THIRD SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 22556/05 by M. v. Sweden

The European Court of Human Rights (Third Section), sitting on 6 September 2007 as a Chamber composed of:

Mr B.M. Zupančič , President , Mr C. Bîrsan , Mrs E. Fura-Sandström , Mrs A. Gyulumyan , Mr E. Myjer , Mr David Thór Björgvinsson , Mrs I. Berro-Lefèvre, judges , and Mr S. Quesada , Section Registrar ,

Having regard to the above application lodged on 21 June 2005,

Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court and the fact that this interim measure has been complied with,

Having regard to the partial decision of 21 November 2006 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr M. , is a Tunisian national who was born in 1968 and currently lives in Stockholm . He is represented before the Court by Mr Bo Johansson, a lawyer practising in Stockholm .

2 . The Swedish Government (“the Government”) are represented by their Agent, Mr Bengt Sjöberg, of the Ministry for Foreign Affairs.

A. The circumstances of the case

3 . The facts of the case, as submitted by the parties, may be summarised as follows.

1. The background and proceedings before the national authorities

4 . According to the applicant, he entered Sweden on 14 August 2001. However, the Swedish authorities did not become aware of his existence until 12 August 2004, when the police happened to ask him for his personal documents. As he was residing illegally in the country, the police prepared for his immediate expulsion. The following day the applicant applied for asylum, a residence permit and a work permit.

5 . The Migration Board ( Migrationsverket ) held an initial short interview with the applicant on 15 August 2004, and a more extensive one on 16 August 2004.

6 . During the first interview the applicant stated that he grew up in the town of Gafsa , but moved to Tunis in 1991, after he had finished high school. His oldest brother lived in Algeria and was not allowed to return to Tunisia . The applicant was arrested by the police and sometimes subjected to torture.

7 . During the second interview the applicant, represented by counsel, explained, among other things, that his eldest brother moved to Algeria in 1981 to look for work and he married an Algerian woman there. Since 1985 the Tunisian authorities suspected that the brother belonged to a terrorist organisation and constituted a danger vis-à-vis Tunisia . The last time the brother visited Tunisia was in 1985/86. Due to these suspicions, several times the applicant had been detained for a couple of days, during which time he was interrogated about his brother ’ s whereabouts, beaten and tortured. The first time this happened was in 1992. He could not specify how many times he had been interrogated. He lived in Gafsa until 1994. He lived in Tunis from 1994 until 1997/1998 and subsequently moved to Sfax where he lived until 1999. Thereafter, he moved to Gabes, but returned to Tunis around 2000 and lived there until he left the country. Every time he was in Gafsa to visit his mother he was taken to the police station for interrogation. This also happened in Tunis , the last time being at the end of 2000. He showed marks on his head and arm which allegedly were from the torture carried out in 1994/1995. He stated that those were the only physical injuries he had suffered.

8 . Neither he, nor anyone else in his family had been politically active. His brother was not politically active in Tunisia and the applicant did not believe that his brother was active in Algeria either since “he was not that kind of person, who was politically active”. All the applicant ’ s problems were caused by the fact that his brother moved to Algeria and was suspected of Islamic terrorist activities.

9 . The applicant had not been granted a passport, but had managed to arrange for one via contacts. Since he arrived in Sweden he had stayed with his sister, helping out with her gravely handicapped daughter, born in 2001.

10 . In a letter of 18 August 2004 to the Migration Board, the applicant ’ s counsel stated that the minutes from the second interview were correctly recorded, but added that the applicant had also had a difficult social situation in his home country, including been subjected to social repression. Furthermore, the applicant suffered from serious psychological problems, such as nightmares, anxiety, depression and insomnia.

11 . On 25 August 2004 the Migration Board refused to grant the applicant asylum. It found that the fact that the applicant had waited three years before he applied for asylum indicated that he did not consider himself to be in strong need of protection. Moreover, it found the veracity of the applicant ’ s story questionable, notably since he had not himself been politically active and had not been able to submit the name of the organisation to which the Tunisian authorities accused the applicant ’ s brother of belonging. There was no reason to believe that the applicant was of any particular interest to the Tunisian authorities.

12 . The applicant appealed against the decision to the Aliens Appeals Board ( Utlänningsnämnden ), before which he repeated that he had been persecuted because the Tunisian authorities considered that his brother was a terrorist and that consequently, the applicant had been arrested more than twenty times, during which he was tortured. His injuries were still visible although more than nine years had passed since the last time he had been ill-treated. The applicant also invoked bad health and a strong family attachment between him and his niece. He explained that the reason why he had not submitted his asylum application upon entry into Sweden was that he feared being returned to Tunisia immediately.

13 . In a submission of 31 August 2004 the applicant ’ s counsel added that the applicant had been prohibited from leaving Tunisia and that according to new information from the applicant there was now a judgment against him for violating a travel ban. Thus, if he returned to Tunisia he would be arrested, tortured and risk being killed. Counsel thus requested an extension to submit the said judgment. Subsequently, at the beginning of October 2004, the applicant submitted fax copies of three documents in Arabic (appendix nos. I, II, and III) to the Aliens Appeals Board. One of them was allegedly the said judgment.

14 . On 11 October 2004, at a court hearing regarding reconsideration of a detention order against the applicant, a translator was present, whom counsel asked about the three documents, notably whether one of them was a judgment concerning a travel ban. The translator replied in the negative, but stated that one document concerned a judgment imposing a four-year prison sentence on the applicant for membership of a forbidden organisation and another document was a summons to a court hearing.

15 . In a letter of 22 October 2004 to the Aliens Appeals Board, counsel invoked the judgment as proof of the ill-treatment to which the applicant had been subjected and the risks he would face upon return to Tunisia .

16 . The Aliens Appeals Board informed the applicant and his counsel that the documents, including the alleged judgement, would not be formally translated or checked for authenticity since they had been transmitted only as fax copies as opposed to originals. It further noted that the applicant had not provided a satisfactory explanation as to why and how he had been sentenced as alleged or why he had not previously mentioned or submitted the judgment. In reply, on 2 November 2004 counsel maintained that the applicant ’ s relatives had tried in vain to obtain an original of the judgment, according to which the applicant had been accused of being politically active in an illegal organisation called an-Nahdha. However, the court refused to release the judgment in the applicant ’ s absence and the reason why the judgment had not been mentioned before was that it had been passed in the applicant ’ s absence on 4 May 2004 after the court had asserted that the applicant was abroad.

17 . On 2 November 2004, finding that none of the circumstances invoked by the applicant were strong enough to give him asylum status or to grant him a residence permit, the Aliens Appeals Board upheld the Migration Board ’ s decision. More specifically as to the alleged strong family attachment between the applicant and his niece, the Aliens Appeals Board pointed out that the applicant had never lived with his sister in Tunisia, before she was granted a permanent residence permit in Sweden in 1997, nor had he applied for asylum or a residence permit with reference to his family link when he arrived in Sweden.

18 . On 1 December 2004 the applicant submitted a so-called new application for a residence permit to the Aliens Appeals Board, adding that he had been active in the forbidden Islamic organisation an-Nahdha and that the Appeals Board had not given sufficient weight to the judgment against him. He also referred to the human rights situation in Tunisia and emphasised that his attachment to his niece had become very strong, notably after his sister divorced her husband due to domestic violence.

19 . On 15 December 2004, again the Aliens Appeals Board rejected the applicant ’ s application. As to the alleged judgment, referring to its previous finding, the Board gave it little weight as evidence.

20 . On 2 March 2005, the applicant submitted a second so-called new application to the Aliens Appeals Board, enclosing a letter of 27 December 2004, repeated on 25 January 2005, by a Swedish organisation called the Friends of Freedom Association ( Frihets Vänner Föreningen ), and a fax copy of a letter of 20 February 2005 by the Nahdha Party of Tunisia in England. The latter read as follows:

To whom it may concern,

I, Rashid Ghannouchi, Chairman of Nahdha (Renaissance) Party of Tunisia confirm that Mr. M. ( Tunisia ) is a sympathiser of our party. He came under threat because of his thoughts and political activities.

Given the present situation in Tunisia , we consider Mr. M. to be a grave risk of arrest, imprisonment and torture if returned to Tunisia .

Therefore, I would be very grateful if you positively consider his application for political asylum.

21 . By decision of 22 March 2005, the Aliens Appeals Board refused anew to grant the applicant a residence permit.

2 . Request for the expulsion order to be revoked and subsequent information provided by the applicant

22 . On 21 June 2005, immediately before the implementation of the deportation order, the applicant lodged the present application and requested that the Court applied Rule 39 of the Rules of Court. On the same day, following an indication given by the Court, the applicant ’ s deportation was stayed until further notice.

23 . On 8 July 2005 the applicant submitted further information to the Court and enclosed a translation of the aforementioned appendix no. II, which stated as follows:

Ministry of Justice

The District Court in Tunis

Ref. no. 374

To the District Superintendent – the National Guard

Referring to Article 175 ff of the Penal Code, you are requested to communicate to

M. ,

That he has been convicted in absentia by the District Court in Tunis by judgment of 2004-04-05 pursuant to Article 175-332, and sentenced to four years ’ imprisonment for membership of an illegal party.

The Registrar (unreadable signature)

24 . On 27 March 2006, the Migration Board examining the applicant ’ s case on its own initiative, in accordance with a temporary provision of the Aliens Act, found that the applicant could not be granted residence permits under the temporary wording of Chapter 2, section 5 b of the Aliens Act. Before it the applicant had submitted a summons for questioning of 30 July 2005, in Arabic.

25 . On 30 March 2006 the applicant once again applied for a residence permit under the temporary provision of the Aliens Act. The application was rejected by the Migration Board on 22 August 2006.

