CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 22 janvier 1998

.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. 36800/97                       by Amir HEIDARI                       against Sweden           The European Commission of Human Rights sitting in private on 22 January 1998, the following members being present:              MM     S. TRECHSEL, President                  J.-C. GEUS                  E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H. DANELIUS            Mrs    G.H. THUNE                  F. MARTINEZ                  C.L. ROZAKIS            Mrs    J. LIDDY            MM     L. LOUCAIDES                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  D. SVÁBY                  G. RESS                  A. PERENIC                  C. BÎRSAN                  P. LORENZEN                  K. HERNDL                  E. BIELIUNAS                  E.A. ALKEMA                  M. VILA AMIGÓ            Mrs    M. HION            MM     R. NICOLINI                  A. ARABADJIEV              Mr     M. de SALVIA, 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 3 July 1997 by Amir HEIDARI against Sweden and registered on 7 July 1997 under file No. 36800/97;         Having regard to the reports provided for in Rule 47 of the Rules of Procedure of the Commission;         Having regard to the observations submitted by the respondent Government on 12 November 1997 and the observations in reply submitted by the applicant on 16 December 1997;         Having deliberated;         Decides as follows:   THE FACTS         The applicant, an Iranian citizen born in 1953, is detained in Sweden awaiting his forthcoming deportation. He is represented by Mr Ingemar Sahlström, a lawyer in Uppsala.         The facts of the case, as submitted by the parties, may be summarised as follows.   A.     The particular circumstances of the case         The applicant arrived in Sweden as a student in 1979 and was granted a residence permit valid for one year. Shortly thereafter he applied for a residence permit with reference to his membership of a group which had been criticising the Shah's regime in Iran. After Ayatollah Khomeini had come to power the group had allegedly begun to sympathise with the Kurdish people and the applicant had been wounded when participating in a combat. This fact and the general situation in the country had made him want to leave Iran.         In 1981 the applicant was granted a fresh residence permit valid for one year. In 1982 he requested a permanent residence permit and a travel document. This request was granted later in 1982, the applicant having been considered a refugee. He was not issued with a declaration confirming his refugee status (flyktingförklaring).         In 1984 the applicant was convicted in Sweden on several counts of document forgery and sentenced to one year's imprisonment. The offences mainly involved the falsification of passports.         In 1988, when the applicant was wanted by the Swedish police, his brother in Sweden informed the authorities that the applicant had left Sweden in 1987. The applicant alleges that he had gone to live in Norway, Denmark and Germany.         On 14 March 1990 the applicant was again convicted in Sweden on several counts involving the preparation of a document forgery and violations of the Aliens Act (utlänningslag 1989:529). The latter offences involved activities aimed at assisting, in return for money, Iranians lacking valid travel documents in entering Sweden. He was sentenced to eight months' imprisonment.         In 1992 the applicant was convicted in Denmark of violations of the Danish Aliens Act. He was again sentenced to imprisonment.         On 12 February 1993 the District Court (tingsrätten) of Uppsala convicted the applicant of aggravated fraud, document forgery and violation of the Aliens Act. He was sentenced to one year and six months' imprisonment, ordered to be deported and banned from returning to Sweden.         According to the District Court's judgment, the applicant had stated that he had returned to Iran before February 1988 and that he had taken another name. In the proceedings before the Svea Court of Appeal (Svea hovrätt) the applicant denied having returned to Iran. On 7 April 1993 the Court of Appeal sentenced him to four years' imprisonment but quashed the deportation order, finding no evidence contradicting his denial as regards his return to Iran.         On 10 May 1995 the National Immigration Board (Statens invandrarverk) withdrew the applicant's residence permit. It noted that he had been reported as having left Sweden already in 1988 and that he had not since presented himself to the Swedish authorities.         On 12 October 1995 the applicant was released on parole and apparently left Sweden. In August 1996 he re-entered Sweden without reporting to the authorities and without requesting a new residence permit.         