CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 6 juillet 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. 23780/94                       by David MUSASIZI                       against Sweden         The European Commission of Human Rights sitting in private on 6 July 1994, the following members being present:              MM.    C.A. NØRGAARD, President                  S. TRECHSEL                  A. WEITZEL                  F. ERMACORA                  E. BUSUTTIL                  G. JÖRUNDSSON                  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                  G. RESS              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 2 February 1994 by David MUSASIZI against Sweden and registered on 30 March 1994 under file No. 23780/94;         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 30 May 1994 and the observations in reply submitted by the applicant on 1 July 1994;         Having deliberated;         Decides as follows:   THE FACTS         The applicant, a priest, is a citizen of Uganda, born in 1961. He is currently in hiding in Sweden. He was initially represented by Mr. Leif Rydberg, a lawyer at Bergshamra, and as from 6 June 1994 by Ms. Louise Bjurwill, a lawyer in Stockholm.         The facts of the case, as submitted by the parties, may be summarised as follows.   Particular circumstances of the case          According to the applicant, he was active in the banned party Uganda Freedom Movement up to 1989, being responsible for exchanging information between the youth branches. In October 1989 he was allegedly arrested by security police and interrogated under torture about his political activities. After two weeks he escaped. On 9 November 1989 he entered Kenya, where he was interrogated allegedly under torture and subsequently convicted of espionage and sentenced to nine months' imprisonment. After his release he entered Tanzania on 4 June 1990.         According to the Government, the applicant on 23 August 1990 contacted the Swedish Embassy in Tanzania, requesting a permanent residence permit in Sweden. He alleged that one of his brothers had been killed in 1987, that his family had been persecuted ever since and that another brother was resident in Sweden.         On 19 November 1990 the applicant was granted a residence permit in Tanzania until 15 May 1991.         On 22 November 1990 the applicant left Tanzania for Sweden, stating that he feared further detention and torture in Uganda, allegedly because Tanzania had entered into agreement with Uganda to return asylum seekers.         According to the Government, the applicant, when entering Sweden on 23 November 1990, announced himself as a tourist on his way to visit his brother. His passport showed a Ugandan tax clearance stamp of 4 October 1989 and a Ugandan departure stamp of 9 November 1989.         On 26 November 1990 the applicant requested asylum or, alternatively, a residence permit in Sweden. He referred to his activities within the Uganda Freedom Movement.         On 18 June 1991 the National Immigration Board (statens invandrarverk) rejected the applicant's request, having regard to the stamps in his passport and questioning his fears of ill-treatment if returned to Uganda.         The applicant appealed to the Aliens' Appeals Board (utlänningsnämnden), stating inter alia that he had obtained the stamps through assistance from the then Director of the Ugandan Security Service and the then Minister of Foreign Affairs. These were both named by the applicant. Their anti-governmental activities had, according to the applicant, subsequently been revealed and both had been arrested.         On 26 November 1992 the applicant's appeal was rejected. The Aliens' Appeals Board noted that he had given different accounts of his treatment by the Ugandan authorities, his departure from that country and his imprisonment in Kenya. Considering the circumstances as a whole, the facts referred to by the applicant in support of his request for asylum or a residence permit could not be considered credible.         On 8 December 1992 the applicant lodged a fresh request for a residence permit, now also referring to suicidal thoughts. This request was rejected on 9 December 1992 by the National Immigration Board.         On 26 October 1993 the applicant lodged a further request for a residence permit. He invoked, inter alia, copies of three documents issued by Ugandan authorities which he had allegedly obtained by bribing certain officials at the Ugandan High Commission in Kenya in 1993. One document appears to have been issued by the Office of the Army Commander of the National Resistance Army in January 1990 and orders the elimination of the applicant by "excution squdron". [Note: Should be "execution squadron".] A further document appears to have been issued by the Directorate of Military Intelligence and Security of the National Resistance Army in February 1990 and renews the order to exterminate the applicant as a "security enemy". The third document, marked "Top secret", appears to have been issued by the Ugandan High Commission in Kenya on 6 August 1993 and refers to him, inter alia, as a "suspect" returning to Uganda or Kenya.         