CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 28 juin 2001

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Rozakis , President ,   Mr   A.B. Baka ,   Mr   G. Bonello ,   Mrs   V. Strážnická ,   Mr   P. Lorenzen ,   Mr   M. Fischbach ,   Mr   A. Kovler , judges , and   Mr   E. Fribergh , Section Registrar , Having regard to the above application introduced on 3   March 2000 and registered on 25 April 2000, Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court and the fact that this interim measure has been complied with, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows:   THE FACTS The applicant is an Iranian citizen, born in 1966. At present he is residing in Denmark awaiting deportation to Iran. He is represented by Mr   Jørgen   Lange, a lawyer practising in Copenhagen. The respondent Government are represented by their Agent, Mr Hans Klingenberg of the Ministry of Foreign affairs. The facts of the case, as submitted by the parties, may be summarised as follows. In 1986 the applicant commenced his military training in Iran. It is not clear whether he participated directly in the war between Iran and Iraq. On 25 April 1987 he deserted nevertheless and fled to Turkey where he arrived on 5 May 1987. It appears that the applicant stayed in Turkey and in Greece for some time. He arrived in Denmark on 20 August 1989 and applied for asylum. Pursuant to the practice of the Danish aliens authorities at that time, all asylum-seekers from Iran who had deserted and departed before the armistice between Iran and Iraq in the summer of 1988 were granted a residence permit. Accordingly, on 12 October 1990 the applicant was granted a residence and work permit. On 25 August 1994 the residence permit became permanent. In 1992 the applicant met a Danish woman, A, with whom he started cohabiting. A daughter was born out of the relationship on 16 October 1996. A who is a mother at home also has a daughter born in 1989 from a previous relationship. On 17 December 1996 the applicant was arrested and detained on remand charged, inter alia , with drug trafficking. By judgment of 1   October   1997 the City Court of Hobro ( retten i Hobro ) found the applicant guilty of drug trafficking. He was sentenced to three years’ imprisonment and expelled from Denmark with a life-long ban on his return there. The applicant appealed against the judgment but later withdrew the appeal for which reason the City Court judgment gained legal force. One week before the pronouncement of the City Court judgment, on 23   September 1997, the applicant and A married. On 14 July 1998, pursuant to section 50 of the Aliens Act, the applicant instituted proceedings in the City Court of Hobro claiming that material change in his circumstances had occurred for which reason he requested the court to review the expulsion order. He referred to his family situation and furthermore alleged, with reference to information obtained from Amnesty International, that it could not be ruled out that he would risk severe punishment in Iran for having deserted from the army and also receive perhaps a life sentence for the narcotics crimes committed in Denmark. On 11 September 1998 the City Court rejected the applicant’s request as it did not find that the applicant’s situation had changed to such an extent that there was any reason to revoke the expulsion order. This decision was upheld by the High Court of Western Denmark ( Vestre Landsret ) on 9   October 1998. On 17 December 1998 the applicant had served two-thirds of his sentence and was to be released on parole. Since he did not consent to the deportation and refused to leave the country voluntarily, he was detained as from that date in accordance with the Aliens Act with a view to be returned to Iran. Also in accordance with the Aliens Act, the applicant availed himself of the possibility, prior to the enforcement of a deportation, to bring before the aliens authorities ( Udlændingestyrelsen ) the question whether he could be returned to Iran, since pursuant to the Aliens Act an alien must not be returned to a country in which he or she will risk persecution on the grounds set out in Article 1 A of the Convention of 28   July   1951 concerning the Status of Refugees. The aliens authorities found, on 13 January 1999, that the applicant would not risk persecution in Iran of a kind which could constitute the basis for his remaining in Denmark. The applicant appealed against this decision to the Aliens Appeals Board ( Flygtningenævnet ) which on 16   April   1999 requested the Ministry for Foreign Affairs to provide more information on the situation in Iran. Having procured contributions from several different authorities e.g. the embassy in Teheran and the UNHCR via the UN Mission in Geneva, on 3   November   1999 the Ministry was able to provide the information requested. By referring to two enclosed letters from the UNHCR and a local source in Iran, the Ministry stated that it is in fact possible under section 7 of the Iranian Criminal Code to be sentenced to double punishment for criminal offences committed abroad and that the Iranian authorities regularly have stated that Iranians convicted abroad of offences punishable under Islamic law will also be prosecuted in Iran. However, the UNHCR had knowledge only of a single case in which the issue of double punishment had occurred and that case concerned an Iranian who had committed homicide abroad. On 4 January 2000 the Aliens Appeals Board agreed with the aliens authorities. In its decision the majority of the Board stated as follows: “The majority of the members of the Aliens Appeals Board does not find that the applicant, who entered the country in 1989, upon return to his home country risks persecution ... due to the circumstances which at the time constituted the basis for granting asylum. Furthermore, the majority finds that the applicant upon return to his home country does not risk further punishment for the crimes for which he has served his sentence here. In this connection the majority of the Board has found it of importance that the applicant is not registered with Interpol. There is no reason to assume that the Danish authorities have informed the Iranian authorities of the crimes. There are no other reasons to believe that the Iranian authorities are aware of the crimes. Nor that the authorities will be informed thereof. The majority of the Board notes in addition that the background information does not support the view that there is a considerable general risk of double punishment since apparently there is no public knowledge of cases concerning circumstances similar to [the applicant’s]. The Board therefore upholds the aliens authorities’ decision that [the applicant] may be returned.” Thereafter, for the second time relying on section 50 of the Aliens Act, claiming that material change in his circumstances had occurred, the applicant requested the City Court of Hobro to reconsider the expulsion decision. At its disposal the court had the same material as the Aliens Appeals Board and a number of statements from doctors concerning the applicant’s health situation. By judgment of 14   February 2000 the City Court revoked the decision to expel the applicant. In its judgment the court stated as follows: “The court does not find that important new information has been presented concerning [the applicant’s] health and family situation. The court does not find either that there is lack of proportionality between the sentence imposed and expulsion. On the other hand the court finds that the material provided by the Ministry for Foreign Affairs on 3 November 1999 gives considerably better information about the risk of double punishment. The Aliens Appeals Board’s decision does not contain a further evaluation of this information, although it appears that unanimity could not be reached on that point. Although [the applicant] is not registered with Interpol and although there is no reason to believe that the Danish authorities have informed the Iranian authorities about the criminal offences, the court finds it obvious that [the applicant] will be asked to provide the Iranian authorities with an explanation about his reasons for returning and that he will have considerable difficulties in explaining this. Therefore, the court is not convinced that the applicant does not risk punishment following deportation to Iran for the acts for which he has served a sentence here.” On 3 March 2000 the High Court of Western Denmark quashed the above decision and dismissed the applicant’s request for a reconsideration of the expulsion order since, pursuant to section 50 of the Aliens Act, an expelled alien is entitled to only one judicial review of the question of expulsion. The applicant’s application for leave to appeal against this decision, was granted by the Leave to Appeal Board on 5   May   2000. On 11 May 2000 the High Court decided to release the applicant from his detention as both the Supreme Court ( Højesteret) and the European Court of Human Rights were dealing with his complaints, and therefore it was uncertain when a deportation could be carried out. Accordingly, all together the applicant was detained with a view to be deported from 17   December   1998 until 11 May 2000. During this period the City Court decided on 21 occasions to extend the applicant’s detention. Twice he appealed against these decisions. Once with the result that on 18   February   2000 the High Court upheld a City Court decision of 14   February 2000, against which the applicant did not apply for leave to appeal to the Supreme Court, and the second time with the result that he was   released by the High Court through its above decision of 11   May   2000, thereby revoking a City Court decision of 5   May   2000. On 7 September 2000 the Supreme Court upheld the High Court’s decision of 3 March 2000 to dismiss the applicant’s request for a reconsideration of the expulsion order as it agreed with the High Court’s finding that a request for a review of an expulsion order pursuant to section   50 of the Aliens Act can only be examined once by the courts. On 20   April 2001 the applicant and his wife had a son. COMPLAINTS 1.     The applicant alleges that a return to Iran would expose him to a risk of being subjected to treatment contrary to Article 3 or even worse execution contrary to Article 2, and also that the risk of double punishment violates Article 4 of Protocol No. 7 to the Convention.   2.     Under Article 5 of the Convention the applicant complains of the fact that he was detained with a view to being deported to Iran from 17   December 1998 until 11   May   2000.   3.     Under Article 6 of the Convention the applicant maintains that due to the length of the proceedings concerning the revocation of the expulsion order this order ought to be declared null and void.   4.     