CEDH · CASELAW;CLIN;ENG — 8 novembre 2005

.s3ABFC313 { font-size:10pt } .sEB86A30B { margin-top:0pt; margin-bottom:14pt; page-break-after:avoid } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .s9FF10068 { margin-top:0pt; margin-bottom:12pt } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s5CB9E8AB { margin-top:12pt; margin-bottom:0pt; text-align:justify; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } Information Note on the Court’s case-law No. 80 November 2005 Bader and Kanbor v. Sweden - 13284/04 Judgment 8.11.2005 [Section II] Article 2 Article 2-1 Death penalty Impending expulsion to Syria where applicant had been sentenced to death in absentia : violation   Article 3 Expulsion Impending expulsion to Syria where applicant had been sentenced to death in absentia : violation   Facts :The applicants, a couple and their two minor children, are Syrian nationals living in Sweden. In 2002 they made several requests for asylum which were all rejected, and a deportation order was served on them. In 2004 the family submitted a fresh asylum request and sought a stay of execution of the expulsion order. They referred to a Syrian court judgment of November 2003 which stated that Mr   Bader had been convicted, in absentia ,of complicity in a murder and sentenced to death. The judgment stated that Mr   Bader and his brother had, on several occasions, threatened their brother-in-law because they considered that he had ill-treated their sister and paid too small a dowry, thereby dishonouring their family. In 1998 Mr   Bader’s brother had shot the brother-in-law, after planning the murder with Mr   Bader, who had provided the weapon. Noting that the two brothers had absconded, the Syrian court stated that the judgment had been delivered in the accused’s absence and could be re-opened. In 2004 the Aliens Appeals Board rejected the applicants’ request for asylum. It relied on research carried out by a local lawyer engaged by the Swedish Embassy in Syria and considered that should Mr   Bader return to his country of origin the case against him would be re-opened and he would receive a full retrial. If he were to be convicted, he would not be given the death sentence, as the case was “honour-related”. The Board therefore found that the applicants’ fears were not well-founded and that they were not in need of protection. Law :The Court noted that the Swedish Government had obtained no guarantee from the Syrian authorities that Mr   Bader’s case would be re-opened and that the public prosecutor would not request the death penalty at any retrial. In those circumstances, the Swedish authorities would be placing Mr   Bader at serious risk by sending him back to Syria. Mr   Bader had a justified and well-founded fear that the death sentence against him would be executed if he was forced to return to his home country. Moreover, since executions are carried out without any public scrutiny or accountability, the circumstances surrounding his execution would inevitably cause Mr   Bader considerable fear and anguish while he and the other applicants would all face intolerable uncertainty about when, where and how the execution would be carried out. Furthermore it transpired from the Syrian judgment that no oral evidence had been taken at the court’s hearing, that all the evidence examined had been submitted by the prosecutor and that neither the accused nor even his defence lawyer had been present. Because of their summary nature and the total disregard of the rights of the defence the Syrian criminal proceedings therefore had to be regarded as a flagrant denial of a fair trial which gave rise to a significant degree of added uncertainty and distress for the applicants as to the outcome of any retrial in Syria. In conclusion, the death sentence imposed on Mr   Bader following an unfair trial would inevitably cause the applicants additional fear and anguish as to their future, if they were forced to return to Syria as there existed a real possibility that the sentence would be enforced in that country. Thus, having regard to all the circumstances of the case, there were substantial grounds for believing that Mr   Bader would be exposed to a real risk of being executed and subjected to treatment contrary to Articles 2 and 3 if deported to his home country. Conclusions: Violation of Articles 2 and 3 (unanimously).   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes