FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

A pplication no. 24697/04 by A.B. against Sweden

The European Court of Human Rights ( Fourth Section) , sitting on 31 August 2004 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mr J. Casadevall , Mr S. Pavlovschi , Mr J. Borrego Borrego , Mrs E. Fura-Sandström , Ms L. Mijović, judges , and Mr M. O ’ Boyle , Section Registrar ,

Having regard to the above application lodged on 11 July 2004 ,

Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr. A.B. , is an Iranian national, who was born in 19 62 and lives in Sweden . He i s represented before the Court by M r s . B. Bruks, a University lecturer in Law Science at the Mid-Swedish University in Östersund.

A. The circumstances of the case

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

1. The a sylum case

The applicant belongs to an ethnic minority in Iran called the Baluchis [1] .

On 9 November 1988 the applicant arrived in Sweden with his family, his wife and their two sons, born in 1985 and 1987 respectively, and applied for political asyl um under the name of A.D. , born in 1960.

On the same day, the Immigration Board ( Invandrarverket ) held a first interview with the applicant in which he stated that he had fled from Baluchistan in Iran due to political problems. He c laimed that he was an opponent of Khomeini and the Iranian regime and that he was politically active within the PAY KAR (a leftist movement) . Further, he alleged that he had been imprisoned due to his political activities on two occasions, first in 1981 dur ing two months and then again in 1984 for two years. In September 1988 he and his family had fled to Pakistan where , through smugglers, they had bought f orged Pa kistani passports and visas and tickets for Sweden . The y travelled to Sweden on 7-8 November 1988 and, upon arrival, they threw away the passports since they were forged .

On 29 November 1988 the Immigration Board held a second interview with the applicant where he told about his life and political activities in more detail . He claimed that he had bec o me politically active when the Shah was ousted in 1979 and that as a student he had been involved in an organisation called Sazmane Paykar (a communist party) for which he sold the organisations newspaper, handed out leaflets and painted slogans on walls. He had been arrested for the first time in 1980 and, after a trial, he had been sentenced to six months deportation to another region of Iran , Jahrom. In 1984 he had married and, between 1984 and 1988 he had worked as a driver, delivering products for different stores. He stated that he was not religious, although his parents were Sunni Muslims, but that it had been particularly difficult for him to be politically active since he was a Baluch and the central regime under Khomeini had had several conflicts with the Baluchis. At this point the interview was interrupted and it was not resumed until 5 December 1988 when h e continued his account of events . He stated that after he had returned from Jahrom he had resumed his political activities , although not so openly anymore. In October 1981 he had again been arrested and during the interrogations he had been whipped and placed in very painful positions. He never admitted to anything and, in January 1985, he was released. At that time his political organisation had ceased to exist but he had soon joined another organisation, Baluch Raje Zorombersh (Baluchistan National Movement), which fought for the independence of Baluchistan from Iran . The applicant claimed that he had transported newspapers and leaflets for the organisation in his car while working as a delivery man for various stores. In August 1988 a close associate of his in the organisation had been arrested and the applicant had then decided to flee with his family to avoid being arrested as well. He stated that if he was returned to Iran he would be arrested and imprisoned and probably executed due to his political activities.  

On 18 January 1989 the Immigration Board granted the applicant political asylum and a permanent r esidence permit.

2. The c riminal proceedings and the order of expulsion

In March 1996 the applicant was arrest ed and charged with having murdered his wife. He admitted that he had stabbed her but claimed that it should be considered as manslaughter ( drÃ¥p ). He stated that his wife had wanted a divorce and that she had moved to another apartment with the children. He knew that she was seeing other men. He further asserted that his wife ’ s family in Iran had repudiated her when she demanded the divorce and that her father had told him that he was not a man if he did not kill her. He claimed that he had regretted the act immediately and had called the emergency services . 