26 . Before the Court the applicant alleged, inter alia , that he was introduced to an ‑ Nahdha through his older brother at the end of the 1980s, and that his brother had to flee to Algeria by the time the applicant got involved in the party. He worked for the party by distributing messages, mail and leaflets. He was regularly arrested for periods between three and fourteen days and ill-treated. At some point there was a nationwide warrant against him and in 1995 he was detained for one and a half months. In 1996 he moved to the country side around Tunis and had agricultural jobs. Thereafter, he was no longer politically active but he remained in contact with some of the Nahdha party members. At the end of the 1990s he contemplated leaving the country but did not do so until 2001. Before the Court, the applicant also submitted the original of the letter of 20 February 2005 by the Nahdha Party of Tunisia in England . It had been difficult to obtain the Tunisian documents. They were not acquired by the applicant but by his sister and brother-in-law living in Sweden , with the assistance of the Friends of Freedom Association, and with the help of a lawyer hired by the applicant ’ s mother. Thus, the documents were transmitted by fax. It was not possible to send the original by mail until later.

3. Subsequent information provided by the Government

27 . Providing various examples, the Government pointed out that most of the applicant ’ s statements before the Court were new to them and not consistent with the information submitted previously before the Swedish migration authorities.

28 . Moreover, in February 2007, the Government requested the Economic and Commercial Section of the Swedish Embassy in Tunis to provide certain information regarding the documents submitted by the applicant and allegedly issued by Tunisian authorities. Via an attorney in Tunis , who submitted a report on 7 March 2007, the following was submitted among other things. Under Tunisian procedural law it was prohibited for any person (irrespective of his or her occupation or authority), who was not a party to the lawsuit or who had not intervened during the legal case (as an expert or a lawyer of one of the parties to the legal matter) to have access to the legal file. Hence, it was not possible to verify or disprove by this means, whether the invoked documents existed de facto . However, there were several irregularities in the documents invoked by the applicant. More importantly, as regards the three documents invoked by the applicant before the Aliens Appeals Board, it was established that none of them was a judgment. Instead appendix I, II, and III were respectively a summons to a court hearing, an order of service and a certificate of service of a judgment. The two latter documents contained references to a judgment against the applicant regarding membership of a forbidden organisation.

B. Relevant domestic law and practice

29 . A new Aliens Act (SFS 2005:716), replacing the 1989 Aliens Act, entered into force on 31 March 2006. The Act establishe d a new system for examining and determining applications for asylum and residence permits. While the Migration Board continue d to carry out the initial examination, an appeal against the Board ’ s decision was determined by one of the three new migration courts. The Migration Court of Appeal was the court of final instance. It examine d appeals against the decisions of the migration courts, provided leave to appeal was granted. Upon the entry into force of the new Act, the Aliens Appeals Board ceased to exist. The Migration Board act ed as the alien ’ s opposing party in proceedings before the courts.

30 . The provisions mainly applied in the present case were to be found in the 1989 Aliens Act, now repealed. In accordance with the Act, an alien staying in Sweden for more than three months had to, as a rule, have a residence permit (chapter 1, section 4). A residence permit could be issued, inter alia, to an alien who, for humanitarian reasons, was to be allowed to settle in Sweden (chapter 2, section 4). Serious physical or mental illness could, in exceptional cases, constitute humanitarian reasons for the granting of a residence permit.

31 . An alien who was considered to be a refugee or otherwise in need of protection was, with certain exceptions, entitled to a residence permit in Sweden (chapter 3 , section 4). The term “refugee” referred to an alien who was outside the country of his nationality owing to a well-founded fear of being persecuted for reasons of race, nationality, membership of a particular social group, or religious or political opinion, and who was unable or, owing to such fear, unwilling to avail himself of the protection of that country. This applied irrespective of whether such persecution was at the hands of the authorities of the country or whether those authorities could not be expected to offer protection against persecution by private individuals (chapter 3 , section 2). An “alien otherwise in need of protection” denoted, inter alia , a person who had left the country of his nationality because he had a well-founded fear of being sentenced to death or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment (chapter 3 , section 3 , subsection 1). By making that a separate ground for granting a residence permit, the legislature had highlighted the importance of such considerations. The correspondence between national legislation and Article 3 of the Convention had been emphasised as a result.

32 . In enforcing a decision on refusal of entry or expulsion, the risk of torture and other inhuman or degrading treatment or punishment was taken into account. In accordance with a special provision on impediments to enforcement, an alien could not be sent to a country where there were reasonable grounds for believing that he would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment (chapter 8, section 1). In addition, he could not, in principle, be sent to a country where he risked persecution (chapter 8, section 2).

33 . Until 15 November 2005 an alien who was to be refused entry or expelled in accordance with a decision that had gained legal force could be granted a residence permit if he filed a so-called “new application” with the Aliens Appeals Board based on circumstances which had not previously been examined in the case concerning refusal of entry or expulsion. A residence permit could then be granted if the alien was entitled to a residence permit under chapter 3 , section 4 , of the Act or if it would be contrary to the requirements of humanity to enforce the refusal-of-entry or expulsion decision (chapter 2, section 5 b, in its wording before 15 November 2005).

