Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 15658/89

by Abdel-Qader Hussein Yassin MANSI

against Sweden

The European Commission of Human Rights sitting in private

on 7 December 1989, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A. WEITZEL

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

Mrs. G.H. THUNE

Sir Basil HALL

MM. C.L. ROZAKIS

L. LOUCAIDES

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 19 October 1989

by Abdel-Qader Hussein Yassin Mansi against Sweden and registered

on 19 October 1989 under file No. 15658/89;

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

Rules of Procedure of the Commission;

Having regard to the Government's written submissions dated

24 October, 3, 22 and 28 November 1989 and the applicant's written

submissions dated 9 November 1989 as well as the parties' oral

submissions at the hearing on 7 December 1989;

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 Jordanian citizen of Palestinian origin,

born in 1946. He has been deported to Jordan. The applicant is

represented before the Commission by Mr. Per Stadig, a lawyer

practising in Stockholm.

On 18 April 1987 the applicant arrived in Sweden. He asked for

political asylum in Sweden and requested a residence and a work

permit. He stated that for political reasons he could not return to

Jordan.

On 11 April 1988 the National Immigration Board (statens

invandrarverk) in accordance with Section 69 of the 1980 Aliens Act

(utlänningslagen) decided to transfer the applicant's case to the

Government for a decision. The Board, having regard to an opinion

submitted by the National Police Board (rikspolisstyrelsen) on

5 February 1988, found that there were special reasons to let the

Government decide the matter and gave its opinion on the issue to be

decided by the Government. It considered that Section 3 of the 1980

Act could not be applied in the applicant's case and that he was not a

refugee according to the 1951 Geneva Convention on the Legal Status of

Refugees. The Board did not exclude, however, that the reasons given

by the applicant against his expulsion to Jordan were such that,

according to Section 6 of the 1980 Act, he should not be refused the

right to remain in Sweden.

On 20 April 1989 the Government refused the applicant's

request and decided to expel him. They furthermore decided to

prohibit him from returning to Sweden before 1 May 1991. Having

regard inter alia to the opinion of the National Police Board, the

Government found that the reasons invoked by the applicant were, in

important respects, not credible. He could not be considered to be a

refugee according to Section 3 of the 1980 Act or according to the

1951 Geneva Convention and there were no such reasons to let him

remain in Sweden as envisaged by Section 6 of the Act.

On 12 May 1989 the Police Authority of Stockholm referred the

matter of the enforcement of the expulsion order to the National

Immigration Board. Before the Board the applicant invoked the results

of a medical examination of 11 May 1989. He alleged that he risked

political persecution in Jordan and that he had previously been

imprisoned and tortured. The examination had been carried out by the

medical expert, Dr. Sten W. Jakobsson, and the psychiatrist,

Dr. Per Borgå. In his opinion Dr. Jakobsson states that there is a

wound on the applicant's chest with the typical appearance of a not

too old electrical injury. He also states that the nail on one of the

applicant's toes is missing and that on another toe there is a scar

that well matches with the injury the applicant alleges. In a

psychiatric opinion Dr. Borgå states that the applicant has made a

completely credible and detailed statement about torture, which is

supported by his mental reactions while making the statement, as well

as by the results of the physical examination.

The National Immigration Board in an opinion of 21 June 1989,

while transferring the case to the Government, stated that the

circumstances of the case were such that the applicant, having invoked

particular reasons against returning to Jordan, should enjoy the

protection of Section 6 of the Act. The Board proposed that the

Government revoke the expulsion order.

On 18 October 1989 the responsible Minister decided that the

applicant should be taken into custody and on 19 October 1989 the

Government found that there were no obstacles against the enforcement

of the expulsion of the applicant. The Government noted that the

applicant had not prior to the decision to expel him alleged that he

had been tortured. They found that neither the explanation he had

given for this behaviour, nor the allegation of torture, were

credible. The Government furthermore pointed out that the applicant

had given contradictory information as to the length of his

imprisonment and they found, making an overall assessment of the facts

of the case, that the applicant's allegation of political persecution

was not credible.

After the introduction of the present application to the

Commission and after the decision of the Commission's President to

indicate to the respondent Government that it was desirable not to

deport the applicant until the Commission had had an opportunity to

examine the application, the applicant lodged a fresh request for a

residence permit with the National Immigration Board. This request

was refused on 20 October 1989.

On 21 October 1989 the applicant was expelled to Jordan.

After his expulsion the applicant has met a representative of

the Swedish Embassy at Amman and a representative of Amnesty

International. He has told them that after his arrival at Amman

airport he was arrested by the security police. He was interrogated,

ill-treated and tortured for about one week. He stayed some days in

a hospital and was then set free on 5 or 6 November with the duty to

report daily to the security police headquarters in Amman.

COMPLAINTS

1. The applicant alleges that there has been a violation of

Article 3 of the Convention on the ground that his expulsion to

Jordan involved a risk that he would be detained and tortured in the

way he has been tortured before.

2. The applicant alleges that the Government violated Articles 1

and 25 of the Convention when they deported him in spite of the

indication by the Commission's President under Rule 36 of the Rules of

Procedure.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 19 October 1989 and

registered on the same day.