In further criminal proceedings against the applicant before the Uppsala District Court the National Immigration Board, in an opinion of 16 December 1996, referred to the withdrawal of his residence permit on 10 May 1995. In a supplementary opinion of 18 December 1996 the Board considered that the applicant could no longer be considered resident in Sweden.         On 7 January 1997 the Uppsala District Court convicted the applicant of complicity in aggravated fraud. He was sentenced to one year's imprisonment, ordered to be deported and banned from re-entering Sweden. According to the District Court's judgment, the applicant had argued against his possible deportation by referring to his "previous activities against the Iranian regime both in Iran and abroad". The District Court noted that the National Immigration Board had withdrawn his residence permit and had found no obstacles to deporting him. In ordering his deportation the District Court noted that the applicant had been repeatedly convicted both in Sweden and Denmark of similar offences (essentially relating to the forgery of passports which asylum-seekers had presented to immigration authorities).         The applicant did not lodge any ordinary appeal against the District Court's deportation order which thus gained legal force.         On 11 April 1997 the Legal Aid Authority (Rättshjälpsmyndigheten) refused the applicant legal aid for seeking to have the deportation order quashed pursuant to chapter 7, section 16 of the Aliens Act. On 25 April 1997 he lodged a request to that effect with the Government. Assisted by counsel, he alleged that as the leader of the Swedish section of the association "Sohl", he had allegedly helped thousands of Iranians (notably deserters, jews and converts to Christianity) leave Iran illegally and enter Sweden with a view to seeking asylum. The applicant furthermore alleged that he had repeatedly criticised the Iranian regime in Swedish, Norwegian, Danish and German media and that he was well-known both in Europe and Iran for his assistance to asylum-seeking Iranians. Finally, he referred to his activities within the guerrilla movement in Iran.         On 29 May 1997 the applicant requested the National Immigration Board to clarify whether the declaration of refugee status which he had allegedly received earlier on had been withdrawn. Reference was made to the Board's letter to him of 1 October 1996.         On 9 June 1997 the Legal Aid Board (Rättshjälpsnämnden) dismissed the applicant's appeal against the legal aid refusal of 11 April 1997.         In an opinion to the Government dated 16 June 1997 the Swedish Embassy in Iran considered that the applicant's alleged guerrilla and political activities were not of such a character that they constituted an obstacle to the enforcement of the deportation order. There were various indications that the Iranian authorities were aware of the applicant's extensive smuggling activities. On the other hand, the Swedish Embassy suspected that without contacts to high-ranking Iranian officials it would not have been possible for the applicant to organise those activities. In those circumstances there should be no risk for him to return to Iran. However, if his contacts were unable to protect him he might run a certain risk of being imprisoned for up to ten years for having organised "activities aimed at jeopardising Iran's national security". A more severe sentence could not be totally excluded.         On 3 July 1997 the Government dismissed the applicant's request to have the deportation order quashed, considering that there were no obstacles to the enforcement thereof nor any other special reasons for granting the request.         On 7 July 1997 the applicant again requested the Government to quash the deportation order, now essentially referring to a book and a booklet written by him which had allegedly been published in Iran. The book concerned religious matters and some copies thereof had allegedly been confiscated by the Iranian authorities. The booklet contained advice to prospective asylum-seekers. Counsel for the applicant stated that he had been aware of the book for a long time and that the booklet had been written three years ago.         On 7 July 1997 the Government (the Acting Minister of Justice) suspended the enforcement of the deportation order pending the outcome of the applicant's fresh petition. It was noted that the applicant would be released on parole at the earliest on 8 July 1997. The Government therefore ordered his detention pursuant to chapter 6, section 2, subsection 1 of the Aliens Act and informed him of his right to request the Supreme Administrative Court (Regeringsrätten) to review the detention order.         Following the applicant's release on parole on 8 July 1997 he was immediately detained pursuant to the Aliens Act on the basis of the Government's decision of 7 July 1997.         The applicant alleges that, on 29 July 1997, the Government supplemented its decision of 7 July 1997 with the reasons for his detention, i.e. the risk that he might otherwise continue his criminal activities or evade enforcement. The applicant furthermore alleges that the Government did not deal with his request for legal aid in the review proceedings.         