O n 26 May 1996 the Malmö District Court ( tingsrätten ) co nvicted the applicant of murder and sentenced him to ten years ’ imprisonment and lifetime expulsion from Sweden . When deciding the ten years ’ imprisonment the District Court took into account the detriment caused to the applicant by the expulsion and reduced the normal prison sentence, which would have been life imprisonment, accordingly.

As concerned the expulsion, the District C ourt had requested that the Immigration Board submit its observations on the matter. In its observations, the Immigration Board stated that the reasons invoked by the applicant at the time when he was gr anted asylum were not such that , according to the current practice, he would have been granted asylum. However, in line with the Immigration Board ’ s practice and the provisions in the Aliens Act, there was no reason to recall his refugee status. On the other hand, the Immigration Board found that there were no impediments to enforcing a possible order to expel the applicant. The District Court also heard a witness called by the applicant who stated that he would be executed in Iran due to his political activities. The court considered that due to the very serious nature of the crime, there were particular reasons for expel ling the applicant.

The applicant did not appeal against the judgment.

Following the conviction, t he applicant lost custody of his sons and they were taken into care by the social authorit ies and placed in a foster home. T hey then had no contact with their father for some years. In December 2000 the applicant was granted permission to call them once a month and to visit them when they were visiting his brother, who live d in Gothenb urg. The children allegedly had a close relationship with their uncle.

On 5 December 2001 the applicant requested the Government, through the Ministry of Justice, to re voke the expulsion order . He informed the Govern ment of his true identity, A.B. , and gave an account of what he stated was his true life story . He maintained that he had been politic ally active within the PAY KAR, distributing news papers and leaflets, organising demonstrations and writing slogans on walls, and that he had been arrested in 1980 and detained for two months before he was sentenced by a revolutionary court to six months ’ deportation to the city of Jahrom . When he returned home, he married and resumed his political activities. During the autumn of 1981 he was again arrested and this time he was tortured during the interrogations. He claimed that he had been whipped, beaten , kicked and placed in very painful positions. After roughly two years ’ detention, he had been released but had to report to the police once a week. His relatives had helped him to buy a small lorry to enable him to work and support his wife. During the summer of 1984 he had decided to flee from Iran and, after careful planning, he had fled with his wife to Pakistan where he was recognised as a refugee by the UN High Commissioner for Refugees. In Novem ber 1985 his first son was born. The applicant alleged that many refugees were killed in Paki stan for which reason he and his family, in February 1986, had travelled to the Netherlands where he had applied for asylum. In October 1987 his second son was born and , in 1988 , his request for asylum was refused by the Dutch authorities. On 8 November 1988 , to avoid being sent back to Iran , the applicant had travelled to Sweden with his family, on forged documents, where he had applied for asylum under the name of A.D .

Before the Government the applicant submitted that he had continued his political activities in Sweden where he had joined the Baluchistan National Movement (BNM) and had become a board member and a member of the editorial board of “Zro mbech”, the organisation ’ s news paper. The applicant requested that the Government examine his reasons for asylum based on the information he had submitted . I n particular, because of his family situation , an expulsion would mean that his sons would be come parentless in Sweden . Last, he claimed that the Iranian authorities were aware of his political activities and that he would be executed because of this if forced to return to his home country. He submitted several documents to support his claims about his political activities, both in Iran and in Sweden , inter alia , of which he submitted t he following to the Court :

On 21 May 2002 , after a request by the Government, the Migration Board ( Migrationsverket ) submitted its observation regarding the matter. It considered that there were no obstacles to expelling the applicant to Iran .

During the summer of 2002 the applicant published a book about his life , in Swedish , which included information about his political activities, experiences from Iranian prisons and criticism of the Iranian regime. He claimed that the content of the book would automatically lead to a very harsh sentence for him if he w ere returned to Iran since he was convinced that the Iranian Embassy in Sweden would have obtained a copy of the book. One thousand copies of the book ha d been printed.