34 . Amendments to chapter 2, section 5 b, of the 1989 Aliens Act entered into force on 15 November 2005, whereby a new legal remedy of a temporary nature was introduced. The new procedure for obtaining a residence permit replaced the rules relating to new applications for a residence permit laid down in chapter 2, section 5 b, in its previous wording. Furthermore, the amendments to the 1989 Act introduced additional legal grounds for granting a residence permit to aliens against whom a final expulsion order had been made. The object of these temporary amendments was to grant residence permits to aliens who, inter alia , had been in Sweden for a very long time or where there existed “urgent humanitarian interests” ( humanitärt angeläget ). Special consideration was given to the situation of children. The temporary provisions remained in force until the new Aliens Act entered into force on 31 March 2006. The Migration Board continued, however, to examine applications which it had received before that date but had not yet determined .

C. Relevant background material

35 . The US Department of State, Tunisia, Country Reports on Human Rights Practises, 2006, stated, inter alia , of relevance to the present case:

“... The government continued to commit serious human rights abuses. There were significant limitations on citizens ’ right to change their government. Members of the security forces tortured and physically abused prisoners and detainees. Security forces arbitrarily arrested and detained individuals. Authorities did not charge any police or security force official with abuse during the year. Lengthy pre-trial and incommunicado detention remained a serious problem. The government infringed on citizens ’ privacy rights, continued to impose severe restrictions on freedom of speech and of the press, and restricted freedom of assembly and association. The government remained intolerant of public criticism and used intimidation, criminal investigations, the court system, arbitrary arrests, residential restrictions, and travel controls (including denial of passports), to discourage criticism by human rights and opposition activists. Corruption was a problem. ...

c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment

The law prohibits such practices; however, according to human rights organizations, security forces tortured detainees to elicit confessions and discourage resistance. The forms of torture and other abuse included: sleep deprivation; electric shock; submersion of the head in water; beatings with hands, sticks, and police batons; suspension, sometimes manacled, from cell doors and rods resulting in loss of consciousness; and cigarette burns. According to Amnesty International (AI), police and prison officials used sexual assault and threats of sexual assault against the wives of Islamist prisoners to extract information, intimidate, and punish.

Charges of torture in specific cases were difficult to prove. Authorities often allegedly denied victims of torture access to medical care until evidence of abuse disappeared. The government maintained that it investigated all complaints of torture and mistreatment filed with the prosecutor ’ s office and noted that alleged victims sometimes accused police of torture without filing a complaint, which is a prerequisite for an investigation.

According to defense attorneys and local and international human rights groups, police routinely refused to register complaints of torture. In addition, judges dismissed complaints without investigation and accepted as evidence confessions allegedly extracted through torture. The government has the ability to open an administrative investigation of allegations of torture or mistreatment of prisoners without a formal complaint; however, in those cases the results have not been made public or available to the lawyers of affected prisoners.

Consistent with an effort to extract information or coerce confessions, reports of torture were more frequently associated with the initial phases of interrogation/investigation and pre - trial detention centers more than prisons. Human rights activists, citing prisoner accounts, identified facilities at the Ministry of Interior as the most common location for torture. Political prisoners, Islamists, and persons detained on terrorism-related charges allegedly received harsher treatment than other prisoners and detainees. ...

Prison and Detention Center Conditions

Prison conditions ranged from spartan to poor and generally did not meet international standards. Although overcrowding and limited medical care posed a significant threat to prisoners ’ health, new prison facilities at Mornaguia and greater access to healthcare improved the situation.

According to human rights organizations, prison conditions in the country continued to fall short of minimum adequate standards. Hygiene was extremely poor, and prisoners rarely had access to showers and washing facilities. Sources reported that 40 to 50 prisoners were typically confined to a single 194 square foot cell, and up to 140 prisoners shared a 323 square foot cell. Most prisoners were forced to share beds or sleep on the floor. Current and former prisoners reported that inmates were forced to share a single water and toilet facility with more than 100 cellmates, creating serious sanitation problems. Contagious diseases, particularly scabies, were widespread, and prisoners did not have access to adequate medical care. Additional discriminatory and arbitrary measures such as restrictions on family visits worsened the conditions of detention, particularly when prisoners sought redress for grievances about treatment and conditions.

On September 9, the government closed the "9 Avril" prison in Tunis and moved prisoners to a new facility at Mornaguia, a suburb of Tunis . The capacity of the new prison was reportedly 5,000 prisoners and designed to remedy serious problems of overcrowding in the 9 Avril prison. Prisoners had previously complained of very poor conditions in 9 Avril, including overcrowding, sanitation problems, and limited access to medical care.

A 2004 LTDH report on the country ’ s prisons entitled "The Walls of Silence" estimated that there were approximately 26,000 prisoners in 29 prisons and seven juvenile detention centers. The report described a number of abuses, alleging that torture and humiliating treatment of prisoners were widespread.

In an April 2005 report, Human Rights Watch (HRW) described the government practice of holding political prisoners in prolonged solitary confinement. During a press conference held in Tunis in April 2005, HRW announced that the government promised not to place prisoners in solitary confinement for more than 10 days, the maximum time allowed for punishment according to the law. Shortly thereafter, the government confirmed that it had eliminated long-term solitary confinement. However, HRW reported that the government continued to keep some political prisoners, most of whom were outlawed Islamist party An-Nahdha leaders, in small-group isolation.

