CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 14 avril 1994

.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. 23406/94                     by Bahram ZARRINNEGAR                     against Sweden        The European Commission of Human Rights sitting in private on 14 April 1994, the following members being present:             MM.   C.A. NØRGAARD, President                S. TRECHSEL                A. WEITZEL                F. ERMACORA                A.S. GÖZÜBÜYÜK                J.-C. SOYER                H.G. SCHERMERS                H. DANELIUS           Mrs. G.H. THUNE           MM.   F. MARTINEZ                C.L. ROZAKIS           Mrs. J. LIDDY           MM.   L. LOUCAIDES                J.-C. GEUS                M.P. PELLONPÄÄ                B. MARXER                M.A. NOWICKI                I. CABRAL BARRETO                B. CONFORTI                N. BRATZA                I. BÉKÉS                J. MUCHA                E. KONSTANTINOV                D. SVÁBY             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 4 February 1994 by Bahram ZARRINNEGAR against Sweden and registered on 4 February 1994 under file No. 23406/94;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having regard to the observations submitted by the respondent Government on 28 February 1994 and the observations in reply submitted by the applicant on 18 March 1994;        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 an Iranian citizen, born in 1966, and currently residing in Sweden. Before the Commission he is represented by Mr. Per Stadig, a lawyer practising in Stockholm.   A.    The particular circumstances of the case        The applicant grew up in the family home in Teheran where his mother runs a pharmacy. He has four brothers and a sister. His brother Naser came to Sweden in 1986 and applied for asylum on the ground that he had been drafted for military service in the war between Iran and Iraq. He was granted a permanent residence permit and became a Swedish citizen on 22 September 1993.        Parviz Zarrinnegar, also one of the applicant's brothers, came to Sweden in July 1990 and applied for asylum. However, his application was rejected and he was expelled to Iran on 3 April 1993. The applicant submits that Parviz disappeared upon arrival in Iran.        The applicant's brother Khosro arrived in Sweden in January 1992 and applied for asylum. The Aliens Appeals Board (Utlänningsnämnden) decided on 8 March 1993 not to grant him permission to stay in Sweden. The decision to expel him has not yet been enforced.        The applicant's fourth brother, Nader, allegedly disappeared in Iran in 1988/89. The applicant submits that Nader was imprisoned for a year and that the family was informed in March 1989 of his whereabouts, namely when he was found in a hospital. Nader died there just before 21 March 1989.        The applicant's mother and sister are living in Iran.        The applicant's family was allegedly often harassed in Iran by members of the revolutionary guard as the family was considered to be against the present regime there. The applicant submits that he was arrested and ill-treated on several occasions, the first time in 1985 when he was arrested in school and detained for a week. The second time was in September 1990. He was released after 20 minutes following which the applicant was allegedly taken to a mountain site and beaten up for some hours before being left there.        The applicant's third arrest was allegedly in October/November 1990 when he was sent to prison after having tried to help his sister who was being harassed by members of the revolutionary guard. The applicant remained in prison for approximately three months and submits that he was subjected to daily questioning and tortured on several occasions, inter alia, by being hung upside down and being forced to walk on broken glass. In February 1991 he was released from prison and sent to a military camp in an area inhabited by Kurds. The applicant considered this to be some sort of military service, but he managed to escape and return to Teheran in June 1991. He remained there until he left for Sweden in July 1991.          Prior to his third arrest the applicant had, on 22 October 1990, applied for a three-month visa at the Swedish Embassy in Teheran in order to visit his brother Naser. At that time he held an Iranian passport, issued to him on 21 February 1990 and valid until 21 February 1993. The applicant submits, however, that it was a forged passport he had bought and which he subsequently sold to the forger when he learned that his request for a visa had been turned down by the Swedish authorities.        Accordingly, the applicant left Iran without a passport or other travel documents via Dubai airport and arrived at Arlanda airport near Stockholm on 19 July 1991. He applied, inter alia, for a residence and work permit referring to his own and other family members' situation in Iran. He also maintained that he had been a member of a pro-Shah organisation since 1988.        