Based on this new information, the Government requested that the Migration Board submit supplementary observations. On 26 August 2002, the Migration Board maintained that the applicant ’ s political activities in his home country as well as the political activities he had performed in Sweden before his imprisonment were not such that they could constitute an impediment to the enforcement of his expulsion to Iran. However, it stated that some of the statements made by the applicant in his book were of such a character that it could not be excluded that the Iranian authorities had noted them and that the applicant might b e apprehended as a result if forced to return. The Migration Board therefore considered that there could be an impediment against enforcing the expulsion for this reason.

On 12 October 2002 the applicant was conditionally released from prison but placed in detention awaiting expulsion following a decision, two days earlier, by the Minister of Justice. However, on the same day, the Minister of Justice had also decided that the applicant should not be expelled until the Government decided otherwise.

On 1 December 2002 the Minister of Justice decided that the applicant should be released from detention.

Apparently, on 28 April 2003 , the applicant participated in a Swedish radio programme whic h discussed the topic of honour- related murders.

In June 2003 the Government requested the Swedish Embassy in Iran to investigate whether the applicant would be at risk if returned to Iran and to submit its assessment on the matter.

On 27 July 2003 the Embassy submitted its answer to the Government. It stated that it was possible that the Iranian authorities were aware o f the BNM ’ s activities outside Iran but that it did not appear that the organisation had any activities or contacts within the country. As concerned the applicant ’ s book, the Embassy made the assessment that it did not contain any information which could be considered as offensive by the Iranian authorities. It noted that the prison conditions in Iran were discussed in the Iranian media and that the applicant ’ s experiences and descriptions of the prisons were outdated. Moreover, the political activities described by the applicant in his book were not current and were depicted in a vague and summary manner. Thus, the Embassy concluded that the applicant would not risk being punished if returned to Iran , neither because of his political activities nor because of his book.

The applicant claimed that the Embassy had not seriously read and considered the content of his book. He had also participated in more radio programmes where he had made critical comments against the Iranian regime and culture. Moreover, he stated that his wife ’ s relatives would kill him if he returned as revenge for having murdered her. Last, he stated that his relation ship with his sons w as impro ving all the time and that he met with them and spoke with them on the phone frequently . In particular, his relation to his younger son was getting stronger and his son had asked to be allowed to live with the applicant.

On 25 September 2003 the Government rejected the applicant ’ s request to have t h e expulsion order re vok ed. The Government found that there was neither any impediment against the enforcement of the expulsion nor any other special reason, as set forth in the Aliens Act, to re voke the expulsion order .

In November 2003 the applicant lodged a new application with the Government, requesting that the expulsion order be re vok ed. He stated that his younger son had had a severe crisis as a result of the Government ’ s rejection since he did not want to lose his father. The younger son s pent every other weekend with his father and had expressed the wish to be allowed to live with him. Th e older son kept his distance from his father but did not want him to be expelled. He submitted a medical certificated written by a Chief Physician at the Children and Youth Psychiatric Clinic in Östersund which stated that consideration should be taken o f the children ’ s difficult situation and need of their father.

On 11 December 2003 the Government rejected the request, finding no reason to change its previous decision.

In January 2004 the applicant lodged yet another application with the Government to have t h e expulsion order re vok ed. He primarily invoked his younger son ’ s deteriorating psychological status which was caused by the fear of losing his father and becom ing parentless. The applicant and his younger son had developed a very close relationship and it would cause irreparable da mage to the son if his father were to be expelled expelled.

On 12 February 2004 the Government rejected the application on the same grounds as previously.    

On 17 August 2004, after a request by the applicant, the President of the Chamber to which the case had been allocated decided, under Rule 39 of the Rules of Court, to indicate to the Swedish Government that it was desirable in the interest of the parties and the proper conduct of the proceedings before the Court not to expel the applicant to Iran until the Chamber had had the opportunity to examine the application on 31 August 2004.

B. Relevant domestic law

Pursuant to C hapter 1, Article 8 of the Penal Code ( Brottsbalken ), a crime may, apart from ordinary sanctions, result in special consequences defined by law. Expulsion on account of a criminal offence constitutes such a special consequence.

