FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 22792/03 by Y against Finland

The European Court of Human Rights (Fourth Section), sitting on 16 March 2004 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mrs V. Strážnická , Mr R. Maruste , Mr S. Pavlovschi , Mr L. Garlicki , Mr J. Borrego Borrego , judges , and Mr M. O ’ Boyle , Section Registrar ,

Having regard to the above application lodged on 23 July 2003,

Having deliberated, decides as follows:

THE FACTS

The applicant, Y, born in 1965 and resident in Helsinki , is a Syrian citizen of Kurdish origin. He is represented before the Court by Mrs Nytte Ekman, resident in Kauniainen.

A. The circumstances of the case

The facts of the case, as submitted by the applicant and as they appear from the documents , may be summarised as follows.

The applicant claims that he has been persecuted in his country of origin as follows:

The applicant is a well-known writer and a poet in his home town Malikija , Syria . He has been subjected to persecution on grounds of his political opinion and ethnic background. He is a member of the Kurdish Democratic Party of Unity in Syria , Yekiti , which aims at guaranteeing human rights to the Kurdish people and at having their land returned to them. The applicant has produced anti-government material, such as posters and poems.

In 1987 he was questioned by the Security Service for the first time, having recited his poems at a party. He was issued with a warning.

On 5 October 1992 he was arrested as a suspect for anti-governmental activities. The arrest lasted 20 days during which the applicant was tortured; he was blindfolded, forced to sit in a car wheel and beaten with a weapon. He was set free in the absence of evidence on the alleged activities, but his friend is still detained.

In April 1993 he was arrested again, having attended a secret conference arranged by the Union Party. The arrest lasted 29 days during which time he was denied sleep and got only a minimum amount of food. The above mentioned torture was repeated. The applicant ’ s brother was arrested at the same time. The applicant was told that his brother became ill while in detention and died, but he suspects that the brother, who was a district leader of the party, was killed. Since 1993 the applicant has been questioned many times and the Security Service has threatened that he will be killed or imprisoned, if he does not change his views and inform on his friends. The applicant claims that there is a warrant for his arrest in Syria and he fears that he will face at least five years ’ imprisonment, if he returns to Syria . He argues that also the mere fact that he has sought asylum abroad will get him arrested.

The applicant left Syria in 1993 and lived in Russia in 1993-1999. While pursuing studies in the Russian language in 1993-1994, he was politically active providing Radio Yerevan with his texts on the conditions in Syria . He is convinced that the Syrian Security Service is aware of his activities in Russia .

The applicant returned to Syria in 1994 and faced similar problems as described above. The same year he returned to Russia .

The applicant was able to enter Syria in 1999 and leave Damascus again in October 1999 since he paid the airport police 400 US dollars (USD). He travelled via Moscow to St. Petersburg and arrived in Finland on 25 April 2000. He applied for asylum the same day. He did not present any travel documents and he had only a copy of his Syrian passport on him. The applicant claims that he bought a false Russian passport in Russia for USD 2,000. He claims that he gave his Syrian passport to a fellow passenger on the bus to Finland , a Russian woman, who promised to send the passport to his girlfriend in St. Petersburg . The applicant kept only a copy of the passport. He promised to bring the original passport to the Finnish authorities as soon as his girlfriend returned it to him.

The applicant ’ s application for asylum and a resident permit was refused by the Directorate of Immigration ( ulkomaalaisvirasto , utlänningsverket ) on 8 March 2002 and an order was issued for his removal to Syria . The Directorate of Immigration found, inter alia, that the applicant ’ s identity had not been established, that he had not presented any travel documents and that he had not submitted any medical certificates concerning the alleged assaults. During the questioning on arrival in Finland , the applicant did not allege that he was forced to flee to Russia in 1993. The applicant had not given account for his reasons for returning to Syria in 1999, although he claimed that there was a warrant for his arrest. The Directorate of Immigration found that it is not credible that a persecuted person, who had been issued an arrest warrant, would be allowed to leave the country. According to the applicant, he had not been arrested since 1993. Moreover, it was not credible that the Syrian authorities would take such an interest in someone who read his poems on the radio in Russia that there would be a warrant for his arrest. The mere fact that the applicant belonged to the Kurdish minority did not constitute a ground for granting him asylum.

On 18 June 2003 the Administrative Court of Helsinki ( hallinto-oikeus , förvaltningsdomstolen ), having held an oral hearing, rejected the applicant ’ s appeal, finding that the story about his reasons for leaving Syria in 1999 was vague and superficial. It noted that he was able to visit Syria in 1994 and in 1999 and that he managed to leave the country in 1999 using his own passport. His activities in Russia and Finland , i.e. writing poems and texts about the Kurdish people ’ s situation, cannot be considered to be such that he would be in need of international protection. The Administrative Court found no evidence that the applicant would be considered an anti-government activist by the Syrian authorities. There were about 1.5 million Kurds in Syria and the mere fact that the applicant was a Kurd did not mean that he was in need of international protection. The court concluded that the applicant would not, on his return to Syria , face any individual risk of inhuman treatment.

