Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 15795/89

by R.M.

against Sweden

The European Commission of Human Rights sitting in private

on 16 March 1990, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

L. LOUCAIDES

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 11 November 1989

by R.M. against Sweden and registered on 21 November 1989

under file No. 15795/89;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

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

summarised as follows.

The applicant is a Syrian citizen born in 1948. Before the

Commission he is represented by Mr. Per Stadig, a lawyer practising in

Stockholm.

In December 1977 the applicant was expelled from Sweden to

Syria. Upon his arrival in Syria the applicant was imprisoned and in

prison he had to face torture. Eventually the applicant was

transferred to Syrian military service, from which he fled. He came

to Sweden and, on 24 August 1978, was granted a permit to stay in

Sweden.

After having been convicted of a criminal offence by the Solna

District Court (tingsrätt) on 23 May 1980 the applicant was expelled

from Sweden. The applicant went to France and from there to Lebanon.

The applicant came back to Sweden in November 1987. The

authorities failed to deport him to Lebanon at the time. The question

of the enforcement of the deportation of the applicant was transmitted

to the National Immigration Board (statens invandrarverk) on

3 November 1987. On 20 January 1988 the National Immigration Board

decided that the applicant should be deported to Syria. The applicant

appealed to the Government which in a decision of 18 May 1989 rejected

the appeal.

After the Government's decision the applicant has on two

occasions lodged a fresh request to the National Immigration Board for

a residence permit. The National Board has refused to grant such a

request and to stop the deportation. These decisions are not subject

to appeal.

The most recent decision in the case by the National

Immigration Board is dated 2 November 1989. The decision indicates

that the applicant is now in hiding. It states the following:

"Makdessi is expelled from the Realm with a prohibition to

return here following a judgment by the Solna District Court

of 23 May 1980 which has acquired legal force.

The Government have in their decision of 18 May 1989

confirmed the National Immigration Board's decision of

20 January 1988 that there are no obstacles under

Section 77 or 80 of the old Aliens Act (utlänningslagen)

against enforcement of the expulsion of Makdessi to his

home country Syria.

On 30 August 1989 Makdessi submitted a fresh request for a

residence permit to the National Immigration Board on the

ground that he runs an obvious risk of being subjected to

torture if he is forced to return to Syria. The National

Immigration Board found that Makdessi's application was

based on circumstances which had already been examined in

the case about the enforcement of his expulsion and therefore

rejected his request in a decision of 5 September 1989.

On 11 October 1989 Makdessi submitted again an application to

the National Immigration Board that he be granted a

residence permit and requested a stay of the enforcement.

Makdessi has again invoked as grounds for his application that

he runs a risk of being subjected to torture in his home

country if he is forced to return there. In support of his

application he invokes that also Amnesty International has

made this assessment.

On 13 October 1989 the National Immigration Board decided to

stay, until further notice, the enforcement of the expulsion.

Assessment:

The National Immigration Board considers that both Makdessi's

application and the letter invoked by him from Amnesty

International are based on circumstances which have previously

been examined by the Government in the case about enforcement

of his expulsion. Makdessi's application must therefore be

rejected under Chapter 2 Section 5 paragraph 3 of the 1989

Aliens Act."

The matter of enforcement of the deportation order is now

pending before the police authority of Katrineholm and the applicant's

expulsion is imminent. The applicant has been in contact with Amnesty

International which has investigated his case. The following is

quoted from a letter from the Swedish section of Amnesty International

dated 8 June 1989, addressed to the International Secretariat of

Amnesty International, and which summarises what Mr. Makdessi has told

the refugee co-ordinator of the Swedish section:

"R.M. came for the first time to Sweden in 1975

but his asylum application was rejected and he was sent back

to France from where he had come on his way to Sweden. In

1977 he made another effort to reach Sweden and that time

the Swedish authorities said he didn't have strong enough

reasons for asylum and once more he was expelled, but this

time to Syria. Makdessi had deserted from the Syrian

army and as a consequence he was taken by the Syrian

police as soon as he arrived to Damascus under Swedish

police escort. After being kept at the airport for a few

hours he was taken to Marje police station and from there

the Security Police took over. He was transferred to a very

high building in Damascus (he does not know the name of it)

and there he was heavily beaten and tortured. However he

stayed there only for some days and after that the military

police in Damascus presented him to a military council that

decided that he should do his military service in Aleppo.

The camp he was taken to is called Haneno. He managed to

desert after two months and came back to Sweden through

Lebanon. The arrest and torture took place in December 1977.

Apart from being a deserter and in danger if sent back to

Syria, he is in big danger even in Lebanon and this is

due to the following facts:

In 1975 he became member of the Shamounist party

'National Liberation' and his main occupation was to

hide weaponry in various parts of the area e.g. churches.

His leader was called George Adouan and the activities were

concentrated in the eastern part of Beirut named Tajouni.

He has also been active under Hobeika, but that only

until he discovered the co-operation between Hobeika and

Syria. Hobeika has, according to Makdessi repeatedly, sent

Syrian citizens to Syria, where they are arrested and

tortured.

The party is called Lebanese Resistance Force and his

leader, from whom he received direct orders was called

Marcel Asouf. He is now living in the USA. His

activities with the Lebanese Resistance Force cover the

period 1981-1985.

All this makes Makdessi very much afraid to return to

Lebanon, where he will probably be shot down by Hobeika

people.