It appears that, on or after 29 July 1997, the applicant requested the Supreme Administrative Court to review the lawfulness of his detention under the Aliens Act. On 14 August 1997 the Supreme Administrative Court upheld the detention order. On 5 September 1997 the Government decided to prolong the applicant's detention.         In a further opinion to the Government the Swedish Embassy in Iran in essence maintained its position of 16 June 1997 but corrected its previous opinion to the effect that the maximum prison sentence which the applicant might risk if returned to Iran was three years.         On 26 September 1997 the applicant withdrew his second petition to the Government to have the deportation order quashed. On 30 September 1997 the Government struck the request off its list but maintained the detention order.         On 6 October 1997 the National Immigration Board suspended the enforcement of the deportation order until further notice, having regard to the proceedings before the Commission.   On 23 October 1997 the Supreme Administrative Court dismissed the applicant's appeal against the detention order of 5 September 1997.   B.     Relevant domestic law         According to the Aliens Act, the possible deportation of an alien who has been found guilty of a criminal offence shall be considered by the court which convicted him or by the appeal court (chapter 4, section 8 and chapter 7, section 8). A person who is to be regarded as a refugee in need of a sanctuary in Sweden may not be deported on account of a criminal offence unless certain requirements are met (chapter 4, section 10). These restrictions are brought into effect when the alien has been issued with a declaration confirming his refugee status (chapter 3, section 6).         The Government may quash a deportation order which has been issued by a court following the alien's conviction and which has gained legal force. Alternatively, the Government may suspend the enforcement of the deportation order by granting a residence permit limited in time (chapter 7, section 16).         An adult alien may be detained for up to two months and exceptionally for a longer period inter alia in order to prepare the enforcement of a deportation order and provided he or she might otherwise go into hiding or take up or continue criminal activities in Sweden (chapter 6, section 2, subsection 1 (3) and section 4). An alien may furthermore be detained if his or her identity is unclear either on the arrival in Sweden or when a residence permit is being sought (chapter 6, section 2, subsection 1 (1)). Detention may also be ordered if it is necessary for the purpose of inquiring into the alien's right to remain in Sweden (chapter 6, section 2, subsection 1 (2)).         Detention under the Aliens Act can be ordered by, for instance, the competent Minister if the Government is the authority dealing with the principal matter (chapter 6, section 9). In that case an appeal unlimited in time lies with the Supreme Administrative Court (chapter 7, section 7).     COMPLAINTS   1.     The applicant complains that his forthcoming deportation to Iran would violate Article 3 of the Convention by subjecting him to a real risk of capital punishment, torture or other inhuman treatment. He essentially refers to his activities as a "refugee smuggler", to his criticism of the Iranian regime in media and to his book which was allegedly published in Iran on 3 June 1997 and distributed in three cities on 26 June 1997.   2.     In his submissions of 30 July 1997 the applicant also complains that he had no effective remedy against the National Immigration Board's decision of 10 May 1995 of which he was never officially notified.         In the same submissions the applicant furthermore complains that he had no effective remedy against the Government's decision of 3 July 1997 not to quash the deportation order.         In these respects the applicant invokes Article 13 of the Convention.   3.     In his submissions of 30 July 1997 the applicant furthermore complains that his first request for a court review of the lawfulness of his detention under the Aliens Act was not decided speedily. No such review was possible before 29 July 1997, when the Government allegedly provided the reasons for its detention order of 7 July 1997. The applicant invokes Article 5 para. 4 of the Convention.   4.     In his submissions of 30 July 1997 the applicant finally complains that he was denied legal aid both in the proceedings before the Government and in the proceedings regarding his detention for deportation purposes. He invokes no particular Convention provision.     PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 3 July 1997 and registered on 7 July 1997.         