A request for application of Rule 39 was refused by this Court on 24 July 2003.

According to written medical statements submitted by the applicant to the Supreme Administrative Court , the arches of his feet are low, his ankle joints are “loose”, his big toes are in a faulty position and his left calf does not strain normally. Moreover, his feet do not “roll” normally when walking. The physiotherapist considered that there was no contradiction between the applicant ’ s symptoms – pain in his feet and legs etc . – and the finding. Moreover, the applicant has undergone a discussion therapy but is still suffering from depression and anxiety.

The applicant has also submitted a certificate issued on 27 May 2002 in Bad Salzuflen , Germany , by the Kurdish Democratic Party of Unity in Syria , Yekiti , according to which he is a member of the above-mentioned Party and that his life will be in danger if returned to Syria . The applicant has also submitted letters, apparently written by people who know him, according to which his life will be in danger if he returns to Syria , as he is a Kurd and as he has applied for asylum abroad.

On 17 December 2003 the Supreme Administrative Court ( korkein hallinto-oikeus , högsta förvaltningsdomstolen ) refused the applicant leave to appeal against the Administrative Court ’ s decision. It is not known whether a date has been set for the applicant ’ s removal to Syria .

COMPLAINTS

1. The applicant complains, under Article 3 of the Convention, about his forthcoming removal to Syria , where he allegedly faces a risk of torture and inhuman treatment.

2. The applicant also complains, under Article 13 of the Convention, that as his appeal against the Administrative Court ’ s decision did not suspend the enforcement of the removal, the safeguards provided by the Finnish Alien ’ s Act fell short of the definition of an effective remedy.

THE LAW

A. Article 3 of the Convention

The applicant complains under Article 3 of the Convention about his removal to Syria , where he allegedly faces a risk of torture and inhuman treatment.

Article 3 provides:

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

The Court recalls 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. Moreover, the right to political asylum is not contained in either the Convention or its Protocols (see Vilvarajah and Others v. the United Kingdom, judgment of 30 October 1991, Series A no. 215, p. 34, § 102).

However, it is well established in the case-law of the Court that expulsion 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 expelled, 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 expel the person in question to that country (see Soering v. the United Kingdom, judgment of 7 July 1989, Series A no. 161, pp. 35-36, §§ 90-91; Cruz Varas and Others v. Sweden , judgment of 20 March 1991, Series A no. 201, p. 28, §§ 69-70; and Chahal v. the United Kingdom, judgment of 15 November 1996, Reports of Judgments and Decisions 1996-V, p. 1853, §§ 73-74).

The Court further observes that, having regard to the fact that Article 3 enshrines one of the most fundamental values of a democratic society and prohibits in absolute terms torture or inhuman or degrading treatment or punishment, a rigorous scrutiny must necessarily be conducted of an individual ’ s claim that his or her deportation to a third country will expose that individual to treatment prohibited by Article 3 (see, mutatis mutandis , the Chahal judgment cited above, p. 1855, § 79, and p. 1859, § 96).

While aware of reports on the occurrence of serious human rights violations in Syria , including the persecution of people advocating rights for the Kurdish minority, the Court has to establish whether the applicant ’ s personal situation is such that his return to Syria would contravene Article 3 of the Convention. In this respect, it is of importance to assess the general credibility of the statements made by him before the Finnish authorities.

The Court notes that the Directorate of Immigration and the Administrative Court , the latter having held an oral hearing, found that the applicant faced no real risk of treatment contrary to Article 3. Having regard to the applicant ’ s statements, in particular that he was able to leave Syria in 1999 using his own passport, and the case as a whole, the Court sees no reason to differ. 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 Syria .

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

B. Article 13 of the Convention

The applicant complains, under Article 13 of the Convention, about the lack of an effective remedy as his appeal against the Administrative Court ’ s decision did not suspend the enforcement of the removal. The applicant refers to the Jabari v. Turkey judgment (no. 40035/98, ECHR 2000-VIII).

Article 13 provides:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

In the Jabari judgment, the Court held that the notion of an effective remedy under Article 13 requires independent and rigorous scrutiny of a claim that there exist substantial grounds for fearing a real risk of treatment contrary to Article 3 and the possibility of suspending the implementation of the measure impugned , g iven the irreversible nature of the harm that might occur if the risk of torture or ill-treatment alleged materialised. That case can be distinguished from the present case, inter alia , in that not only was the application declared admissible, but the Court found a violation of Article 3 of the Convention.

According to the Court ’ s case-law, Article 13 applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see Boyle and Rice v. the United Kingdom , judgment of 27 April 1988, Series A no. 131, § 52).

The Court has above found that the applicant ’ s complaint under Article 3 is manifestly ill-founded. Thus, he does not have an “arguable claim” and his complaint does not attract the guarantees of Article 13.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Michael O ’ BOYLE Nicolas bratza Registrar President