CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 22 février 1995

.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. 24900/94                       by M.M.M.-M.                       against Sweden         The European Commission of Human Rights (Second Chamber) sitting in private on 22 February 1995, the following members being present:              Mrs.   G.H. THUNE, Acting President            MM.    H. DANELIUS                  G. JÖRUNDSSON                  J.-C. SOYER                  H.G. SCHERMERS                  F. MARTINEZ                  L. LOUCAIDES                  J.-C. GEUS                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY              Mr.    K. ROGGE, Secretary to the Chamber         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 1 June 1994 by M.M.M.-M. against Sweden and registered on 16 August 1994 under file No. 24900/94;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:   THE FACTS         The applicant, a Ugandan citizen born in 1966, is a second lieutenant in the Ugandan army, the National Resistance Army (NRA). He is at present in hiding in Sweden.         The facts of the case, as submitted by the applicant, may be summarised as follows.         In 1985 the applicant joined the NRA, at this time a guerilla movement, as a protest against human rights violations and the murder of his parents.   After the change of government in 1986, he was attached to the Directorate of Barracks and Stores at the Military Headquarters assigned to do clerical work.         In 1990 the applicant was transferred to a battalion whose task was to quell the insurgents in northern Uganda.   Because of genocide and torture allegedly carried out by the NRA, he decided, in the autumn of 1990, to leave the battalion.   He went to Kampala, but was later brought back.   Upon return, he was arrested and charged with subversion and was put in a military prison.   In prison, he became ill and was therefore taken to a military hospital near Kampala.   On 8 March 1991 he managed to escape from the hospital with the help of some army friends who provided him with a movement order.         After hiding at different places for some months, the applicant bought from an intermediary a false Ugandan passport, which indicated that he was a student and that he was born in 1968.   After an unsuccessful attempt at leaving the country on 9 August 1991, he left Uganda via Entebbe airport on 18 August 1991.   He was escorted to the airport by a high-ranking army officer, who posed as his father.   He travelled via Cairo and Frankfurt and arrived, later the same day, at Arlanda airport, Stockholm.   The following day, 19 August 1991, he applied for asylum.         In a subsequent police interrogation and in a letter from his public counsel to the immigration authorities, the applicant stated, in addition to the above-mentioned facts, that he had not belonged to any political party or organisation or taken part in any political activities in Uganda and that he had not been persecuted.   He claimed, however, that, upon return, he risked a long prison sentence or execution because of his desertion from the army during ongoing fighting.         On 16 June 1992 the National Immigration Board (Statens Invandrarverk) rejected the applicant's application and ordered his expulsion.   The Board did not find it credible that he had been charged with subversion.   It further considered that the other allegations submitted did not meet the requirements for obtaining asylum or a residence permit in accordance with the Aliens Act (Utlänningslagen, 1989:529).         The applicant appealed to the Aliens Appeals Board (Utlännings- nämnden), which, at the request of the applicant, asked for information from the Swedish embassy in Nairobi, Kenya.   In a reply of 23 November 1993, the embassy stated that the information supplied by the applicant was improbable.   It found it unlikely that the applicant had been brought from the north of Uganda to a hospital in Kampala and that he had obtained a passport through an intermediary.   Furthermore, according to the embassy, he would hardly be charged with subversion for having deserted the army.         In answer to the embassy's statements, the applicant alleged that the only military hospital was placed in Kampala and that all documents in Uganda can be obtained with money.   He further maintained that after he had left the battalion in the autumn of 1990 he was charged with subversion and subsequent to his escape from the hospital he is now charged and wanted for desertion.         On 26 January 1994 the Aliens Appeals Board rejected the applicant's appeal and stated, inter alia, the following:   (translation)         "[The applicant] entered Sweden on 18 August 1991 as a       tourist with a guarantor and did not apply for asylum until       the following day.   [The applicant] has chosen to depart       from Entebbe airport with a passport of his own, issued on       4 July 1991 and indicating student as his profession.       Furthermore, [the applicant] was granted tax clearance on       16 August 1991.   These circumstances lessen the credibility       of [the applicant's] statements as to his need of asylum.         [The applicant] has made contradictory statements as to       which period he was absent without leave from his military       service and the date of his escape from the hospital.   [The       applicant's] statement that he had been charged with       subversion due to his desertion is not credible and was       made only at a late stage in the proceedings before the       National Immigration Board.   Only after the embassy's       investigation and only before the [Aliens Appeals] Board       has [the applicant] stated that he was first charged with       subversion and later also with desertion.   [The       applicant's] statements concerning the charges are, in       these circumstances, not credible.         The information given by [the applicant] on his referral       from the north of Uganda to a hospital in Kampala, on the       procurement and issuing of the passport and on the security       service's knowledge of and interest in him is, according to       the Board's assessment, not probable."   COMPLAINTS         The applicant complains that the Swedish authorities have wrongly ordered his expulsion and maintains that he will be subjected to treatment contrary to Article 3 of the Convention upon return to Uganda.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 1 June 1994. By letter of 17 June 1994 the applicant requested the Commission to stay his deportation from Sweden.         On 28 June 1994 the Commission decided not to indicate to the Government of Sweden, pursuant to Rule 36 of the Commission's Rules of Procedure, the measure suggested by the applicant.          Following further correspondence with the applicant, the application was registered on 16 August 1994.   THE LAW         The applicant complains that, if expelled to Uganda, he risks being subjected to treatment contrary to 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 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 the 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).         The applicant contends that he will be prosecuted and possibly executed for subversion and desertion.   He alleges that while in prison after having left his battalion he was tortured and mistreated.   He refers to various documents showing, inter alia, that he has been enrolled in the NRA and that the Military Code of Conduct prescribes that a court martial shall try and judge a deserter as it deems fit. He has also submitted an NRA document which states that he has been tried and sentenced in his absence and that he is accordingly wanted.         The Commission does not consider it established that the applicant would risk capital punishment for subversion or desertion if returned to Uganda.   Concerning his possible imprisonment for these offences, the Commission does not find such a penalty so severe as to raise an issue under Article 3 (Art. 3) of the Convention (cf., e.g., No. 12364/86, Dec. 17.10.86, D.R. 50 p. 280).   In this connection, the Commission notes that the NRA document concerning the trial and sentencing in absentia does not state the name of the court, the offence or the penalty.   Moreover, the Commission recalls from its previous case-law that Chapter 8, Section 1 of the Aliens Act 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 the alien would be in danger of being subjected to capital or corporal punishment or torture in that country (cf., e.g., No. 22325/93, Dec. 8.9.93, not published).         In view of the above, the Commission finds no substantiation of the applicant's claims that he would be subjected to treatment contrary to Article 3 (Art. 3) of the Convention upon return to Uganda.         It follows that the application is 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 Second Chamber   Acting President of the Second Chamber            (K. ROGGE)                           (G.H. THUNE)