Provisions on expulsion on this ground are laid down i n the Aliens Act. According to C hapter 4, section 7 of the Act, an alien may not be expelled from Sweden on account of having committed a criminal offence unless certain conditions are satisfied. Firstly, he or she must be convicted of a crime that is punishable by imprisonment. Secondly, he or she may only be expelled if he or she is in fact sentenced to a more severe punishment than a fine and if (1) it may be assumed, on account of the nature of the crime and other circu ms tances, that he or she will continue his or her criminal activities in Sweden or (2) the offence, in view of the damage, danger or violation involved for private or public interests, is so serious that he or she ought not to be allowed to remain in the country.

Furthermore, under C hapter 4, section 10 of the Act, when considering whether or not an alien should be expelled, the court shall take into account his or her links to Swedish society. As regards aliens who are considered to be refugees and in need of protection in Sweden , they may be expell ed only if they ha ve committed a particularly serious crime and it would entail serious danger for public order and safety to allow them t o remain in Sweden . An alien with refugee status shall be considered as a refugee in need of protection in Sweden unless it is evident that he or she no longer is a refugee with such a need.

Moreover, the court must have regard to the general provisions on impediments to the enforcement of an expulsion decision. Thus, pursuant to C hapter 8, section 1 of the Act, there is an absolute impediment to expelling an alien to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment. Further, a risk of persecution generally constitutes an impediment to enforcing an expulsion decision.

According to Chapter 7, section 16 of the Act, if the Government finds that a judgment or decision to expel a person on account of having committed a criminal offence cannot be executed or if there are otherwise special reasons not to enforce the decision, the Government may repeal, in part or completely, the judgment or decision by the court. The Government may also, in accordance with Chapter 11, Article 13, of the Instrument of Government ( Regeringsformen ) grant clemency or reduce a penal sanction or other legal effect of a criminal act.

COMPLAINTS

The applicant complained that, if expelled from Sweden to Iran , he would face a real risk of being arrested and subjected to treatment contrary to Article 3 of the Convention. He further complained under Article 8 of the Convention that his expulsion from Sweden would violated his right to respect for family life since his youngest son was still a minor and in great need of his father.

THE LAW

1. The applicant complained that the expulsion to Iran would constitute a violation of his right under Article 3 of the Convention as he would face a real risk of being arrested and ill-treated if forced to return. Article 3 provides:

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

The Court observes at the outset 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).

While aware of the occurrence of reports of continuous human rights violations in Iran , including p ersecution of political activist s critical of the regime , the Court has to establish whether the applicant ’ s personal situation is such that his return to Iran would contravene Article 3 of the Convention .

The applicant alleged that he would be imprisoned, tortured and maybe even executed in Iran because of his political activities, both in Iran and in Sweden , and because of the criticism against the regime in Iran which he expressed in his book and in radio programmes in Sweden .

T he Court first observes that the applicant entered Sweden , after having been rejected for asylum in the Netherlands , in November 1988 on forged documents and that he applied for asylum under a false name and provid ed the immigration authorities with, at least partly, untrue information. Moreover, in 1996 the Immigration Board stated that the reasons invoked by the applicant at the time when he was gran ted asylum were not such that , according to the current practice ( in 1996 ) , he would have been granted asylum. It further added that i t found no impediments to enforcing an expulsion order . This opinion was repeated by the Migration Board in May 2002, also having regard to the applicant ’ s political activities in Sweden .

The Court shares this opinion. It finds that the a pplicant ’ s political activities in Iran , and his alleged imprisonment and torture, date more than 20 years back in time and would therefore not attract the attention of the Iranian authorities today. As regards the applicant ’ s political activities in Sweden before his imprisonment, this is now almost 10 years ago and the applicant, apparently, has not renewed his membership or his activiti es with the BNM since his release. The Court therefore considers that the applicant would not face a substantial risk of being persecuted, arrested or ill-treated due to these political activities if he was returned to Iran .