On 26 November 1991 the National Immigration Board (Statens Invandrarverk) rejected the application, stating as follows:   (Translation)        "(The applicant) entered Sweden on 19 July 1991 and applied      for asylum here. In support of his application he refers in      particular to the following: Since 1985 he has supported an      illegal royalistic organisation and became a member thereof      in 1988. (The applicant) drafted leaflets and wrote      catchwords on walls. He also distributed portraits of the      Shah's son and participated in several demonstrations. (The      applicant) has been arrested on several occasions. The      revolutionary guards have also searched the family home on      several occasions. In November 1990 he was arrested when he      tried to help his sister who was being harassed by the      guards. He remained detained until February 1991 when he      was sent to a military camp. In June 1991 he managed to      escape from the military service to Teheran, assisted by a      Kurdish family. He remained there until he left Iran. (The      applicant) submits that he has never had a genuine      passport.        The Immigration Board considers that (the applicant's)      submissions are exaggerated in substantial parts and not      trustworthy. (The applicant) has submitted that he was      arrested on several occasions since 1985, sometimes up to      25 days. His brothers have been detained and the family      home searched several times. The Board considers that it is      unlikely that (the applicant) could carry out political      activities in such circumstances. On 22 October 1990 (the      applicant) applied for a visa at the Embassy in Teheran and      submitted a passport valid until 21 February 1993.        In these circumstances the Board cannot find that (the      applicant) has a right to asylum under Chapter 3, Section      1 of the Aliens Act (Utlänningslagen). Furthermore, a need      for a particular strong protection has not been disclosed      either."        The applicant appealed against this decision to the Aliens Appeals Board and an oral hearing was held on 15 January 1992 where the applicant, assisted by counsel, had the opportunity to submit what, in his opinion, would be of relevance to the outcome of the case. On 8 March 1993 the Aliens Appeals Board, however, rejected the applicant's appeal, stating as follows:     (Translation)        "The Board finds that (the applicant) during the      proceedings has made contradictory statements in support of      the request for asylum. He has inter alia made      contradictory statements concerning how he was ill-treated      when (his brother Khosro) was wanted by the authorities and      how he used the passport at the Swedish Embassy in Teheran.      Already due to this the Board finds reason to question his      story.        When (the applicant) came to Sweden he did not have a      passport. His explanations concerning the reasons for this      cannot lead to any other conclusion than that he did have      a passport but disposed thereof in order to conceal      circumstances of particular importance to the examination      of his right to asylum here. This gives reason to reduce      the credibility of the information which he has submitted      in support of his application for a residence permit. The      Board also notes that (the applicant) according to the      investigations made, used a national passport of 21      February 1990 when he applied for a visa to Sweden.        The Board furthermore notes that (the applicant's)      allegations that he travelled from Dubai in the United Arab      Emirates to Sweden without a passport is unlikely and that      he has submitted divergent information about his journey.        The Board considers, having regard to the case as a whole,      that what (the applicant) has submitted and what has      otherwise been brought forward in the case, does not give      reason to believe his allegation that he is in need of      asylum here."        On 31 January 1994 the applicant submitted a new request for asylum to the National Immigration Board. He now submitted, in addition to his previous allegations, copies of two Iranian documents of 12 October 1992 and 28 November 1993 from which it appeared that the Iranian authorities were looking for him. He also submitted a letter from the Iranian Women's Organisation in Sweden supporting the applicant's application.        On 2 February 1994 the Immigration Board rejected the application, stating as follows:   (Translation)        "The Immigration Board questions whether the documents      dated 12 October 1992 and 28 November 1993 are genuine,      firstly because they have been submitted very late,      secondly since no plausible explanation has been submitted      how (the applicant) got hold of these documents and,      thirdly, because the document of 12 October 1992 is an      internal note between the authorities. The Immigration      Board thus questions that this would be sent to (the      applicant's) family.        