CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 16 mars 1990

.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. 15795/89                       by R.M.                       against Sweden             The European Commission of Human Rights sitting in private on 16 March 1990, the following members being present:                 MM. C.A. NØRGAARD, President                   S. TRECHSEL                   E. BUSUTTIL                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS                   G. BATLINER                   J. CAMPINOS                   H. VANDENBERGHE              Mrs.   G.H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ                   L. LOUCAIDES                Mr.   J. RAYMOND, Deputy 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 11 November 1989 by R.M. against Sweden and registered on 21 November 1989 under file No. 15795/89;           Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:   THE FACTS           The facts of the case, as submitted by the applicant, may be summarised as follows.           The applicant is a Syrian citizen born in 1948.   Before the Commission he is represented by Mr. Per Stadig, a lawyer practising in Stockholm.           In December 1977 the applicant was expelled from Sweden to Syria.   Upon his arrival in Syria the applicant was imprisoned and in prison he had to face torture.   Eventually the applicant was transferred to Syrian military service, from which he fled.   He came to Sweden and, on 24 August 1978, was granted a permit to stay in Sweden.           After having been convicted of a criminal offence by the Solna District Court (tingsrätt) on 23 May 1980 the applicant was expelled from Sweden.   The applicant went to France and from there to Lebanon.           The applicant came back to Sweden in November 1987.   The authorities failed to deport him to Lebanon at the time.   The question of the enforcement of the deportation of the applicant was transmitted to the National Immigration Board (statens invandrarverk) on 3 November 1987.   On 20 January 1988 the National Immigration Board decided that the applicant should be deported to Syria.   The applicant appealed to the Government which in a decision of 18 May 1989 rejected the appeal.           After the Government's decision the applicant has on two occasions lodged a fresh request to the National Immigration Board for a residence permit.   The National Board has refused to grant such a request and to stop the deportation.   These decisions are not subject to appeal.           The most recent decision in the case by the National Immigration Board is dated 2 November 1989.   The decision indicates that the applicant is now in hiding.   It states the following:   "Makdessi is expelled from the Realm with a prohibition to return here following a judgment by the Solna District Court of 23 May 1980 which has acquired legal force.   The Government have in their decision of 18 May 1989 confirmed the National Immigration Board's decision of 20 January 1988 that there are no obstacles under Section 77 or 80 of the old Aliens Act (utlänningslagen) against enforcement of the expulsion of Makdessi to his home country Syria.   On 30 August 1989 Makdessi submitted a fresh request for a residence permit to the National Immigration Board on the ground that he runs an obvious risk of being subjected to torture if he is forced to return to Syria.   The National Immigration Board found that Makdessi's application was based on circumstances which had already been examined in the case about the enforcement of his expulsion and therefore rejected his request in a decision of 5 September 1989.   On 11 October 1989 Makdessi submitted again an application to the National Immigration Board that he be granted a residence permit and requested a stay of the enforcement. Makdessi has again invoked as grounds for his application that he runs a risk of being subjected to torture in his home country if he is forced to return there.   In support of his application he invokes that also Amnesty International has made this assessment.   On 13 October 1989 the National Immigration Board decided to stay, until further notice, the enforcement of the expulsion.   Assessment:   The National Immigration Board considers that both Makdessi's application and the letter invoked by him from Amnesty International are based on circumstances which have previously been examined by the Government in the case about enforcement of his expulsion.   Makdessi's application must therefore be rejected under Chapter 2 Section 5 paragraph 3 of the 1989 Aliens Act."           The matter of enforcement of the deportation order is now pending before the police authority of Katrineholm and the applicant's expulsion is imminent.   The applicant has been in contact with Amnesty International which has investigated his case.   The following is quoted from a letter from the Swedish section of Amnesty International dated 8 June 1989, addressed to the International Secretariat of Amnesty International, and which summarises what Mr.   Makdessi has told the refugee co-ordinator of the Swedish section:   "R.M. came for the first time to Sweden in 1975 but his asylum application was rejected and he was sent back to France from where he had come on his way to Sweden.   In 1977 he made another effort to reach Sweden and that time the Swedish authorities said he didn't have strong enough reasons for asylum and once more he was expelled, but this time to Syria.   Makdessi had deserted from the Syrian army and as a consequence he was taken by the Syrian police as soon as he arrived to Damascus under Swedish police escort.   After being kept at the airport for a few hours he was taken to Marje police station and from there the Security Police took over.   He was transferred to a very high building in Damascus (he does not know the name of it) and there he was heavily beaten and tortured.   However he stayed there only for some days and after that the military police in Damascus presented him to a military council that decided that he should do his military service in Aleppo. The camp he was taken to is called Haneno.   He managed to desert after two months and came back to Sweden through Lebanon.   The arrest and torture took place in December 1977. Apart from being a deserter and in danger if sent back to Syria, he is in big danger even in Lebanon and this is due to the following facts:   In 1975 he became member of the Shamounist party 'National Liberation' and his main occupation was to hide weaponry in various parts of the area e.g. churches. His leader was called George Adouan and the activities were concentrated in the eastern part of Beirut named Tajouni. He has also been active under Hobeika, but that only until he discovered the co-operation between Hobeika and Syria.   Hobeika has, according to Makdessi repeatedly, sent Syrian citizens to Syria, where they are arrested and tortured.   The party is called Lebanese Resistance Force and his leader, from whom he received direct orders was called Marcel Asouf.   He is now living in the USA.   His activities with the Lebanese Resistance Force cover the period 1981-1985.   All this makes Makdessi very much afraid to return to Lebanon, where he will probably be shot down by Hobeika people.   There exists even another element that makes an eventual deportation to Syria dangerous for Makdessi: his uncle, Abdul Majid Magdoni who has been a minister in Syria is imprisoned since 1979.   