Turning to the applicant ’ s claim th at the criticism which he voiced against Iran and its regime in his book, published in 2002, would lead to his imprisonment or ill-treatment, the Court first observes that t he book is written in Swedish and that only 1,000 copies of the book have been printed. Moreover, the applicant chose to publish the book at a time when he knew that his expulsion was approaching. T he Court has received one copy and notes that the book that it is an autobiography which describes the applicant ’ s life from his birth until almost the end of his imprisonment in Sweden, depicting his experiences and observations through life, including his experiences of both Iranian and Swedish prisons.

According to the Migration Authority ’ s observation in August 2002, it considered that there could be an impediment against enforcing the expulsion because of the character of certain statements made by the applicant in his book. However, the Swedish Embassy in Iran observed in July 2003 that the book did not contain any information which could be considered offensive by the Iranian authorities since the applicant ’ s experiences and activities described in the book were o ld and, moreover, depicted in a vague and summary manner.

The Court, having regard to the very limited number of copies printed, the fact that it is in Swedish and, in particular, that it describes the situation in Iran and Iranian prisons over 20 years ago, is not convinced that the applicant would be persecuted or ill-treated because of the contents of the book if he were returned to his home country.

The Court finds the applicant ’ s claim that he has participated in radio programmes in Sweden during 2003 to be manifestly ill-founded since he has not submitted any evidence to substantiate his claim that, during these programmes, he expressed such criticism against the Iranian regime that it would attract their attention.       

Further, the applicant has claimed that he would face a risk of being killed by his wife ’ s family, as r evenge for h aving murdered her, if he w ere sent back. Here, the Court points out that the applicant before the District Court had submitted that his wife ’ s family in Iran had repudiated her when she demanded a divorce and that his father-in-law had encouraged him to kill her. Under these circumstances, the Court does not find the applicant ’ s claim credible. In any event, he would not be forced to return to the same village in Iran where h is in-laws are living but could settle somewhere else in the country.

Having regard to the above, the Court finds that it has not been established that there are substantial grounds for believing that the applicant faces a real risk of being subjected to treatment contrary to Article 3 of the Convention in Iran.

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

2. The applicant also complained that the expulsion would violat e his right to respect for his family life. He relied on Article 8 of the Convention, which provi des the follow ing :

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The applicant submitted that his younger son , who is still a minor , is in great need of his father and that they have developed a close relationship since the applicant was released from prison. He claim ed that his younger son is receiving psychological help for his fear of losing h is remaining parent. Further, at the moment his older son is keeping his distance from his father but, according to the applicant, this does not mean that he does not need him. Also, the applicant has not been to Iran for 20 years and, besides his two sons, he has his brother and friends in Sweden .

The Court commences by taking judicial notice of the fact that neither of the applicant ’ s sons ha s taken part in the proceedings as an applicant .

It then observ es that the expulsion of the applicant would constitute an interference with his right to respect for his family life, as guaranteed by Article 8 § 1 of the Convention. The Court further finds that the interference had a legal basis in Swedish law, in particular C hapter 1, section 8 of the Penal Code in conjunction with the relevant provisions of the Aliens Act, a nd pursued a legitimate aim, namely the pr evention of disorder or crime , within the meaning of Article 8 § 2.

It remains to be determined whether the interference was “necessary in a democratic society”.

The Court recalls that no right of an alien to enter or to reside in a particular country is as such guaranteed by the Convention. Nevertheless, the expulsion of a person from a country where close members of his family are living may amount to an infringement of the right to respect for family life guaranteed by Article 8 § 1 of the Convention (see, among other authorities, Moustaquim v. Belgium , judgment of 18 February 1991, Series A no. 193, p. 18, § 36).