On 7 July 1997 the Commission decided to communicate to the respondent Government, pursuant to Rule 48 para. 2 (b) of the Rules of Procedure, the complaint under Article 3 of the Convention. Pursuant to Rule 36 of its Rules of Procedure, it also decided to indicate to the Government that it would be desirable in the interests of the parties and the proper conduct of the proceedings not to enforce the deportation order concerning the applicant until the Commission had examined the application at the latest on 19 September 1997.         On 30 July 1997 the applicant submitted further complaints.         On 18 September 1997 the Commission's indication under Rule 36 was prolonged until 31 October 1997 and, on 30 October 1997, it was prolonged until 12 December 1997.         The Government's written observations were submitted on 12 November 1997, after two extensions of the time-limit fixed for that purpose.         On 11 December 1997 the Commission's indication under Rule 36 was prolonged until 23 January 1998.         On 12 December 1997 the applicant was granted legal aid.         The applicant's observations in reply were submitted on 16 December 1997.     THE LAW   1.     The applicant complains that his expulsion to Iran would violate Article 3 (Art. 3) of the Convention by subjecting him to a real risk of capital punishment, torture or other inhuman treatment. He essentially refers to his activities as a "refugee smuggler", to his criticism of the Iranian regime in media and to his book which was allegedly published in Iran on 3 June 1997 and distributed in three cities on 26 June 1997. 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 consider that the domestic remedies have not been exhausted, since the applicant did not appeal against the District Court's judgment of 7 January 1997 which comprised the deportation order. In that judgment the applicant was, according to the Government's interpretation thereof, no longer considered a refugee, given that he was no longer in need of protection in Sweden. Accordingly, the special criteria applicable to the expulsion of a refugee did not apply. The applicant's petition to the Government with a view to having the deportation order quashed must be seen as an outflow of the institute of pardon and cannot be considered a remedy for the purposes of Article 26 (Art. 26) of the Convention. The examination of that petition did not amount to a review of the District Court's decision, given that the Government could only consider those circumstances which had not been examined in the criminal proceedings. Finally, the Government note that the applicant withdrew his second petition with a view to having the deportation order quashed.         In the alternative, the Government consider that the application is manifestly ill-founded. The Swedish authorities have gained considerable experience in examining asylum cases concerning Iranians. There have been no reports of ill-treatment of Iranians returned from Sweden following a refusal to grant them a residence permit. Many Iranian asylum seekers and holders of residence permits in Sweden are able to travel freely between the two countries. There is no indication that the applicant is or has been wanted by the Iranian authorities. The Government do not dispute that he is well-known for his smuggling activities and cannot exclude that he may have made critical statements about the Iranian regime both in Sweden and other countries. However, the Government are unable to confirm that the applicant smuggled persons out of Iran. On the contrary, various court records and investigations show that many of the Iranians whom the applicant has assisted left Iran lawfully and were only subsequently smuggled into Western countries. The Government cannot confirm the applicant's allegation that he has not returned to Iran since 1987. If, as he seems to have stated earlier on, he has visited Iran after arriving in Sweden this fact would speak against his assertions before the Commission. The Government furthermore note that he has refused to provide any verifiable information about the association "Sohl". According to the Swedish Embassy in Iran it almost certainly does not exist. The book allegedly written by the applicant has most likely never been published and the contents thereof would not seem to be blasphemous against Islam. Nor is there any certainty as to the alleged confiscation by the Iranian authorities of the booklet written by the applicant. At any rate this publication does not advise Iranians how they could leave their country illegally but rather how they could enter a Western country. Finally, the Government strongly believe that the applicant has provided the Swedish authorities with incorrect and incomplete information regarding his background in Iran and his activities in Sweden.         The applicant considers that he has exhausted domestic remedies by turning to the Government, that body being the highest Swedish authority in aliens cases. Moreover, in examining his request that the deportation order be quashed the Government were competent in some respects to make the same assessment as the District Court. There was no reason to expect the Government to reconsider its decision of 3 July 1997 which therefore must be considered the final one for the purposes of Article 26 (Art. 26) of the Convention. The applicant furthermore contends that his return to Iran would place him at risk of treatment contrary to Article 3 (Art. 3).         