Furthermore, the Immigration Board considers that the      submission that (the applicant's) brother, Parviz, who was      expelled to Iran on 3 April 1993, had disappeared cannot be      believed since the Board has not been informed thereof      earlier. In one way or the other this information ought to      have been submitted to the Immigration Board by the      relatives living here.          Furthermore, a document from the Iranian Women's      Organisation in Sweden has been submitted. In this it is      inter alia stated that (the applicant) has worked actively      in Kurdistan in order to liberate the Iranian Nation.      Furthermore, it is submitted that a brother to (the      applicant) has disappeared upon return to Iran and that a      return of (the applicant) would be fatal to him.        The information the applicant has submitted in support of      his request for asylum is still not credible. The      circumstances referred to are thus not of a kind which      could lead to a change in a decision to reject the      application which has acquired legal force.        Particular reasons of a humanitarian kind for granting a      residence permit are not at hand either."        Following the applicant's application to the Commission on 4 February 1994 the National Immigration Board decided to stay the execution of the expulsion order pending the Commission's decision in the matter. The applicant, who had been detained with a view to expulsion to Iran, was furthermore released.   B.    Relevant domestic law        Under Chapter 2, Section 5, subsection 3, of the Aliens Act a request for a residence permit lodged by an alien, who is to be refused entry or expelled by a decision which has acquired legal force, may only be granted if the request is based on new circumstances and the applicant is entitled to asylum and there are weighty humanitarian reasons for allowing him to stay in Sweden.        Under Chapter 3, Section 1, an alien may be granted asylum because he is a refugee (para. 2) or, without being a refugee, if he wishes not to return to his home country because of the political situation there and provided he can put forward weighty reasons in support of his wish (para. 3). The term "refugee" refers to an alien who is staying outside the country of which he is a citizen because he feels a well-founded fear of being persecuted in that country, having regard to his race, nationality, membership of a special social group or his religious or political convictions, and who cannot or does not wish, on account of his fear, to avail himself of his home country's protection (Chapter 3, Section 2).        An alien, as referred to in Chapter 3, Section 1, is entitled to asylum. Asylum may, however, be refused inter alia if, in the case of an alien falling under Chapter 3, Section 1, para. 3, there are special grounds for not granting asylum (Chapter 3, Section 4). An alien may be refused entry into Sweden if he lacks a visa, residence permit or other permit required for entry, residence or employment in Sweden (Chapter 4, Section 1, para. 2). When considering whether to refuse an alien entry or to expel him, it must be examined whether he, pursuant to Chapter 8, Sections 1-4, can be returned to a particular country or whether there are other special obstacles to the enforcement of such a decision (Chapter 4, Section 12). A refusal of entry issued by the National Immigration Board may be combined with a prohibition on return for a specific period of time (Chapter 4, Section 14). In reviewing a question of refusal or entry or expulsion, the Aliens Appeals Board may also issue a prohibition on return for a specific period of time (Chapter 7, Section 5, subsection 2).          Under Chapter 7, Section 10, the National Immigration Board may review its decision if new circumstances have emerged or for any other reason, provided it would not affect the alien negatively or be irrelevant to him. A review may take place even if an appeal to the Aliens Appeals Board has been lodged against the decision. Once the National Immigration Board has transmitted the file to the Aliens Appeals Board it may only review its decision if its opinion is requested by the Aliens Appeals Board (Chapter 7, Section 10). The National Immigration Board or the Aliens Appeals Board may refer a case to the Government together with its opinion in the matter (Chapter 7, Section 11).        An alien who has been refused entry or who is to be expelled may never be conveyed to a country where there is firm reason to believe that he would be in danger of being subjected to capital or corporal punishment or torture, or to a country where he is not protected from being sent to a country where he would be in such danger (Chapter 8, Section 1).        