CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 18 septembre 1997

.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. 36765/97                       by Zewar Akram Qasim AL-DABBAGH                       against Sweden           The European Commission of Human Rights sitting in private on 18 September 1997, the following members being present:              Mr.    S. TRECHSEL, President            Mrs.   G.H. THUNE            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H. DANELIUS                  F. MARTINEZ                  C.L. ROZAKIS                  L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  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            Mrs.   M. HION            MM.    R. NICOLINI                  A. ARABADJIEV              Mr.    H.C. KRÜGER, 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 26 June 1997 by Zewar Akram Qasim Al-Dabbagh against Sweden and registered on 1 July 1997 under file No. 36765/97;         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 23 July 1997 and the observations in reply submitted by the applicant on 27 August 1997;         Having deliberated;         Decides as follows:   THE FACTS         The applicant is an Iraqi citizen born in 1956.   He resides in Stockholm.   Before the Commission he is represented by Mr Per Stadig, a lawyer practising in Stockholm.         The facts of the case, as submitted by the parties, may be summarised as follows.         In September 1986 the applicant arrived in Sweden with his wife and two children, born in 1983 and 1984.   A third child was born in Sweden in 1991.   Until 18 March 1994 the applicant had a permit to reside in Sweden to pursue undergraduate and postgraduate studies in orthopaedic surgery.   He also worked as an assistant surgeon at the Karolinska hospital in Stockholm.   The applicant's studies were financed by the Iraqi State.   However, in May 1992, the Ministry for Higher Education in Baghdad informed the Iraqi Embassy in Stockholm that the Ministry was no longer responsible for the applicant's stay in Sweden.         In March 1994 the applicant and the other members of his family lodged applications for asylum with the National Immigration Board (Statens invandrarverk).   The applicant claimed that it was no longer possible for him to return to Iraq, as he had failed to return as agreed in September 1991 to resume his work as a surgeon in the city of Mosul.   As a result, he had been suspended from his medical post and would have to pay back twice the amount he had received from the Iraqi State during his studies in Sweden.   Further, as he had disregarded a call-up for military service during the Gulf War, he would risk imprisonment.         In a statement of 12 July 1994, the Swedish Security Police (Säkerhetspolisen; hereinafter "SÄPO") recommended that the asylum applications be rejected.         On 13 January 1995 the Immigration Board referred the applications to the Government with a recommendation that they be rejected.   The Board noted that the applicant's family had lived in Sweden for many years.   However, they had known from the outset that their stay was of a temporary character.   In any event, their connections to Sweden were of minor importance since security reasons spoke against granting their applications.   In this respect, the Board had regard to the conclusions made by SÄPO.   The Board also called into question the applicant's credibility in claiming that he risked punishment by Iraqi authorities as, in November 1992, his passport had been renewed at the Iraqi Embassy in Stockholm.         In a statement to the Government of 5 June 1997, SÄPO mentioned some of the applicant's alleged acquaintances and gave an account of certain activities in which he was supposed to have taken part.   From the point of view of security, SÄPO recommended that his application be rejected.   In the proceedings before the Government, only SÄPO's conclusion was disclosed to the applicant.   However, after the communication of the present application to the Government, the statement has been made available in its entirety to the applicant and the Commission.         The applicant denied the allegations that he was a security risk and expressed concern about the fact that he had not been informed about the grounds for this accusation.   Allegedly, the applicant had been slandered by an Iraqi person who had submitted false information to SÄPO.   The applicant claimed that, during his first years in Sweden, he maintained contact with the Iraqi Embassy since, as a student, he was dependent on the Iraqi State for their economic support and approval of his stay in Sweden.   Later he had been consulted, in his capacity as a medical doctor, by the staff of the Embassy.   He had also assisted as an interpreter when Iraqi citizens had sought medical help in Sweden.   However, his contacts with the Embassy had been substantially reduced after the Iraqi invasion of Kuwait.   His relations with Iraqi authorities had generally deteriorated on account of his failure to respond to the call-up for military service.   The renewal of his passport was not remarkable; under Iraqi law, the Embassy had to renew a passport on request.   The applicant had not applied for asylum before, as he feared that his uncle would risk reprisals.         By decision of 19 June 1997, the Government rejected the applicant's application and ordered his deportation.   Moreover, a ten year prohibition on return was issued.   The Government gave, inter alia, the following reasons:   (Translation)         "The information in the case shows that [the applicant] for       a long time has enjoyed the confidence of the Iraqi regime       and that, apparently, he has not had any real aversion to       his native country.   