According to prisoner and detainee testimony, prison conditions for women were generally better than those for men. Conditions for detainees and convicts were reportedly the same.

International and local NGOs reported that political prisoners regularly were moved among jails throughout the country, thereby making it more difficult for their families to deliver food to them and to discourage their supporters or the press from inquiring about them (see section 1.b.). The CNLT reported that other inmates were instructed to stay away from political prisoners and were punished severely for making contact with them.

In April 2005 the government reportedly approved access for HRW to make prison visits. Following this verbal agreement, however, HRW submitted a formal request for prison access, but despite multiple communications from HRW, by year ’ s end the government had not responded to HRW ’ s request. In June 2005 the ICRC began conducting prison and detention center visits, following more than a year of negotiations with the government. The International Committee of the Red Cross (ICRC) reported that prison authorities had respected their mission and allowed them to conduct visits without obstacle. According to ICRC the government began to put measures in place to improve conditions, including improved hygienic conditions and access to medical care. In February the ICRC submitted its first intermediary report to the government. The government did not permit media to inspect or monitor prison conditions.

...

Amnesty

Judges and the government exercised their authority to release prisoners or suspend their sentences, often on conditional parole (see section 1.e.).

On February 26, President Ben Ali released 1,298 prisoners from prison and granted "conditional freedom" to 359 others. Among those released were 87 members of the banned Islamist party An-Nahdha, including Hamadi Jebali, the former editor of An-Nahdha ’ s now defunct newspaper al-Fajr , as well as other Islamists. Also among those released were six detainees, known as the Zarzis group, who had been arrested in 2003 for allegedly preparing to commit terrorist attacks. International and domestic human rights NGOs, who have long called for the release of political prisoners, had been particularly vocal about Jebali and the Zarzis group. After release Jebali and members of the Zarzis group complained of subsequent government harassment and excessive restrictions on personal movement due to their administrative control status (see section 2.d.).

On November 4, President Ben Ali released an unannounced number of prisoners in advance of the November 7 national holiday commemorating the President ’ s accession to power in 1987. An-Nahdha later reported on its Web site that 55 of its former members that had been imprisoned in the early 1990s were among those released. Several of those released had been sentenced to life in prison . ...

Political Prisoners and Detainees

The government denied that it held any political prisoners, and there was no definitive information regarding the number, if any, of such prisoners. Human rights organizations alleged that the government had arrested and imprisoned more than 500 persons since 2005 on charges related to a 2003 antiterrorism law, without sufficient evidence that they had committed or planned to commit terrorist acts. Human rights activists and lawyers alleged that many of these detainees were tortured in Ministry of Interior facilities and were forced to sign confessions.

The International Association for the Support of Political Prisoners (AISPP) claimed that approximately 150 political prisoners remained from the caseload of Islamists arrested in the late 1980s and early 1990s. Very few of the prisoners were convicted for acts of violence. Most of those who were identified by international human rights groups as political prisoners or prisoners of conscience were arrested for violating laws that prohibit membership in illegal organizations and spreading false information aimed at undermining public order. Many were arrested for disseminating information produced by organizations such as An-Nahdha. Former political prisoners stated their identity papers were marked in a way that resulted in their receiving harsher treatment. ...”

36 . A report of 2005 by Human Rights Watch, on Tunisia , stated as to “Background on Political Prisoners in Tunisia ”:

“ Government officials have stated repeatedly over the years, and in response to the release of Human Rights Watch ’ s report, Tunisia: Long-Term Solitary Confinement of Political Prisoners, that the country holds no political prisoners or “prisoners of opinion,” only criminals tried and convicted for violating Tunisian law. Human Rights Watch disputes this characterization on two basic grounds: first, that very few of the individuals in question were convicted of involvement in acts of violence; and, second, that they were convicted in trials where their rights to a fair hearing were violated massively.

The vast majority of inmates who are commonly labeled as political prisoners were convicted for alleged connections to the opposition Nahdha party. An-Nahdha was established in 1988 as the successor to Tunisia ’ s Islamic Tendency Movement (Mouvement de la Tendance Islamique), which was founded in 1981 but never obtained legal recognition. An-Nahdha also was denied legal recognition, although the government of President Ben Ali tolerated it until 1991, despite a law prohibiting political parties based on religion. In the 1989 legislative elections, an-Nahdha established itself as the leading opposition movement when its members, prevented by authorities from running on a party ticket, ran as independents and captured fourteen percent of the vote.

The years 1990 and 1991 were marked by scattered violence linked to Islamists, and the start of an arrest campaign against Nahdha members. Party supporters were involved in numerous demonstrations on university campuses that turned violent. In 1991, party supporters were implicated in a fatal arson attack on a branch office of the ruling party in Tunis , an incident that authorities presented as proof of the party ’ s violent intentions. The Nahdha leadership denied authorizing the operation, although they termed it an understandable response to state repression. Three men were sentenced to death for their role in the attack and executed.

