CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 7 décembre 1989

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                        AS TO THE ADMISSIBILITY OF                         Application No. 15658/89                       by Abdel-Qader Hussein Yassin MANSI                       against Sweden           The European Commission of Human Rights sitting in private on 7 December 1989, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   G. SPERDUTI                   E. BUSUTTIL                   G. JÖRUNDSSON                   A. WEITZEL                   H.G. SCHERMERS                   H. DANELIUS                   G. BATLINER                   J. CAMPINOS              Mrs.   G.H. THUNE              Sir   Basil HALL              MM.   C.L. ROZAKIS                   L. LOUCAIDES                Mr.   H.C. KRÜGER, Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 19 October 1989 by Abdel-Qader Hussein Yassin Mansi against Sweden and registered on 19 October 1989 under file No. 15658/89;           Having regard to the reports provided for in Rule 40 of the Rules of Procedure of the Commission;           Having regard to the Government's written submissions dated 24 October, 3, 22 and 28 November 1989 and the applicant's written submissions dated 9 November 1989 as well as the parties' oral submissions at the hearing on 7 December 1989;           Having deliberated;           Decides as follows:   THE FACTS           The facts of the case, as submitted by the parties, may be summarised as follows.           The applicant is a Jordanian citizen of Palestinian origin, born in 1946.   He has been deported to Jordan.   The applicant is represented before the Commission by Mr.   Per Stadig, a lawyer practising in Stockholm.           On 18 April 1987 the applicant arrived in Sweden.   He asked for political asylum in Sweden and requested a residence and a work permit.   He stated that for political reasons he could not return to Jordan.           On 11 April 1988 the National Immigration Board (statens invandrarverk) in accordance with Section 69 of the 1980 Aliens Act (utlänningslagen) decided to transfer the applicant's case to the Government for a decision.   The Board, having regard to an opinion submitted by the National Police Board (rikspolisstyrelsen) on 5 February 1988, found that there were special reasons to let the Government decide the matter and gave its opinion on the issue to be decided by the Government.   It considered that Section 3 of the 1980 Act could not be applied in the applicant's case and that he was not a refugee according to the 1951 Geneva Convention on the Legal Status of Refugees.   The Board did not exclude, however, that the reasons given by the applicant against his expulsion to Jordan were such that, according to Section 6 of the 1980 Act, he should not be refused the right to remain in Sweden.           On 20 April 1989 the Government refused the applicant's request and decided to expel him.   They furthermore decided to prohibit him from returning to Sweden before 1 May 1991.   Having regard inter alia to the opinion of the National Police Board, the Government found that the reasons invoked by the applicant were, in important respects, not credible.   He could not be considered to be a refugee according to Section 3 of the 1980 Act or according to the 1951 Geneva Convention and there were no such reasons to let him remain in Sweden as envisaged by Section 6 of the Act.           On 12 May 1989 the Police Authority of Stockholm referred the matter of the enforcement of the expulsion order to the National Immigration Board.   Before the Board the applicant invoked the results of a medical examination of 11 May 1989.   He alleged that he risked political persecution in Jordan and that he had previously been imprisoned and tortured.   The examination had been carried out by the medical expert, Dr.   Sten W. Jakobsson, and the psychiatrist, Dr.   Per Borgå.   In his opinion Dr.   Jakobsson states that there is a wound on the applicant's chest with the typical appearance of a not too old electrical injury.   He also states that the nail on one of the applicant's toes is missing and that on another toe there is a scar that well matches with the injury the applicant alleges.   In a psychiatric opinion Dr.   Borgå states that the applicant has made a completely credible and detailed statement about torture, which is supported by his mental reactions while making the statement, as well as by the results of the physical examination.           The National Immigration Board in an opinion of 21 June 1989, while transferring the case to the Government, stated that the circumstances of the case were such that the applicant, having invoked particular reasons against returning to Jordan, should enjoy the protection of Section 6 of the Act.   The Board proposed that the Government revoke the expulsion order.           On 18 October 1989 the responsible Minister decided that the applicant should be taken into custody and on 19 October 1989 the Government found that there were no obstacles against the enforcement of the expulsion of the applicant.   The Government noted that the applicant had not prior to the decision to expel him alleged that he had been tortured.   They found that neither the explanation he had given for this behaviour, nor the allegation of torture, were credible.   The Government furthermore pointed out that the applicant had given contradictory information as to the length of his imprisonment and they found, making an overall assessment of the facts of the case, that the applicant's allegation of political persecution was not credible.           After the introduction of the present application to the Commission and after the decision of the Commission's President to indicate to the respondent Government that it was desirable not to deport the applicant until the Commission had had an opportunity to examine the application, the applicant lodged a fresh request for a residence permit with the National Immigration Board.   This request was refused on 20 October 1989.           On 21 October 1989 the applicant was expelled to Jordan.           After his expulsion the applicant has met a representative of the Swedish Embassy at Amman and a representative of Amnesty International.   He has told them that after his arrival at Amman airport he was arrested by the security police.   He was interrogated, ill-treated and tortured for about one week.   He stayed some days in a hospital and was then set free on 5 or 6 November with the duty to report daily to the security police headquarters in Amman.     COMPLAINTS   1.       The applicant alleges that there has been a violation of Article 3 of the Convention on the ground that his expulsion to Jordan involved a risk that he would be detained and tortured in the way he has been tortured before.   2.       