He had been a member of the Naserist Party.   The last time he entered Sweden it was on 27 September 1987 and since then all the authorities have rejected his asylum application.   Now he is going to be sent to Syria within the coming weeks.   We believe that this is due mostly to the fact that he spent 16 months in jail for narcotic crime in 1980-1981.   As far as I understand he was convicted for a similar crime in Holland in 1976.   In Syria he has never been brought in front of a court and there exists no court decision against him.   He does not have in his hands any documents relevant to his descriptions.   As you can understand it is impossible for us to control this story and if it is true then it seems that it is a case that AI could support.   We would be very grateful to have your comments and advice."           A letter dated 6 October 1989 from the International Secretariat of Amnesty International reads as follows:   "Further to this case Amnesty International wishes to reiterate its concern about the risks to Makdessi's welfare and safety should he be returned to Lebanon.   Although Amnesty International could make no specific assessment as to the level or importance of his past political activities, the Organisation believes that given his past political background there are reasonable grounds to fear that upon arrest he would be subjected to torture or ill-treatment by Syrian forces or Syrian allies in Lebanon.   In Amnesty International's experience victims of torture have included not only the well-known activists within opposition groups but also other members or sympathisers who are neither highly active nor prominent within their groups.   Given the series of human rights violations by Syrian forces as documented over the years by Amnesty International the Organisation fears for the safety of R.M..   The Organisation urges the Swedish authorities to take into account the provisions of Article 3 of the UN Convention against Torture (ratified by the Swedish Government in 1986) which states:   '1.      No State Party shall expel, return ('refouler') or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.   2.       For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.'"           The applicant submits that the immediate background to his leaving Beirut was an incident in a hospital in Beirut where he was staying for about one month on account of an osteitis.   After a quarrel with another patient he was brought to the military police headquarters where he was ill-treated.   He was kicked in the head and on his body and was hit with the butt end of a rifle and lightly with a whip.           After this incident he decided to leave Beirut.   He left by boat on 5 September 1987 to Larnaca.   He flew from Larnaca to Vienna, then to Munich, then to Milan.   He stayed in Italy three weeks and on 27 September he flew to Stockholm via Vienna.   COMPLAINTS   1.       The applicant alleges that the decision to deport him to Syria violates Article 3 of the Convention.   2.       The applicant also alleges a violation of Article 13 of the Convention on the ground that no appeal was available with regard to the decision of the National Immigration Board of 2 November 1989.   PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 11 November 1989 and registered on 21 November 1989.           On 21 November 1989 the President of the Commission, following the applicant's request that the Commission indicate to the Government that they should not deport the applicant until the Commission had examined the application, decided not to give any indication to the Government under Rule 36 of the Commission's Rules of Procedure.           On 15 December 1989 the Commission examined the application and decided to adjourn its examination pending the applicant's submission of his full application, and not to apply Rule 36 in the meantime.   THE LAW   1.       The applicant alleges a violation of Article 3 (Art. 3) of the Convention on the ground that his expulsion to Syria would involve a violation of Article 3 (Art. 3) of the Convention, which reads:   "No one shall be subjected to torture or to inhuman or degrading treatment or punishment."           In the Soering case, the European Court of Human Rights stated as follows (Eur. Court H.R., Soering judgment of 7 July 1989, Series A no. 161, para. 91):   "In sum, the decision by a Contracting State to extradite a fugitive may give rise to an issue under Article 3 (Art. 3), and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if extradited, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the requesting country.   The establishment of such responsibility inevitably involves an assessment of conditions in the requesting country against the standards of Article 3 (Art. 3) of the Convention."           In the Commission's view, this test also applies to cases of expulsion.   Consequently, it must be examined whether there are substantial grounds to believe that the applicant faces a real risk of being subjected to treatment contrary to Article 3 (Art. 3) of the Convention, if deported to Syria.           The Commission considers that the general situation in Syria is not such that any expulsion to Syria would be a violation of Article 3 (Art. 3) of the Convention.   In order to raise an issue under Article 3 (Art. 3) there must be some substantiation that there exist a specific risk of treatment contrary to Article 3 (Art. 3) for the applicant in the particular case.   In the present case, the applicant alleges that he was tortured in Syria in 1977 and has deserted from the Syrian army as a result of which he is liable to a long-term imprisonment and is at a real risk of torture if he is returned to Syria.           The Commission has examined the applicant's submissions and the documents in support of his application.   It notes that a considerable time has elapsed since the alleged torture in 1977.   It finds that the information available to it is not sufficient to conclude that there exists a substantial risk that the applicant will be subjected to treatment contrary to Article 3 (Art. 3) of the Convention if he were returned to Syria.           It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.       The applicant also alleges that he had no effective remedy for the alleged violation, contrary to Article 13 (Art. 13) of the Convention.           Article 13 (Art. 13) requires a remedy in domestic law only in respect of a claim of a violation which can be regarded as "arguable" (cf. Eur. Court H.R., Boyle and Rice judgment of 27 April 1988, Series A no. 131, p. 23, para. 52).   Having found above that the claim of a violation of Article 3 (Art. 3) of the Convention is manifestly ill-founded, the Commission similarly considers that the applicant's claim of a violation cannot be regarded as "arguable" for the purpose of Article 13 (Art. 13) of the Convention.   Consequently, Article 13 (Art. 13) of the Convention does not entitle the applicant to a remedy in domestic law.           It follows that this part of the application is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.           For these reasons, the Commission           DECLARES THE APPLICATION INADMISSIBLE     Deputy Secretary to the Commission          President of the Commission                (J. RAYMOND)                              (C.A. NØRGAARD)