After more than a year of arrests among the Nahdha ranks, the government announced in September 1991 the discovery of a plot by the party to assassinate the president by firing a Stinger missile at his plane and overthrow the government. They charged 279 Nahdha leaders and backers, many of whom had already been in jail for months, of plotting the coup. At least 8,000 suspected members of an-Nahdha were arrested since the round-ups began in September 1990, Amnesty International reported in March 1992. Torture of these suspects during interrogation was pervasive, according to both Amnesty International and the Tunisian League for Human Rights.

In the summer of 1992, the 279 alleged coup-plotters were judged in mass trials before two military courts in Tunis . The defendants retracted their confessions, saying they had been tortured. Two hundred sixty-five were convicted and fourteen acquitted in proceedings that human rights monitors denounced as unfair. Forty-six of the defendants received life terms, although many of these were later commuted to thirty years in prison. The verdicts were not subject to appeal and were all confirmed by the Court of Cassation. These defendants comprise between sixty and seventy of the estimated 500 political prisoners being held today in Tunisia .

The government claimed then, and continues to claim, that an-Nahdha is an extremist group, willing to use violence to install a repressive theocracy. An-Nahdha ’ s leadership-in-exile says it routinely condemns violence and is committed to using only democratic and non - violent means to achieving a democratic and tolerant Islamic state. It categorically denies the existence of the coup plot for which its leaders were convicted in 1992.

Since 1991, Tunisia has been largely free of political violence. The only fatal attack attributed to Islamists was the April 2002 truck bomb that targeted a synagogue in Djerba, killing twenty-one. The suicide bomber was Tunisian. Al-Qaida claimed responsibility for the attack; the Nahdha party, along with other Tunisian political parties, condemned it; and no evidence has been disclosed linking the attack to an-Nahdha.

Nahdha leaders say the absence of political violence in Tunisia reflects their movement ’ s commitment to non - violence despite the harsh repression it has suffered. Tunisian authorities credit their own vigilance for the years of quiet. In the years since they imprisoned or drove into exile nearly the entire Nahdha leadership, authorities have jailed hundreds of suspected members of the party and of other lesser-known Islamist groups. Their trials generally did not meet international norms for a fair trial. The charges often related not to specific acts of violence but rather to activities such as membership in an “illegal” organization, or collecting funds, attending meetings, or performing unspecified activities on behalf of an “illegal” organization. Others were convicted of graver charges, such as participation in a “criminal gang ... established to prepare or carry out attacks on persons or property.” Still others, notably those who had returned after living abroad, were tried in military courts, even though they were civilians, as permitted by the code of military justice, for the offense of serving "a terrorist organization that operates abroad" (Article 123). Convictions by military courts are not subject to appeal. ”

37 . In their report of 2006, published on 2007, the Human Rights Watch stated, inter alia, the following as to Tunisia :

“The government uses the threat of terrorism and religious extremism as a pretext to crack down on peaceful dissent. There are continuous and credible reports of torture and ill-treatment being used to obtain statements from suspects in custody. Sentenced prisoners also face deliberate ill-treatment.

In March [2006] President Ben Ali pardoned or conditionally released some 1,650 prisoners, including 70 members of the banned Islamist party an-Nahdha. In November the president pardoned or conditionally released about 50 more political prisoners, most of them an-Nahdha members. Some were party leaders who had been imprisoned since their mass trial in 1992 on dubious charges of plotting to topple the state. However, the number of political prisoners remained above 350, as authorities arrested scores of young men in sweeps around the country and charged them under the 2003 anti-terror law. Authorities made life difficult for released political prisoners, monitoring them closely, denying them passports and most jobs, and threatening to re-arrest some who spoke out on human rights or politics. ”

38 . The annual report for 2007 by Amnesty International on Tunisia stated, inter alia :

“Freedom of expression and association remained severely restricted. At least 12 people were sentenced to lengthy prison terms following unfair trials on terrorism-related charges, while around 50 others were still on trial at the end of the year. Torture and ill-treatment continued to be reported. Hundreds of political prisoners sentenced after unfair trials in previous years, including prisoners of conscience, remained in prison. Many had been held for more than a decade and were reported to be in poor health. ...

Some 135 political prisoners were released conditionally, 81 of them in February [2006] and the rest in November, following presidential amnesties. Most had been imprisoned for over 14 years because of their membership of the banned Islamist organization, Ennahda (Renaissance), after unfair trials before the Bouchoucha and Bab Saadoun military courts in 1992. Approximately 100 other members of Ennahda remained imprisoned, some reportedly in poor health as a result of harsh prison conditions and torture in pre-trial detention many years before. Some were in urgent need of medical treatment. ...”

COMPLAINT

39 . The applicant complain ed under Article 3 of the Convention that he would face a real risk of being exposed to torture upon return to Tunisia .

THE LAW

40 . The applicant complain ed that his expulsion to Tunisia would involve a violation under Article 3 of the Convention , which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

41 . The Government submitted that the documentation and circumstances invoked by the applicant, be it the general situation in Tunisia or the applicant ’ s personal situation, did not suffice to show that there were substantial grounds for believing that the applicant would face a risk of treatment contrary to Article 3 upon return to Tunisia .