The applicant alleges that the Government violated Articles 1 and 25 of the Convention when they deported him in spite of the indication by the Commission's President under Rule 36 of the Rules of Procedure.     PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 19 October 1989 and registered on the same day.           On 19 October 1989, at 15.50 hours, the President of the Commission decided, in accordance with Rule 28 para. 3 of the Commision's Rules of Procedure, to communicate the application to the respondent Government and invite them to submit written observations on the admissibility and merits of the application.           The President also decided, in accordance with Rule 36 of the Commission's Rules of Procedure, to indicate to the Government that it was desirable in the interest of the parties and the proper conduct of the proceedings before the Commission not to deport the applicant to Jordan until the Commission had had an opportunity to examine the application at its forthcoming session from 6 to 10 November 1989.           The Agent of the Government was informed by telephone on the same day, at 16.10 hours, of the President's decision.   At 17.38 hours the Commission confirmed the said indication by telefax.           By letter of 24 October 1989 the Government informed the Commission that the applicant had been expelled on 21 October 1989, and made certain submissions.           The Government's observations were received by letter dated 3 November 1989 and the applicant's observations were dated 9 November 1989.           On 9 November 1989 the Commission decided to invite the parties to a hearing on the admissibility and merits of the application.           The Commission further decided, in accordance with Rule 36 of its Rules of Procedure, to indicate to the Government that it is desirable in the interest of the parties and the proper conduct of the proceedings before the Commission that the Government take measures which will enable the applicant to return to Sweden as soon as possible.           By letter of 22 November 1989 the Government informed the Commission that they had transmitted the Commission's indication under Rule 36 to the National Immigration Board.           On 28 November 1989 the Government submitted additional written observations.           The hearing before the Commission took place on 7 December 1989. The Government were represented by their Agent, Mr.   Hans Corell, Ambassador and Under-Secretary at the Ministry for Foreign Affairs, as well as Mr.   Erik Lempert, Permanent Under-Secretary at the Ministry of Labour, and Mr.   Pär Boquist, Legal Adviser at the Ministry for Foreign Affairs, as advisers.   The applicant was represented by his counsel Mr.   Per Stadig.     THE LAW   1.       The applicant alleges that there has been a violation of Article 3 (Art. 3) of the Convention on the ground that he was expelled to Jordan in a situation where there was a risk that he would be subjected to treatment prohibited by Article 3 (Art. 3) in that country.           Article 3 (Art. 3) of the Convention reads:   "No one shall be subjected to torture or to inhuman or degrading treatment or punishment."           The Government submit that the applicant has changed his story several times.   Only at a late stage has he mentioned anything about torture.   His allegations that he has suffered torture in Jordan are not credible.   At the time of the expulsion the Government had available relevant and reliable information about the current situation in Jordan.   There was no reason to believe that the applicant would be subjected to treatment contrary to Article 3 (Art. 3) of the Convention in Jordan.   For these reasons, the Government submit that the application should be rejected as being manifestly ill-founded.           The Commission considers that the main issue is whether the applicant's expulsion to Jordan violated Article 3 (Art. 3) of the Convention on the ground that, at the time of the expulsion, there existed substantial grounds for believing that he faced a real risk of being treated contrary to Article 3 (Art. 3) of the Convention in Jordan.   The Commission has carried out a preliminary examination of this issue in the light of the parties' submissions.   It considers that the issue raises questions of fact and law which are of such a complex nature that their determination should depend on an examination of the merits.           This complaint cannot therefore be considered manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention and no other ground for declaring it inadmissible has been established.   2.       The applicant also alleges that Sweden's failure to comply with the indications under Rule 36 of the Commission's Rules of Procedure hinders the effective exercise of his right to have his case properly examined by the Commission.   He submits that Sweden has violated Articles 1 and 25 (Art. 1, 25) of the Convention.           Article 1 (Art. 1) of the Convention reads:   "The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of the Convention."           Article 25 para. 1 (Art. 25-1) of the Convention reads:   "The Commission may receive petitions addressed to the Secretary- General of the Council of Europe from any person ... claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in this Convention, provided that the High Contracting Party against which the complaint has been lodged has declared that it recognises the competence of the Commission to receive such petitions.   Those of the High Contracting Parties who have made such a declaration undertake not to hinder in any way the effective exercise of this right."           The Government submit that there is no obligation under the Convention to comply with an indication under Rule 36 of the Commission's Rules of Procedure.   They submit that this complaint is incompatible ratione materiae with the Convention or manifestly ill-founded.           The Commission considers that the respondent State's failure to comply with the indications made under Rule 36 of the Commission's Rules of Procedure raises the question whether there has been a violation of Article 25 para. 1 (Art. 25-1) of the Convention in conjunction with    Article 1 in view of the special nature of the alleged violation of Article 3 (Art. 3) of the Convention.   This question involves issues which, in the Commission's view, justify further examination.           For these reasons, the Commission           DECLARES THE APPLICATION ADMISSIBLE,         without prejudging the merits of the case           RETAINS FOR FURTHER EXAMINATION         the issues arising from the failure to comply with the         indications under Rule 36 of the Commission's         Rules of Procedure           Secretary to the Commission              President of the Commission                 (H.C. KRÜGER)                            (C.A. NØRGAARD)