When a refusal of entry or an expulsion order is put into effect, the alien may not be sent to a county where he would risk being persecuted, or to a country where he would not be protected from being sent on to a country where he would risk being persecuted (Chapter 8, Section 2, subsection 1). An alien may, however, be sent to such a country if he cannot be sent to any other and if he has shown, by committing a particularly serious offence, that public order and safety would be seriously endangered by his being allowed to remain in Sweden. However, this does not apply if the threatened persecution in the receiving State implies danger to his life or is otherwise of a particularly grave nature. Similarly, the alien may be sent to a country referred to in subsection 1 if he has engaged in activities endangering the national security of Sweden and if there is reason to suppose that he would continue to engage in such activities in Sweden and he cannot be sent to any other country (subsection 2).        If the enforcement is not subject to any obstacles under, inter alia, Chapter 8, Sections 1 and 2, an alien who has been refused entry or who is to be expelled is to be sent to his country of origin or, if possible, to the country from which he came to Sweden. If the decision cannot be put into effect in the manner indicated in subsection 1, or there are other special grounds for doing so, the alien may be sent to some other country instead (Chapter 8, Section 5).        When considering a request for a residence permit lodged by an alien to be expelled according to a decision which has acquired legal force, the National Immigration Board (and in certain cases the Government too) may stay execution of that decision. For particular reasons, the Board may also otherwise stay execution (Chapter 8, Section 10).        If the enforcing authority finds that enforcement cannot be carried out or that further information is needed the authority is to notify the National Immigration Board accordingly. In such a case, the Board may decide on the question of enforcement or take such other measures as are necessary (Chapter 8, Section 13).     COMPLAINTS        The applicant complains that his expulsion to Iran would violate Article 3 of the Convention. He claims that he risks persecution on account of his own, as well as his family's political activities.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced and registered on 4 February 1994.        On 4 February 1994 the President of the Commission decided pursuant to Rule 36 of the Commission's Rules of Procedure, to indicate to the respondent Government that it was desirable in the interest of the parties and the proper conduct of the proceedings not to return the applicant to Iran until the Commission had had an opportunity to examine the application.        The President further decided, pursuant to Rule 34 para. 3 and Rule 48 para. 2 (b), to bring the application to the notice of the respondent Government and to invite them to submit written observations on the admissibility and merits.        The Government's observations were submitted on 28 February 1994.        On 10 March 1994 the Commission prolonged the President's indication under Rule 36 until 15 April 1994.        The applicant's observations in reply to those of the Government were submitted on 18 March 1994.     THE LAW        The applicant complains that, if returned to Iran, he risks persecution in view of his and his family's political activities. He invokes Article 3 (Art. 3) of the Convention which reads:        "No one shall be subjected to torture or to inhuman or      degrading treatment or punishment."        The Government do not raise any objections in respect of the six months' rule set out in Article 26 (Art. 26) of the Convention and leave it to the Commission to decide whether domestic remedies have been exhausted, having regard to the fact that it is always possible to lodge a new request for a residence permit with the National Immigration Board which must deal with it, provided there are new circumstances which could call for a different decision.        As regards the substance of the application the Government point out that an alien's right to enter and reside in a particular country is not as such guaranteed by the Convention, nor is the right to political asylum. However, the Government acknowledge that where substantial grounds have been shown for believing that the person could, if extradited or expelled, face a real risk of being subjected to treatment contrary to Article 3 (Art. 3) in the country of destination the responsibility therefor would lie with the country extraditing or expelling the alien concerned.        