The applicant further invoked an opinion of 17 June 1993 submitted by the Centre for Treatment of Torture Victims in Sweden, according to which there were no reasons for questioning his torture allegations, and a psychiatric report of 24 June 1993 submitted by Dr. Per Borgå, a psychiatrist. According to the report, the applicant was showing symptoms of a post-traumatic stress syndrome.         It appears from the psychiatric report that during his examination the applicant had also claimed to have been, inter alia, the adviser of a well-known dissident who had been murdered in 1987 under unclear circumstances.         In his request to the National Immigration Board the applicant finally referred to his relationship with a woman in Sweden as from October 1992.         On 29 October 1993 the applicant's request was rejected. The Board did not question that the applicant had been subjected to torture, but considered that the situation in Uganda was not such that he would again risk similar treatment. No particular grounds for granting him a residence permit on humanitarian grounds existed.         On 27 April 1994 the National Immigration Board decided to stay the enforcement of the expulsion order regarding the applicant until the Commission has examined his application.         In a further report of 22 June 1994 Dr. Borgå states that the applicant continues to show symptoms "well in accordance with the "post-traumatic stress syndrome". The current symptoms include, inter alia, insomnia and nightmares.     Relevant domestic law         Under Chapter 3, Section 1 of the Swedish Aliens Act (utlännings- lag 1989:529) an alien may be granted asylum because he is a refugee 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. 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 group in society or his religious or political convictions, and who cannot or does not wish 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 Board of Immigration may be combined with a prohibition on return for a specific period of time (Chapter 4, Section 14). In refusing entry 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 Board of Immigration 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 has been lodged against the Board's decision. Once the Board has handed over the file to the Aliens' Appeals Board it may only review its decision if its opinion is requested by the Aliens' Appeals Board. The National Board of Immigration may, for special reasons, refer a request for asylum to the Aliens' Appeals Board 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 country 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 particular 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 (subsection 2). 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 3).         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).         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 provided the request is based on new circumstances and the applicant is either entitled to asylum or there are weighty humanitarian reasons for allowing him to stay in Sweden (Chapter 2, Section 5, subsection 3).         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 Board of Immigration (and in certain cases also the Government) 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 Board of Immigration 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   1.     The applicant complains under Article 3 of the Convention about his impending expulsion to Uganda, fearing that he will be executed or otherwise ill-treated on account of his alleged activities as a political dissident if returned to that country. He alleges that other members of the Uganda Freedom Movement have been executed, most recently in August 1993. He also refers to a letter of August 1993 from the National Army for Liberating Uganda as well as to a letter of October 1993 from the commander of the Uganda Freedom Movement. According to the letters, some of the members of these movements have been killed. The last-mentioned letter further states that the applicant's life would be endangered, should he be caught by Ugandan Government troops.         Under Article 3 the applicant also refers to his present mental suffering caused by his previous torture.   2.     The applicant also alleges violations of Articles 2, 5, 8, 9, 10, 11 and 14 of the Convention.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 2 February 1994.         On 10 March 1994 the Commission examined the application and decided not to apply Rule 36 of the Rules of Procedure.         The application was registered on 30 March 1994.         On 14 April 1994 the Commission decided to bring the application to the notice of the Government and to invite them to submit written observations on its admissibility and merits limited to the complaint under Article 3 of the Convention. It further decided, pursuant to Rule 36 of the Commission's Rules of Procedure, to indicate to the Government that it was desirable in the interests of the parties and the proper conduct of the proceedings not to expel the applicant to Uganda until the Commission had had an opportunity to examine the application at the latest on 20 May 1994.         On 19 May 1994 the Commission decided to prolong the validity of its indication under Rule 36 until 8 July 1994.         Following an extension of their time-limit the Government's observations were submitted on 30 May 1994. The applicant's observations in reply were submitted on 1 July 1994.   