On 19 October 1989, at 15.50 hours, the President of the

Commission decided, in accordance with Rule 28 para. 3 of the

Commision's Rules of Procedure, to communicate the application to the

respondent Government and invite them to submit written observations

on the admissibility and merits of the application.

The President also decided, in accordance with Rule 36 of the

Commission's Rules of Procedure, to indicate to the Government that it

was desirable in the interest of the parties and the proper conduct of

the proceedings before the Commission not to deport the applicant to

Jordan until the Commission had had an opportunity to examine the

application at its forthcoming session from 6 to 10 November 1989.

The Agent of the Government was informed by telephone on the

same day, at 16.10 hours, of the President's decision. At 17.38 hours

the Commission confirmed the said indication by telefax.

By letter of 24 October 1989 the Government informed the

Commission that the applicant had been expelled on 21 October 1989,

and made certain submissions.

The Government's observations were received by letter dated

3 November 1989 and the applicant's observations were dated

9 November 1989.

On 9 November 1989 the Commission decided to invite the

parties to a hearing on the admissibility and merits of the

application.

The Commission further decided, in accordance with Rule 36 of

its Rules of Procedure, to indicate to the Government that it is

desirable in the interest of the parties and the proper conduct of the

proceedings before the Commission that the Government take measures

which will enable the applicant to return to Sweden as soon as

possible.

By letter of 22 November 1989 the Government informed the

Commission that they had transmitted the Commission's indication under

Rule 36 to the National Immigration Board.

On 28 November 1989 the Government submitted additional

written observations.

The hearing before the Commission took place on 7 December 1989.

The Government were represented by their Agent, Mr. Hans Corell,

Ambassador and Under-Secretary at the Ministry for Foreign Affairs, as

well as Mr. Erik Lempert, Permanent Under-Secretary at the Ministry of

Labour, and Mr. Pär Boquist, Legal Adviser at the Ministry for Foreign

Affairs, as advisers. The applicant was represented by his counsel

Mr. Per Stadig.

THE LAW

1. The applicant alleges that there has been a violation of

Article 3 (Art. 3) of the Convention on the ground that he was expelled to

Jordan in a situation where there was a risk that he would be

subjected to treatment prohibited by Article 3 (Art. 3) in that country.

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

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

degrading treatment or punishment."

The Government submit that the applicant has changed his story

several times. Only at a late stage has he mentioned anything about

torture. His allegations that he has suffered torture in Jordan are

not credible. At the time of the expulsion the Government had

available relevant and reliable information about the current

situation in Jordan. There was no reason to believe that the

applicant would be subjected to treatment contrary to Article 3 (Art.

3) of the Convention in Jordan. For these reasons, the Government

submit that the application should be rejected as being manifestly

ill-founded.

The Commission considers that the main issue is whether the

applicant's expulsion to Jordan violated Article 3 (Art. 3) of the Convention

on the ground that, at the time of the expulsion, there existed

substantial grounds for believing that he faced a real risk of being

treated contrary to Article 3 (Art. 3) of the Convention in Jordan. The

Commission has carried out a preliminary examination of this issue in

the light of the parties' submissions. It considers that the issue

raises questions of fact and law which are of such a complex nature

that their determination should depend on an examination of the merits.

This complaint cannot therefore be considered manifestly

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

Convention and no other ground for declaring it inadmissible has been

established.

2. The applicant also alleges that Sweden's failure to

comply with the indications under Rule 36 of the Commission's Rules of

Procedure hinders the effective exercise of his right to have his

case properly examined by the Commission. He submits that Sweden has

violated Articles 1 and 25 (Art. 1, 25) of the Convention.

Article 1 (Art. 1) of the Convention reads:

"The High Contracting Parties shall secure to

everyone within their jurisdiction the rights and

freedoms defined in Section 1 of the Convention."

Article 25 para. 1 (Art. 25-1) of the Convention reads:

"The Commission may receive petitions addressed to the Secretary-

General of the Council of Europe from any person ... claiming

to be the victim of a violation by one of the High Contracting

Parties of the rights set forth in this Convention, provided that

the High Contracting Party against which the complaint has been

lodged has declared that it recognises the competence of the

Commission to receive such petitions. Those of the High

Contracting Parties who have made such a declaration undertake

not to hinder in any way the effective exercise of this right."

The Government submit that there is no obligation under the

Convention to comply with an indication under Rule 36 of the

Commission's Rules of Procedure. They submit that this complaint is

incompatible ratione materiae with the Convention or manifestly

ill-founded.

The Commission considers that the respondent State's failure

to comply with the indications made under Rule 36 of the Commission's

Rules of Procedure raises the question whether there has been a

violation of Article 25 para. 1 (Art. 25-1) of the Convention in

conjunction with Article 1 in view of the special nature of the

alleged violation of Article 3 (Art. 3) of the Convention. This question

involves issues which, in the Commission's view, justify further

examination.

For these reasons, the Commission

DECLARES THE APPLICATION ADMISSIBLE,

without prejudging the merits of the case

RETAINS FOR FURTHER EXAMINATION

the issues arising from the failure to comply with the

indications under Rule 36 of the Commission's

Rules of Procedure

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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MANSI v. SWEDEN

MANSI v. SWEDEN

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