The Government submit that the provisions on enforcement in the Swedish Aliens Act reflect almost exactly the same principles as have been outlined by the European Court of Human Rights when applying Article 3 (Art. 3) to extradition cases or to cases concerning expulsion. Under Chapter 8, Section 1 of the Aliens Act an alien refused entry or expelled may never be sent to a country where there are substantial grounds to believe that he would be in danger of suffering capital or corporal punishment or of being subjected to torture, nor to a country where he is not protected from being sent to a country where he would be in such danger. Thus, the Swedish immigration authorities have applied almost the same test as the Commission is carrying out when applying Article 3 (Art. 3) to the present case.        In the circumstances of the present case the Government rely on and agree with the opinions of the Swedish immigration authorities and the reasons they have invoked. Thus, the Government maintain that no substantial grounds have been shown for believing that the applicant would face a real risk of treatment contrary to Article 3 (Art. 3) of the Convention if expelled to Iran.        The applicant maintains that the facts of the case disclose substantial grounds for believing that he would be subjected to treatment contrary to Article 3 (Art. 3) of the Convention if returned to Iran. He has been arrested and ill-treated on several occasions due to his political activities and it is undisputed that he and his family have been harassed for years by the Iranian authorities because of this. One of his brothers has died in Iran and another brother has disappeared after being returned from Sweden to Iran.        The applicant furthermore maintains that the Swedish Government have totally misinterpreted the political situation in Iran. According to information from the United Nations, almost 20,000 persons are incarcerated today in Iran for political reasons. Accordingly, there is every reason to believe that the facts as submitted by the applicant disclose reason to fear treatment contrary to Article 3 (Art. 3) of the Convention.        As regards Article 26 (Art. 26) of the Convention the Commission finds that the applicant has, in the circumstances of the case, fulfilled the requirements of the exhaustion of domestic remedies.        As regards the applicant's complaint made under Article 3 (Art. 3) of the Convention the Commission recalls that the Contracting States have the right to control the entry, residence and expulsion of aliens. The right to political asylum is not protected in either the Convention or its Protocols (Eur. Court H.R., Vilvarajah and Others judgment of 30 October 1991, Series A no. 215, p. 34, para. 102). However, expulsion by a Contracting State of an asylum seeker may give rise to an issue under Article 3 (Art. 3) of the Convention, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned would face a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the country to which he is to be expelled (ibid., p. 34, para. 103). A mere possibility of ill-treatment is not in itself sufficient (ibid., p. 37, para. 111).            When considering this issue the Commission attaches importance to the fact that the Swedish authorities appear to have gained considerable experience in evaluating claims of the present nature by virtue of the large number of Iranian asylum seekers in Sweden. It notes that residence permits have in fact been granted in numerous cases and that the authorities are obliged to consider essentially the same factors as are relevant to the Convention organs' assessment under Article 3 (Art. 3) of the Convention. The Commission observes, in particular, that Chapter 8, Section 1, of the Aliens Act also imposes an absolute obligation on the enforcement authority in Sweden to refrain from expelling an alien should the human rights situation in the receiving country constitute a firm reason to believe that he would be in danger of being subjected to capital or corporal punishment, or torture, in that country (cf. No. 20981/92, Dec. 8.4.93 and No. 21808/90, Dec. 8.9.93, both unpublished).        The facts of the present case moreover disclose that the decision to expel the applicant was made after careful examination of his case, including an oral examination where the applicant, assisted by counsel, had the opportunity to submit and clarify everything which was of importance to the case. Having regard to the outcome thereof the Commission shares the Government's considerable doubts as to the credibility of the applicant's story and finds on the whole that his account of his background in Iran and escape to Sweden contains a number of inconsistencies.        In these circumstances the Commission concludes, on the evidence before it concerning the applicant's personal situation and the general situation in Iran today, that he has failed to show that the Swedish authorities would expose him to a serious risk of treatment contrary to Article 3 (Art. 3) of the Convention should they expel him to Iran (cf. also No. 16381/90, Dec. 14.10.91, unpublished).        It follows that the application must be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the Commission              President of the Commission        (H.C. KRÜGER)                             (C.A. NØRGAARD)