant submitted a new application

for a residence permit to the National Immigration Board. He enclosed

a medical certificate indicating that he had made one suicide attempt

and that a risk of further attempts existed as he was found to be in a

state of depression. On 11 January 1991 the Immigration Board decided

to adjourn the examination of the case pending the outcome of the

proceedings in Strasbourg. On 21 January 1991 the Board furthermore

decided to stay the enforcement of the expulsion order until 11 March 1991.

COMPLAINTS

The applicant complains that his expulsion to Bangladesh would

amount to a violation of Article 3 of the Convention in that it is likely

that he would be subjected to torture and inhuman treatment there.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 11 November 1990 and

registered on 14 November 1990.

On 14 November 1990 the President of the Commission decided to

indicate to the respondent 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.

On 15 November 1990 the President of the Commission, acting

under Rule 34 para. 3 of the Commission's Rules of Procedure, decided,

in accordance with Rule 48 para. 2 (b) of the Rules of Procedure, to

invite the respondent Government to submit written observations on the

admissibility and merits of the application.

The Government's observations were submitted on 30 November

1990 and the applicant's observations in reply were submitted on

5 December 1990. Certain additional information was submitted by the

applicant on 28 January 1991. Additional information was submitted by

the Government on 30 and 31 January 1991.

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 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 political

murders and police brutality occur in Bangladesh whereas the police

officers involved are hardly ever prosecuted therefor. He furthermore

submits that there is no reason to believe that his story is incorrect

despite the fact that he did not give all details immediately upon

arrival in Sweden. His allegations are supported, so the applicant

contends, by the medical certificates submitted in the present case.

The Government contend that the applicant's story is not

credible due to the fact that he submitted different versions during

the examination of his case. Furthermore the Government submit that

on 6 December 1990 the Government of Bangladesh was overthrown by,

among others, the Bangladesh Nationalist Party 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 considers 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.

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)

Menu

A. v. SWEDEN

A. v. SWEDEN

LEXI