Finally, he complains that his imminent deportation to Iran would be contrary to Article   8 of the Convention in that he would lose contact with his wife, children and stepdaughter. THE LAW 1.     The applicant complains that returning him to Iran would be contrary to Articles 2 and 3 of the Convention and Article 4 of Protocol No. 7 to the Convention, which in so far as relevant, read as follows: Article 2 § 1of the Convention:   “Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. Article 3 of the Convention:   “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 4 §1 of Protocol No. 7 to the Convention: “No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.” The applicant maintains that he risks severe punishment and even capital punishment upon returning to Iran. He refers in support of this submission to the information given by the Ministry for Foreign Affairs on 3   November   1999. The Government point out that the grounds originally resulting in the issuing of the applicant’s residence permit were no longer present after the armistice between Iran and Iraq in the summer of 1988, as Iran thereafter could no longer be considered an aggressor country. Thus, the applicant does not risk being sent into active service if returned. Furthermore, there is no substantiation for the applicant’s allegation that a person who has deserted the military in Iran is sentenced to death or to any other sanction considered disproportionate compared to Danish legislation. As regards the issue of whether the applicant risks being punished twice for the drug offence, the Government submit, in the light of the information from the Ministry for Foreign Affairs, that UNHCR only knows of a single case in Iran involving the issue of double punishment. Consequently, there is no substantial general risk thereof. In the present case the Government also find no real concrete risk thereof, as it is improbable that the Iranian authorities would gain knowledge of the applicant’s conviction. The applicant’s name has not been notified to Interpol, nor did the Danish authorities give the Iranian authorities any information on the applicant’s offences. The Government explain the intended enforcement of the expulsion of the applicant in the following terms: the Iranian authorities usually demand that a travel document be issued from the Iranian embassy in Denmark. The embassy usually demands that the person in question is presented and gives the information necessary to confirm his identity with the Iranian authorities in Iran. Prior to a presentation of aliens at the Iranian embassy, the National Commissioner of Police always requests the embassy in writing to issue a travel document to the person involved. In this letter, the National Commissioner of Police states only that the person in question has been refused continued residence in Denmark. Thus, nothing is mentioned about any convictions in Denmark. The Government have no knowledge of the extent to which the embassy demands further information from aliens presented, as the interview is conducted directly with the embassy staff without an interpreter, and often in a separate room. In the present case, however, the Iranian embassy in Copenhagen has stated to the National Commissioner of Police that the applicant himself contacted the embassy around January/February 2000 and requested new Iranian identity papers. This is not contested by the applicant. The Court recalls that Contracting States have the right to control the entry, residence and expulsion of aliens. The right to asylum is not protected in either the Convention or its Protocols (cf. for example Vilvarajah and others v. the United Kingdom judgment of 30 October 1991, Series A no.   215, p. 34, § 102). However, expulsion by a Contracting State of an alien who has obtained asylum may give rise to an issue under Article 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 or she is to be expelled (ibid., p. 34, § 103). A mere possibility of ill ‑ treatment, however, is not in itself sufficient to give rise to a breach of Article 3 (ibid., p. 37, § 111). The Court recalls that the applicant was granted asylum in Denmark as according to the information available he fell within the aliens authorities’ practice applicable at that time. As to the risk of severe or even capital punishment on return, alleged by the applicant for having evaded his military service in Iran in 1987, the Court shares the Government’s opinion that there are no substantial grounds for believing that such a risk exists. As to the risk of double punishment the Court considers that the information given by the Ministry for Foreign Affairs on 3   November 1999 does not disclose any substantial general risk thereof. The pertinent question is therefore whether the Iranian authorities have or will have knowledge of the applicant’s conviction. Having regard to the fact that the Danish authorities do not disclose to the Iranian authorities any information on the applicant’s offences and conviction, the Court also in this respect shares the Government’s opinion that this risk is rather limited, notably in the light of the fact that the applicant himself voluntarily contacted the Iranian embassy in the beginning of 2000 with a view to being issued with identity papers. Thus, the Court considers, on the evidence before it concerning the applicant’s background and the current situation in Iran, that it has not been established that there are substantial grounds for believing that the applicant would be exposed to a real risk of being subjected to treatment contrary to   the Convention if expelled to that country. As a consequence of the above the Court does not find that the facts of the case disclose any appearance of a violation of Article 2 or Article   3 of the Convention. As to Article 4 of Protocol No. 7 to the Convention the Court recalls that this provision does not guarantee respect for the principle ne bis in idem where a person has been or will be tried or punished by the courts of different States. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35   §   3 of   the Convention, and must be rejected in accordance with Article 35   §   4.   2.     The applicant also complains of the length of his detention with a view to being deported to Iran, which lasted from 17 December 1998 until 11   May   2000. He invokes Article 5 of the Convention which as far as relevant, reads as follows: “1.     Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (f)     the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition...” The Government submit that this complaint is inadmissible for non-exhaustion of national remedies, since the applicant failed in 19 out of 21 instances to appeal the City Court’s decisions to extend the applicant’s detention with a view to deportation. Furthermore, the applicant did not request the Leave to Appeal Board for leave to appeal the High Court’s decision of 8   February   2000 which upheld the City Court’s decision of 14   February   2000. The Court recalls that the purpose of Article 35 § 1, which sets out the rule on exhaustion of domestic remedies, is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court see, inter alia, Selmouni v. France [GC] , no. 25803/94, § 74, ECHR 1999-V. The rule in Article 35 § 1 is based on the assumption, reflected in Article 13 with which it has a close affinity, that there is an effective domestic remedy available in respect of the alleged breach of an individual’s Convention rights. In the present case, however, the Court does not consider it necessary to consider whether the applicant has exhausted national remedies because even assuming this to be the case, the applicant’s complaint is in any event manifestly ill-founded for the following reasons. It is undisputed that the detention of the applicant after his release on parole on 17   December   1999 was in accordance with a procedure prescribed by Danish law. The Government submit that while the applicant was detained for a period of 1 year, 4 months and 24 days all together, with a view to enforce the expulsion order contained in the judgment of October   1997, the expulsion   proceedings were in progress during the entire period and prosecuted with due diligence by all authorities involved. In addition, with regard to the period between 4   January 2000 and 11   May   2000 the applicant’s detention was extended due to the applicant’s request pursuant to section 50 of the Aliens Act for a second judicial review of the expulsion of the judgment of 1   October   1997. Accordingly, the Government consider that this period of the detention was caused by the applicant’s own circumstances. The applicant submits that the aliens authorities were aware, even before he was to be released on parole that he objected to the expulsion order and his return to Iran. Thus, the authorities’ initiative regarding the enforcement procedure should have been taken much sooner than the actual date of his release on parole. The Court recalls that any deprivation of liberty under Article 5 § 1 (f) will be justified only for as long as deportation proceedings are in progress. If such proceedings are not prosecuted with due diligence, the detention will cease to be permissible under Article 5 § 1 (f) see the Chahal v. UK judgment of 15   November 1996, Reports of Judgments and Decisions 1996 ‑ V, p. 1863, § 113 and the Quinn v. France judgment of 22   March   1995, Series A no. 311, p. 19, § 48, and also the Kolompar v. Belgium judgment of 24 September 1992, Series A no. 235-C, p. 55, § 36). As to the length of the detention, the issue which arises is whether it has ceased to be justified because the proceedings have not been pursued with the requisite speed see inter alia the Kolompar v. Belgium judgment, cited above, p. 55, § 36 and application 32025/96, decision of 25   October   1996, Decisions and Reports (DR) 87A, p.   173. In the present case the Court notes that the applicant was detained with a view to deportation on 17   December   1998. As the applicant could not consent to the deportation, he availed himself of the possibility to bring before the alien authorities, and on appeal, the Aliens Appeal Board the question whether on return to Iran he would risk double punishment. Accordingly, his detention was extended awaiting the outcome of these proceedings. The Court recalls that on 16   April   1999 the Aliens Appeal Board requested the Ministry for Foreign Affairs to provide new current and reliable information on the situation in Iran. After having procured contributions from several different sources e.g. the embassy in Teheran and the UNHCR via the UN Mission in Geneva, on 3   November   1999 the Ministry was able to provide the information requested. Two months later, on 4   January 2000, the Aliens Appeal Board made its decision. In the period thereafter until the applicant’s release on 11   May   2000 the detention was extended awaiting the outcome of the applicant’s claim for a second request for a judicial review of the expulsion order contained in the judgment of   1   October   1997. In these circumstances, and since nothing in the material submitted to the Court discloses that the proceedings were not in progress during the entire period and prosecuted with due diligence by the Danish authorities involved, the Court finds that the applicant’s detention did not cease to be justified. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35   §   3 of   the Convention, and must be rejected in accordance with Article 35   §   4.   3.     The applicant complains furthermore under Article 6 of the Convention of the length of the expulsion procedure. The Court recalls that rescission of an expulsion order does not concern the determination of a “civil right” or a “criminal charge” for the purposes of Article 6 of the Convention (see Maaouia v. France [GC], no. 39652/98, §   38, 5 October 2000,   to be published). It follows that this complaint is incompatible ratione materie with the provisions of the Convention, within the meaning of Article 35   §   3, and must be rejected, in accordance with Article 35   §   4 of the Convention.   4.     The applicant complains finally, under Article 8 of the Convention, that as a result of his expulsion from Denmark, he will be separated from his wife and children who cannot be expected to follow him to Iran. Article 8 of the Convention reads as follows: “1.     Everyone has the right to respect for his private and family life, his home and his correspondence. 2.     There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” The Government submit that since the applicant withdrew his appeal to the High Court of the judgment of 1   October   1997 from the City Court of Hobro, he did not exhaust an ordinary, available and effective remedy which is a condition for admitting the application to examination. The fact that the applicant later had the expulsion order reviewed by the court pursuant to section 50 of the Aliens Act cannot lead to another result as, in order to request a review, a material change in the alien’s circumstances must have occurred from the time when the expulsion became final and until the person sentenced to expulsion brings the case before the court, thus in the Government’s view, this kind of review cannot be considered an effective remedy within the meaning of Article 35   of   the   Convention. The Court notes that pursuant to section 50 of the Aliens Act, by claiming that a material change had occurred in his circumstances the applicant was entitled to have the question of revocation of the order to deport him brought before the courts, which at the same time were empowered to rescind the expulsion decision entailed in the original judgment of 1   October   1997. Accordingly, this remedy could provide redress for the applicant’s complaint. Thus, the Court considers that the applicant has exhausted a remedy which is both adequate and effective. The Government submit in the alternative that the present case discloses no violation of Article 8 of the Convention. Given the serious offence which the applicant committed in Denmark the measure of expulsion was called for in the interest of public safety, for the prevention of disorder or crime, and for the protection of the rights and freedoms of others, and was necessary in a democratic society within the meaning of Article 8 § 2 of the Convention. The Government draw attention to the fact that the applicant has very strong ties with his country of origin since he only left Iran as an adult and had his entire school education in Iran. He masters the local language, he served part of his compulsory military service and he has family there. In comparison the applicant does not have strong ties with Denmark. At the time the expulsion decision was made he had resided for only 8 years in Denmark. Moreover, in the Government’s view, there is no evidence to prove that the applicant’s spouse, the children of the marriage, and the spouse’s child of another relationship will not be able to accompany the applicant to Iran. The applicant submits that his wife, his children and the daughter from his wife’s previous relationship cannot be expected to go to Iran. His wife is not a Muslim and the daughter from his wife’s previous relationship refuses to follow him to Iran. Accordingly, an expulsion would result in the breaking up of his family life situation. The Courts considers, in the light of the parties’ submissions, that the complaint raises serious issues of facts and law under the Convention, the determination of which should depend on an examination of the merits.   The Courts concludes therefore that this complaint is not manifestly ill ‑ founded within the meaning of Article 35   §   3 of the Convention. No other ground for declaring it inadmissible has been established. For these reasons, the Court unanimously Declares admissible, without prejudging the merits of the case, the applicant’s complaint that his expulsion from Denmark would violate his right to respect for his family life; Declares inadmissible the remainder of the application. Erik Fribergh   Christos Rozakis   Registrar   President