There exists even another element that makes an eventual

deportation to Syria dangerous for Makdessi: his uncle,

Abdul Majid Magdoni who has been a minister in Syria

is imprisoned since 1979. He had been a member of the

Naserist Party.

The last time he entered Sweden it was on 27 September 1987

and since then all the authorities have rejected his asylum

application. Now he is going to be sent to Syria within the

coming weeks. We believe that this is due mostly to the

fact that he spent 16 months in jail for narcotic crime in

1980-1981. As far as I understand he was convicted for a

similar crime in Holland in 1976.

In Syria he has never been brought in front of a court and

there exists no court decision against him. He does not

have in his hands any documents relevant to his

descriptions.

As you can understand it is impossible for us to control this

story and if it is true then it seems that it is a case that

AI could support. We would be very grateful to have your

comments and advice."

A letter dated 6 October 1989 from the International

Secretariat of Amnesty International reads as follows:

"Further to this case Amnesty International wishes to

reiterate its concern about the risks to Makdessi's welfare

and safety should he be returned to Lebanon. Although

Amnesty International could make no specific assessment as

to the level or importance of his past political activities,

the Organisation believes that given his past political

background there are reasonable grounds to fear that upon

arrest he would be subjected to torture or ill-treatment by

Syrian forces or Syrian allies in Lebanon. In Amnesty

International's experience victims of torture have included

not only the well-known activists within opposition groups

but also other members or sympathisers who are neither

highly active nor prominent within their groups. Given the

series of human rights violations by Syrian forces as

documented over the years by Amnesty International the

Organisation fears for the safety of R.M.. The

Organisation urges the Swedish authorities to take into

account the provisions of Article 3 of the UN Convention

against Torture (ratified by the Swedish Government in 1986)

which states:

'1. No State Party shall expel, return ('refouler') or

extradite a person to another State where there are

substantial grounds for believing that he would be in danger

of being subjected to torture.

2. For the purpose of determining whether there are

such grounds, the competent authorities shall take into

account all relevant considerations including, where

applicable, the existence in the State concerned of a

consistent pattern of gross, flagrant or mass violations of

human rights.'"

The applicant submits that the immediate background to his

leaving Beirut was an incident in a hospital in Beirut where he was

staying for about one month on account of an osteitis. After a

quarrel with another patient he was brought to the military police

headquarters where he was ill-treated. He was kicked in the head and

on his body and was hit with the butt end of a rifle and lightly with a

whip.

After this incident he decided to leave Beirut. He left by

boat on 5 September 1987 to Larnaca. He flew from Larnaca to Vienna,

then to Munich, then to Milan. He stayed in Italy three weeks and on

27 September he flew to Stockholm via Vienna.

COMPLAINTS

1. The applicant alleges that the decision to deport him to Syria

violates Article 3 of the Convention.

2. The applicant also alleges a violation of Article 13 of the

Convention on the ground that no appeal was available with regard to

the decision of the National Immigration Board of 2 November 1989.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 11 November 1989 and

registered on 21 November 1989.

On 21 November 1989 the President of the Commission, following

the applicant's request that the Commission indicate to the Government

that they should not deport the applicant until the Commission had

examined the application, decided not to give any indication to the

Government under Rule 36 of the Commission's Rules of Procedure.

On 15 December 1989 the Commission examined the application and

decided to adjourn its examination pending the applicant's submission

of his full application, and not to apply Rule 36 in the meantime.

THE LAW

1. The applicant alleges a violation of Article 3 (Art. 3) of the

Convention on the ground that his expulsion to Syria would involve a

violation of Article 3 (Art. 3) of the Convention, which reads:

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

degrading treatment or punishment."

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 to believe that the applicant faces a real risk of

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

Convention, if deported to Syria.

The Commission considers that the general situation in Syria

is not such that any expulsion to Syria would be a violation of

Article 3 (Art. 3) of the Convention. In order to raise an issue under

Article 3 (Art. 3) there must be some substantiation that there exist

a specific risk of treatment contrary to Article 3 (Art. 3) for the

applicant in the particular case. In the present case, the applicant

alleges that he was tortured in Syria in 1977 and has deserted from

the Syrian army as a result of which he is liable to a long-term

imprisonment and is at a real risk of torture if he is returned to

Syria.

The Commission has examined the applicant's submissions and

the documents in support of his application. It notes that a

considerable time has elapsed since the alleged torture in 1977. It

finds that the information available to it is not sufficient to

conclude that there exists a substantial risk that the applicant will

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

Convention if he were returned to Syria.

It follows that this part of the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of

the Convention.

2. The applicant also alleges that he had no effective remedy for

the alleged violation, contrary to Article 13 (Art. 13) of the Convention.

Article 13 (Art. 13) requires a remedy in domestic law only in

respect of a claim of a violation which can be regarded as "arguable"

(cf. Eur. Court H.R., Boyle and Rice judgment of 27 April 1988,

Series A no. 131, p. 23, para. 52). Having found above that the claim

of a violation of Article 3 (Art. 3) of the Convention is manifestly

ill-founded, the Commission similarly considers that the applicant's

claim of a violation cannot be regarded as "arguable" for the purpose

of Article 13 (Art. 13) of the Convention. Consequently, Article 13

(Art. 13) of the Convention does not entitle the applicant to a remedy

in domestic law.

It follows that this part of the application is also

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE

Deputy Secretary to the Commission President of the Commission

(J. RAYMOND) (C.A. NØRGAARD)

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R.M. v. SWEDEN

R.M. v. SWEDEN