SECOND SECTION

Application no. 58363/10 M.E. against Denmark lodged on 8 October 2010

STATEMENT OF FACTS

The applicant , M . E., is a stateless Palestinian. It appears that he was born in Syria in 1982. Currently , he lives in Sweden . He is represented before the Court by Ms Marianne Vølund , a lawyer practising in Copenhagen .

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

The applicant entered Denmark with his stepmother and two siblings in February 1990 , when he was seven years old. He was granted asylum in October 1993 , the same year his father entered Denmark . The latter was granted asylum in 1994.

In 1998 , when the applicant was sixteen years old , he returned to Syria for a short stay. According to the Danish Central Office of Civil Registration , he stayed there from 20 December 1998 to 22 February 1999 , but the applicant maintained that he stayed for six months.

He also returned to Syria for a short time in 2003.

In Denmark , the applicant married and divorced twice. From each marriage he had a child , one born in 2001 and one in 2004.

By a judgment of 26 January 2006 the High Court of Eastern Denmark ( Østre Landsret ) convicted the applicant of drugs offences relating to approximately 2.5 kg of heroine and cocaine , committed throughout 2004. The High Court considered that the applicant was the instigator and sentenced him to seven years ’ imprisonment. He was also expelled from Denmark with a ban on returning. The High Court did not find that an expulsion would contravene Article 8 of the Convention. The judgment was upheld by the Supreme Court ( Højesteret ) on 25 August 2006.

In 2008 , while serving his sentence , the applicant objected to the expulsion. He maintained , inter alia , that although originally he had stated that he was born in Syria , where he was also registered , in reality he was born in Lebanon . The applicant did not wish to return to Syria , as he did not wish to perform his military service there. He also feared being returned to Syria due to his father ’ s political past there. Moreover , he was in conflict with a Syrian family , because he had had an affair with their daughter in 1999 and she had subsequently falsely accused him of rape. Finally , he was afraid of being sentenced again in Syria for the drugs crime he had committed in Denmark . He added that in December 2007 he had found a new girlfriend , who visited him in prison every week. The applicant said that he would agree to being sent to Germany , where he had an aunt. He had nine siblings in Denmark and two in Sweden .

By decision of 10 August 2009 , the Aliens Service ( Udlændingeservice ) found that the applicant could be expelled to either Syria or Lebanon . Concerning the applicant ’ s fear of double punishment , the Aliens Service referred to a letter from the Ministry of Foreign Affairs of 4 February 2004 , according to which “ ne bis in idem ” was expressly set out in the Syrian Penal Code , but indicated that some convictions abroad could be tried anew in Syria if they were detrimental to the security of the State , for example. In any event the sentence served abroad would be deducted from any sentence imposed in Syria .

On appeal , by decision of 2 December 2009 , the Refugee Appeals Board ( Flygtningenævnet ) upheld the decision , but found that the applicant could be expelled only to Syria , the country where he had lived at least from 1983 to 1988 and visited from December 1998 to February 199 9 and again in 2003.

On 16 August 2009 , in accordance with the provisions of section 50 of the Aliens Act ( Udlændingeloven ) , the applicant instituted proceedings before the City Court in Svendborg ( Retten i Svendborg ) claiming that there had been a material change in his circumstances, for which reason he requested the court to review the expulsion order. The applicant invoked Article 8 of the Convention and referred in particular to his two children in Denmark and to his new girlfriend , who had a child from a previous relationship , born in June 2008. Before the City Court the latter stated that she would follow the applicant to Syria .

On 29 March 2010 the City Court rejected the applicant ’ s request as it did not find that his situation had changed to such an extent that there was any reason to revoke the expulsion order. Upon appeal , the applicant submitted that he had married his girlfriend according to Arabic tradition, that she was expecting their child and that she no longer wanted to follow him to Syria . On 26 May 2010 the High Court of Eastern Denmark upheld the City Court ’ s decision , and leave to appeal to the Supreme Court was refused on 19 August 2010.

The applicant was deported to Syria on 3 November 2010.

Upon arrival at Damascus airport , the applicant allegedly was detained and placed in different prisons, interrogated , notably about his conviction in Denmark and whether he was addicted to drugs, and was regularly subjected to torture.

On 4 December 2010 , he was released in order to commence thirty months ’ military service in Holms , but he was exempted after one month because he suffered from heart problems.

He was also summoned to appear before the court in Holms to explain about his conviction in Denmark . It appears that that case is still pending. He feared being convicted anew and sentenced to up to ten years ’ imprisonment.

The applicant ’ s wife and their child went to Syria to visit him.

On 12 September 2011 , the applicant ’ s representative informed the Court that the applicant had fled Syria and entered Greece , where he was detained.

On 21 November 2011, the applicant ’ s representative informed the Court that the applicant had entered Sweden and requested asylum there.

COMPLAINTS

On 8 October 2010, the applicant complained that his deportation to Syria would be in violation of Article 8 of the Convention.

On 2 December 2010, he also complained that his deportation to Syria had been in violation of Article 3 of the Convention in that the Danish authorities should have been aware that he would risk being subjected to torture upon return.

QUESTIONS TO THE PARTIES

1. Having regard to the applicant ’ s submissions before the Aliens Service and the Refugee Appeals Board, has the applicant exhausted domestic remedies as to his allegation that he was subjected to torture upon return by the Syrian authorities in connection with their inquiries into his conviction in Denmark, and his complaint brought before the Court under Article 3 of the Convention that the Danish authorities should have been aware of this risk?

2. Was it in breach of Article 3 of the Convention to implement the applicant ’ s deportation order and return him to Syria on 3 November 2010?

3. Has the applicant complied with the six months time limit relating to the complaint that the original deportation order, which became final on 25 August 2006, contravened his right to respect for “private life” and for “family life?

4. Was it in breach of Article 8 of the Convention to implement the applicant ’ s deportation order and return him to Syria on 3 November 2010?