42 . Providing several examples, the Government also found reason to call into question the applicant ’ s credibility and the veracity of his claims. They noted in this respect that his story had escalated at each stage of the proceedings, notably in relation to his initial claim that he was never politically active. Subsequently, however, he successively embroidered on his alleged political activities. He has not offered any explanation as to why those claims were not made at an earlier point of time. In addition, the applicant ’ s explanations contained many discrepancies, for example as to the latest information that his brother introduced him to an-Nahdha at the end of the 1980s and that by the time the applicant got involved in the organisation his brother had moved to Algeria. Previously, however, the applicant stated that his brother had not been back to Tunisia since 1986, which should be compared with the fact that an-Nahdna was established only in 1988.

43 . It should also be taken into account that the applicant neglected to apply for asylum or a residence permit until he was facing immediate expulsion apparently three years after his entry into Sweden and that he has not submitted any evidence of value to support his claims. Thus, he failed to submit any originals of the Tunisian authority documents invoked and he never submitted any medical statements as to the alleged torture. In addition, as to the invoked fax copies in Arabic, it turned out that they contained various irregularities and more importantly, that none of the documents were a judgment as otherwise claimed by the applicant. Therefore, in the Government ’ s opinion, the documents allegedly issued by Tunisian authorities were not authentic.

44 . Furthermore, the Government gave little weight to the letter, allegedly issued by the an-Nahdha party, since it was issued three years after the applicant had left Tunisia , it contained no information as to what political activities the applicant had engaged in or how the issuer knew each sympathiser and member of the party, or the applicant for that matter.

45 . Nevertheless, even if the applicant ’ s account of his involvement with an ‑ Nahdha was accurate, he had still not shown ground for believing that he will run a real and personal risk of being subjected to treatment contrary to Article 3 of the Convention. In this respect the Government recalled that according to the applicant ’ s latest statements, his political activities were carried out as long ago as in 1996 and thereafter he was living and working in the countryside until he left Tunisia in 2001. Hence, it could legitimately be contended that whatever interest the Tunisian Government had had in the applicant at the relevant time, their interest would have ceased by now, ten years later.

46 . The applicant maintained that due to his political background and the suspicion of being a member or sympathizer of the illegal an-Nahda party, he would face a severe risk of being subjected to torture and other forms of inhuman and degrading treatment if returned to Tunisia .

47 . As to the general situation, the applicant submitted that even if there had been some improvements concerning the human rights situation in Tunisia during recent years, the repression against persons suspected to be an ‑ Nahdha activists or involved in Islamic political movement were still harsh, and many suspected activists were still imprisoned under severe circumstances which included being subjected to torture and other forms of ill-treatment.

48 . The applicant was a sympathizer of the forbidden Islamic party an-Nahdha and was therefore frequently detained by the police and subjected to physical violence. Consequently, he had to take internal refuge in Tunisia by hiding in rural areas. Eventually, however, the hiding became precarious and he succeeded in leaving the country. His account of his situation has been supported by evidence which, as far as he knew, was authentic. Moreover, as to the lack of medical evidence, he recalled that most of the physical wounds stemming from the violence to which he was subjected to some twenty years ago have healed already. Moreover, he reiterated that he has lived in Sweden illegally without access to public medical care and that private care was beyond his budget.

49 . With regard to the Government ’ s view that the applicant ’ s story had escalated during the proceedings and that its veracity was doubtful, the applicant pointed out that it had to be taken into consideration that he had suffered hardship in Tunisia as well as in Sweden . He has had to stay in hiding for many years, constantly fearing arrest. Moreover, if there were incoherent and inconsistent elements in his story that could be explained by the fact that he had been subjected to torture and accordingly suffered mentally.

50 . The Court reiterates that Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens. However, the expulsion of an alien by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person in question, if deported, would face a real risk of being subjected to treatment contrary to Article 3 in the receiving country. In these circumstances, Article 3 implies the obligation not to deport the person in question to that country (see, among other authorities, H.L.R. v. France , judgment of 29 April 1997, Reports of Judgments and Decisions 1997-III, p. 757, §§ 33-34).

51 . While aware of the occurrence of reports of human rights violations in Tunisia , the Court has to establish whether the applicant ’ s personal situation is such that his return to Tunisia would contravene the Convention. In this respect, it is of importance to assess the general credibility of the statements made by him before the Swedish authorities and during the present proceedings.

52 . The Court acknowledges that, due to the special situation in which asylum seekers often find themselves, it is frequently necessary to give them the benefit of the doubt when it comes to assessing the credibility of their statements and the documents submitted in support thereof. However, when information is presented which gives strong reasons to question the veracity of an asylum seeker ’ s submissions, the individual must provide a satisfactory explanation for the alleged inaccuracies in those submissions (see, among others, Collins and Akasiebie v. Sweden (dec.), application no. 23944/05, 8 March 2007 and Matsiukhina and Matsiukhin v. Sweden (dec.), no. 31260/04, 21 June 2005). In the present case the Court is struck by various irregularities and inconsistencies in the applicant ’ s story, of which at least the following should be mentioned.