THE LAW   1.     The applicant complains about his impending expulsion to Uganda, stating that he fears execution or other ill-treatment on account of his alleged activities as a political dissident if returned to that country. He further refers to his current mental suffering caused by his previous torture. He invokes Article 3 (Art. 3) of the Convention which reads as follows:         "No one shall be subjected to torture or to inhuman or degrading       treatment or punishment."         The Government argue that the complaint is manifestly ill-founded as a whole. They submit that the applicant has shown no substantial grounds for believing that he would face a real risk of treatment contrary to Article 3 (Art. 3), if returned to Uganda. As regards the applicant's purported political background, the human rights situation in Uganda has improved in recent years according to the Government's sources. The regime which the applicant claims he opposed was overthrown in 1986 and at present there are no signs of State-sponsored persecution of political dissidents. The number of incidents involving ill-treatment in detention has decreased and torture no longer seems to occur in the prisons. Most dissidents have been released.         The Government further question the accuracy of the applicant's account of his background, as well as the authenticity of the documents allegedly obtained from the Ugandan High Commission in 1993. These documents have not been submitted to the Swedish authorities in their original version and in a number of other cases concerning Ugandan asylum seekers similar documents have proven to be false.         The Government finally refute the applicant's assertion that his expulsion to Uganda would violate Article 3 (Art. 3) in the light of his present mental state.         As regards the current human rights situation in Uganda, the applicant submits that several documented incidents of persecution have involved the Ugandan State. Torture, illegal deprivation of liberty and disappearances still take place. Political dissidents are also being persecuted. Reference is made, in particular, to a report in May 1994 by Human Rights Africa.         The applicant questions the conclusion of the National Immigration Board in its decision of 18 June 1991 that the fact that he left Uganda lawfully reduces the credibility of his asylum claim. At the time when the applicant left Uganda it was possible for a Ugandan citizen to bribe himself out of the country. Moreover, the applicant considers that he gave a detailed account of his previous arrests, imprisonments and torture already in a police interview in December 1990.         As regards the applicant's current mental health, he maintains that the expulsion as such would already violate Article 3 (Art. 3) on account of his mental state. Reference is made to the psychiatric reports.         The Commission recalls that 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 to give rise to a breach of Article 3 (Art. 3) (ibid., p. 37, para. 111).         The Commission considers that there are reasons to doubt the accuracy of some of the information provided by the applicant. As noted by the Aliens' Appeals Board, the applicant has not been consistent in his account of his previous experiences to the Swedish authorities. Moreover, it is noticeable that it was only at a very late stage that he told the Swedish authorities that he had been the adviser of a well- known dissident. The documents invoked by the applicant were also presented at a late stage and their authenticity may be open to doubt.         The Commission concludes, on the evidence before it concerning the applicant's purported background and the current situation in Uganda, that it has not been established that there are substantial grounds for believing that he would be exposed to a real risk of being subjected to treatment contrary to Article 3 (Art. 3) of the Convention, if expelled to that country.         As regards the applicant's current mental state, the Commission notes that the most recent psychiatric report has not been invoked by him before the Swedish authorities. Nevertheless, the Commission finds that no substantial grounds have been shown in support of the applicant's assertion that his return to Uganda would violate Article 3 (Art. 3) of the Convention on account of his health.         It follows that the complaint under Article 3 (Art. 3) of the Convention must be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.     The Commission has further examined the applicant's allegations of violations of Articles 2, 5, 8, 9, 10, 11 and 14 (Art. 2, 5, 8, 9, 10, 11, 14) of the Convention. However, insofar as the matters complained of have been substantiated and are within its competence, the Commission finds that they do not disclose any appearance of a violation of those provisions.         It follows that this part of the application must also be rejected as being manifestly in accordance with Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission, by a majority,         DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the Commission             President of the Commission           (H.C. KRÜGER)                          (C.A. NØRGAARD)