The Commission considers that it is not required to decide whether or not the facts alleged by the applicant disclose any appearance of a violation of the Articles invoked as, under Article 26 (Art. 26) of the Convention, it "may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law ...".         The Commission has recently rejected an application against Sweden due to the applicant's failure timely to seek leave to appeal to the Supreme Court against a judgment comprising a deportation order (see No. 34944/97, Dec. 8.9.97, unpublished). In another application against Sweden the applicant had likewise not requested leave to appeal against a deportation order issued in criminal proceedings against him but had later petitioned the Government to quash the order (No. 20002/92, Dec. 5.4.95, unpublished). In that case the Commission accepted that, in so far as there had been a change in the relevant circumstances, the applicant could be excused for having failed to seek leave to appeal to the Supreme Court before those changes had occurred.         In the present case the Commission recalls that the applicant did not appeal against the District Court's judgment of 7 January 1997 in which his deportation was ordered. Had such an appeal failed, he would have had a further possibility of seeking leave to appeal to the Supreme Court. Before the Commission the applicant has alleged that his book was published and distributed in Iran in June 1997, i.e. after the District Court's judgment had gained legal force. However, it transpires from the applicant's second petition to the Government dated 7 July 1997 that the book and the booklet had been written some time ago, the booklet as much as three years earlier.         The Commission therefore finds that, unlike in Application No. 20002/92, there is no indication that the gist of the applicant's various allegations relating to his purported risk of being treated contrary to Article 3 (Art. 3) on his return to Iran could not have been made already in the afore-mentioned criminal proceedings and ultimately in a request for leave to appeal to the Supreme Court.         In these circumstances the applicant's first petition to the Government in which he sought to have the deportation order quashed after it had already gained legal force cannot be considered a remedy for the purposes of Article 26 (Art. 26) of the Convention. Accordingly, the applicant has not exhausted the remedies available to him under Swedish law. Moreover, an examination of the application does not disclose the existence of any special circumstances which might have absolved him, according to the generally recognised rules of international law, from exhausting the remedies at his disposal in the criminal proceedings.         It follows that this complaint must be rejected for non-exhaustion of domestic remedies under Article 27 para. 3 (Art. 27-3) of the Convention.   2.     In his submissions of 30 July 1997 the applicant also complains that he had no effective remedy against the National Immigration Board's decision of 10 May 1995 of which he was never officially notified. Moreover, he had no effective remedy against the Government's decision of 3 July 1997. He invokes Article 13 (Art. 13) of the Convention which reads as follows:         "Everyone whose rights and freedoms as set forth in this       Convention are violated shall have an effective remedy       before a national authority notwithstanding that the       violation has been committed by persons acting in an       official capacity."   (a)    As regards the lack of an effective remedy against the National Immigration Board's decision of 10 May 1995, the Commission recalls that pursuant to Article 26 (Art. 26) of the Convention it may only deal with the matter if it has been brought to its attention within a period of six months from the date on which the final domestic decision was taken or from the date when a continuing situation ceased to exist (cf., e.g., No. 14807/89, Dec. 12.2.92, D.R. 72, p. 148).         The Commission notes that the applicant was made aware of the National Immigration Board's decision of 10 May 1995 at the latest during the criminal proceedings ending with the District Court's judgment of 7 January 1997. However, this complaint was introduced only on 30 July 1997, that is more than six months later.         It follows that this aspect of the complaint must be rejected pursuant to Article 27 para. 3 (Art. 27-3) of the Convention for non- compliance with the six months' rule.   (b)    As regards the lack of an effective remedy against the Government's decision of 3 July 1997, the Commission recalls its finding in para. 1 above that, prior to that decision, the applicant had had at his disposal ordinary remedies of which he failed to avail himself in the course of the criminal proceedings against him. The Commission considers that in such circumstances Article 13 (Art. 13) of the Convention cannot be interpreted as requiring an extraordinary remedy such as the possibility to petition the Government to quash the deportation order. Furthermore, the fact that the applicant had no remedy against the Government's refusal of such a petition does not raise any issue under Article 13 (Art. 13). Accordingly, there is no indication of any violation of that provision.         It follows that this aspect of the complaint must be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.     In his submissions of 30 July 1997 the applicant furthermore complains that he was denied a speedy examination of his first request for a court review of the lawfulness of his detention under the Aliens Act. He invokes Article 5 para. 4 (Art. 5-4) of the Convention which reads as follows:         "Everyone who is deprived of his liberty by arrest or       detention shall be entitled to take proceedings by which       the lawfulness of his detention shall be decided speedily       by a court and his release ordered if the detention is not       lawful."         The Commission recalls that the question whether proceedings within the meaning of Article 5 para. 4 (Art. 5-4) complied with the condition of speed cannot be defined in abstracto but must be assessed in the light of the circumstances of the particular case (see, e.g., Eur. Court HR, Sanchez-Reisse v. Switzerland judgment of 21 October 1986, Series A   no. 107, p. 20, para. 55). The Commission must take account of the general conduct of the proceedings and the extent to which delays can   be attributed to the applicant or his legal representative (see, e.g., No. 11531/85, Dec. 7.10.87, D.R. 53, pp. 128, 139 with further reference).         In the present case the Commission notes that already the Government's decision of 7 July 1997 conferred on the applicant the right to seek a court review of the lawfulness of his detention under the Aliens Act. It is true that the decision of 7 July 1997 only referred to chapter 6, section 2, subsection 1 of the Aliens Act and not expressly to any particular number in that subsection. Nevertheless, given that the applicant had already been issued with a deportation order, he cannot have been in any doubt as to the legal provision on which the deprivation of his liberty had been based, namely subsection 1 (3) of the said provision which covered detention for enforcement purposes.         In these circumstances the Commission does not find that the applicant was obliged to await the reasons allegedly adduced by the Government on 29 July 1997 before turning to the Supreme Administrative Court. Accordingly, the proceedings to which this complaint refers must be considered to have started only with the applicant's request which appears to have been lodged on or after 29 July 1997. They ended with the Supreme Administrative Court's decision of 14 August 1997 and thus lasted a   maximum of approximately sixteen days. In the circumstances of the case such a delay cannot be considered to have exceeded the period permissible under Article 5 para. 4 (Art. 5-4) of the Convention. Accordingly, there is no indication of a violation of that provision.         It follows that this complaint must also be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   4.     In his submissions of 30 July 1997 the applicant finally complains that he was denied legal aid both in the proceedings before the Government and in the proceedings regarding his detention for deportation purposes. He invokes no particular Convention provision.   (a)    As regards the denial of legal aid in the proceedings with a view to having the deportation order quashed, the Commission finds that they did not involve any determination of the applicant's civil rights and obligations or of any criminal charge against him. Accordingly, Article 6 (Art. 6) of the Convention is not applicable.         It follows that this aspect of the complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2).   (b)    As regards the purported denial of legal aid in the proceedings for the review of the applicant's detention under the Aliens Act, this matter could in principle raise an issue under the above-mentioned Article 5 para. 4 (Art. 5-4) of the Convention as regards the lawfulness of the detention (cf., e.g., Bouamar v. Belgium judgment of 29 February 1988, Series A no. 129, p. 24, para. 60).         However, the Commission finds no substantiation of the applicant's allegation that he requested legal aid in the review proceedings. Accordingly, there is no indication of any violation of Article 5 para. 4 (Art. 5-4) of the Convention.         It follows that this aspect of the complaint 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.           M. de SALVIA                         S. TRECHSEL          Secretary                            President       to the Commission                    of the Commission