It is for the Contracting States to maintain public order, in particular by exercising their right, as a matter of well-established international law and subject to their treaty obligations, to control the entry and residence of aliens. To that end they have the power to deport aliens convicted of criminal offences. However, their decisions in this field must, in so far as they may interfere with a right protected under paragraph 1 of Article 8, be necessary in a democratic society, that is to say justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued (see Dalia v. France , judgment of 19 February 1998, Reports 1998-I, p. 91, § 52; Boultif v. Switzerland , judgment of 2 November 2001, Reports 2001-IX, p. 130, § 46; and Jakupovic v. Austria , no. 36757/97, § 25, 6 February 2003, unreported).

Accordingly, the Court ’ s task consists in ascertaining whether the expulsion order in the circumstances struck a fair balance between the relevant interests, namely the applicant ’ s right to respect for his family life, on the one hand, and the prevention of disorder and crime, on the other.

The Court first notes that the applicant has resided in Sweden since he arrived there in November 1988. However, as from March 1996, he has been in detention, and his subsequent stay in Sweden has been due to his serving a prison sentence and, as from October 2002, on account of his awaiting the enforcement of the expulsion order against him.

The applicant ’ s family connection to Sweden consists of his two sons living there, as well as one of his brothers. It appears that the applicant, during the spring of 2003, commenced University studies in sociology in Östersund, where he resides. On the other hand, the rest of the applicant ’ s family, his parents, two brothers and a sister, are all living in Iran .

The Court observes that both sons were born after the applicant left Iran and have lived practically all their lives in Sweden . Following the applicant ’ s criminal conviction, both sons were taken into public care and placed in foster homes and the applicant lost his custody of them. He was eventually granted limited access rights which have increased over the last couple of years. The e ldest son is 19 years old, an adult , and living on his own. A lthough he does not wish to see his father expelled, he has very limited , if any, contact with him. On the other hand, the applicant ’ s younger son , who is 17 years old , has , during the last couple of years, developed a close relationship with his father and, apparently, has been liv ing with him temporarily since July 2004. Further, it has been submitted that the younger son needs his father ’ s support and that he is very afraid of losing his father and becoming “parentless”. However, according to the applicant ’ s own submission, both of his sons have a very good and close relation with their uncle, the applicant ’ s brother, who lives in Gothenburg. Apparently , he has been of great support t o both boys since their father ’ s imprisonment. The Court does not doubt that he would continue to be of help for them if the applicant w ere to be expelled.

Having regard to the above and that one son is an adult and the other nearly an adult, the Court considers that the applicant can keep in contact with them by mail and telephone and by receiving them for visit s in Iran . Thus, if the applicant were to be expelled this would naturally have implications for his relation ship with his sons, a nd his younger son in particular, but not to such an extent that it would make a continued, close relationship between them impossible .

Moreover, in order to decide whether the interference was justified, the interest of the applicant in remaining in Sweden have to be balanced against the public order interests of Sweden on account of the nature and the seriousness of the crime of which t he applicant was convicted, namely the murder of his own wife by sta bbing her to death with a knife. In its judgment the District Court took into account the very serious nature of the crime and found that there were particular reasons to expel the applicant. The Court observes that the applicant did not appeal against the District Court ’ s judgment.   

The Court consid ers that the crime of which t he applicant was convicted is of such a serious nature that his expulsion must be considered to have been justified by weighty public order interests .

Under the circumstances mentioned above, the Court finds that it cannot be considered as disproportionate to the legitimate aim of preventing disorder and crime to enforce the expulsion order . It follows that this part of the application is also manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Cou rt unanimously

Declares the application inadmissible.

Michael O ’ Boyle Nicolas BRATZA Registrar President

[1] The Baluchis originate from Baluchistan , a mountainous desert area comprising a province of Pakistan , part of the Iranian province of Sistan and Baluchistan and a small area of Afghanistan . The Baluchis are Sunni Muslims and speak their own language, Baluchi. The Iranian part of Baluchistan has an area of about 181,600 sq km and, according to estimates in 2002, a population of roughly 2 millions. Information from: www.tiscali.co.uk