53 . Firstly, the applicant failed to apply for asylum immediately upon his entry into Sweden . According to his own account, he lived illegally in the country for approximately three years before the police happened to ask him for his personal documents. Only at that time did he request asylum. The applicant has e xplained that the reason why he did not previously submit his asylum application was that he feared being returned to Tunisia . Recalling, however, that the applicant ’ s sister had been granted a residence permit in Sweden in 1997, the Court finds it difficult to imagine that the applicant had not made any enquiries as to asylum status and asylum proceedings before his departure from Tunisia , or at least after having entered Sweden . Thus, it finds it likely, as the Migration Board pointed out in their decision of 25 August 2004, that the fact that the applicant waited three years before he applied for asylum indicated that he did not consider himself to be in a strong need of protection.

54 . Secondly, when in August 2004 the applicant finally did request asylum, he did not invoke political engagement as a motive for his application. On the contrary he stated that he had not been politically active in Tunisia . His problems were caused solely by the fact that his brother, who had moved to Algeria in 1981, had been suspected since 1985 of Islamic terrorist activities by the Tunisian authorities. Due to these suspicions, several times the applicant had been detained for a couple of days, during which he was interrogated about his brother ’ s whereabouts, beaten and tortured. The applicant explained that his brother had not been politically active in Tunisia and he did not believe that his brother was active in Algeria either.

55 . Thirdly, having received the Migrations Board ’ s decision of 24 August 2004 against him, before the Aliens Appeals Board the applicant, via his counsel, alleged that he had been prohibited from leaving Tunisia and that according to new information there was now a judgment against him for having violated a travel ban. Thus, if he returned to Tunisia he would be arrested, tortured and risk being killed. In support thereof, he submitted fax copies of three documents in Arabic, one of them allegedly the said judgment. That explanation was changed on 22 October 2004, when the applicant maintained that according to the judgment previously submitted he was imposed a four-year prison sentence for membership of a forbidden organisation.

56 . Fourthly, although submitting to the Aliens Appeals Board on 2 November 2004 that the applicant ’ s relatives had tried in vain to obtain the original of the judgment, which allegedly had been passed on 4 May 2004 in the applicant ’ s absence and according to which the applicant had been accused of being politically active in an illegal organisation called an-Nahdha, the applicant did not submit any information as to whether he had indeed been member of an-Nahdha, why he had been sentenced as alleged, how and when he had learnt of the judgment, and not least how he had obtained the alleged copy of it when the Tunisian court apparently refused to release it in his absence.

57 . Fifthly, the Court notes that for the sake of clarifying the matter before it, at the beginning of 2007 the Government asked a Tunisian lawyer to examine the documents invoked by the applicant. The lawyer concluded that among the documents invoked by the applicant before the Aliens Appeal Board, and subsequent instances, none of them was a judgment as alleged by him. The Court also notes that no plausible explanation has been provided as to how the fax copies of the documents invoked , which apparently refer to the alleged judgment, for example the summons to a court hearing and the order of service, reached the applicant ’ s mother in Tunisia, or a lawyer hired by her, or the applicant ’ s sister in Sweden, without the m or the applicant ever being able to obtain the originals or the alleged judgment for that matter.

58 . Sixthly, according to the applicant ’ s latest explanation, his alleged political activities for the forbidden an ‑ Nahdha party were carried out as long ago as in 1996 and consisted mainly of distributing material. Thereafter, he was living and working, allegedly in hiding, in the countryside until he left Tunisia in 2001. In these circumstances the alleged judgment against the applicant would have been passed eight years after he went in to hiding from the authorities , and more than twelve years after the massive campaign against the an ‑ Nahdha party , which took place in the years between 1990 and 1992, and involved the convictions and impositions of long prison sentences of almost three hundreds members and arrests of thousands of suspected members .

59 . The Court is aware of the invoked letter of 20 February 2005, issued by the chairman of the an-Nahdha Party of Tunisia liv ing in exile in the United Kingdom . According to him the applicant is a sympathiser of the party and came under threat because of his thoughts and political activities. The chairman considered that the applicant was at grave risk of arrest, imprisonment and torture if returned to Tunisia . As pointed out by the Government, however, the letter was issued three years after the applicant had left Tunisia , it contained no information as to what political activities the applicant had engaged in, when, or how the issuer knew each sympathiser and member of the party, or the applicant for that matter. In line with the Aliens Appeals Board ’ s decision of 22 March 2005 and the decisions of 27 March and 22 August 2006 by the Migration Board, the Court therefore agrees that its v alue as evidence is insignificant.

60 . Taking these circumstances into account, the Court finds that the applicant has failed to provide a satisfactory explanation for the irregularities and inconsistencies in his story and cannot but endorse the Government ’ s observations as to the applicant ’ s general credibility.

61 . In conclusion, the Court considers that the applicant has failed to substantiate that he would face a real and concrete risk of being subjected to treatment contrary to Article 3 of the Convention upon return ing to Tunisia .

62 . It follows that the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and therefore must be rejected pursuant to Article 35 § 4 of the Convention.

63 . Accordingly, the application of Rule 39 of the Rules of Court should be discontinued.

For these reasons, the Cou rt unanimously

Declares the application inadmissible.

Santiago Quesada Boštjan M. Zupančič Registrar President