Among other things the economic       support [the applicant] has received from Iraq, the       acknowledged contacts with the Iraqi Embassy in Stockholm       and the renewal of the passport support this conclusion.       As regards the latter, the Government point out that an       asylum seeker by such an act normally is considered to have       expressed a wish to avail himself of the protection of his       native country.   The Government consider that the       applicant's explanation in this respect is unconvincing.       The Government thus conclude that there is reason to call       into question also [the applicant's] subjective fear of       persecution in his native country.   In addition, the       Government find it remarkable, notwithstanding the       explanation given, that [the applicant] did not apply for       a permit to settle in Sweden in connection with the war in       Kuwait - and already at this point in time declared to the       Swedish authorities the risks he now claims to face upon       return to Iraq - but chose to wait until 1994.   In these       circumstances, the credibility of the reasons given by [the       applicant] for not wanting to return to Iraq is further       reduced.         Moreover, [the applicant's] statements in regard to, inter       alia, the reasons for his contacts with Iraqi       representatives in recent years and for his present       unwillingness to return to Iraq are as such vague and imprecise.       They are neither of such a convincing character that they can be       taken at face value.   Considering that neither [the applicant]       nor [his wife] and children appear to have expressed a wish to       surrender their Iraqi passports, it must be considered doubtful,       also for this reason, whether they still do not wish to avail       themselves of the protection of their native country.   Finally, as regards the information given by [SÄPO] concerning the applicant, the Government consider that it reaches the degree of certainty and strength which should be required to refuse a residence permit on grounds of security."         The Government concluded that the applicant was not a refugee or, for any other reason, in need of protection.   Accordingly, he was not entitled to a residence permit under Chapter 3 of the Aliens Act (Utlänningslagen, 1989:529).   Furthermore, there were no humanitarian or other reasons to allow him to remain in Sweden.   He should thus be expelled in accordance with Chapter 4, Section 3 of the Aliens Act.         However, by the same decision, the Government granted the applicant's wife and children permanent residence permits.   The Government found that, as it could not be excluded that the children would sustain permanent injury if expelled to Iraq, they should be allowed to stay in Sweden on humanitarian grounds.   As a consequence, also their mother should be allowed to stay.         The applicant later requested the Supreme Administrative Court (Regeringsrätten) to reopen the case.   As there had been no oral hearing, the proceedings allegedly contravened relevant Swedish law. Further, the Government's decision had violated Articles 3, 6 and 8 of the Convention.         On 26 June 1997 the Supreme Administrative Court rejected the applicant's request.         After the Commission had indicated to the respondent Government that it was desirable that the applicant should not be deported until the Commission had had an opportunity to examine the present application, the National Immigration Board, by decision of 2 July 1997, stayed the enforcement of the expulsion order pending the Commission's examination.         On 3 August 1997 the applicant was admitted for psychiatric care. On 20 August the applicant's wife, who was six months pregnant, had a miscarriage, allegedly caused by the present stressful situation.     COMPLAINTS   1.     Invoking Article 3 of the Convention, the applicant claims that he risks imprisonment and torture upon return to Iraq as he failed to return to Iraq as agreed in September 1991 and disregarded the call-up for military service during the Gulf War.   Moreover, it has probably come to the attention of the Iraqi authorities that, during the applicant's stay in Sweden, he has been in contact with opponents of the Iraqi regime.   2.     Further, the Government's decision to expel the applicant while allowing the other family members to stay in Sweden will allegedly result in the disruption of the family, in violation of Article 8 of the Convention.   3.     Finally, the applicant claims that the case in question concerned his family's right to live together and thus their civil rights within the meaning of Article 6 of the Convention.   As the case has been decided by the Government, the applicant and his family have not been given a fair hearing by an independent tribunal as required by that Article.   In this connection, the applicant further refers to the fact that no hearing was held in the case and that he was not informed of the evidence used against him before the decision was taken.     PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 26 June 1997 and registered on 1 July 1997.         On 1 July 1997 the Commission decided, pursuant to Rule 36 of the Commission's Rules of Procedure, to indicate to the respondent Government that it was desirable in the interest of the parties and the proper conduct of the proceedings not to return the applicant to Iraq until the Commission had had an opportunity to examine the application.         The Commission further decided, pursuant to Rule 48 para. 2 (b), to bring the application to the notice of the Government and to invite them to submit written observations on the admissibility and merits.         The Government's observations were submitted on 23 July 1997. The applicant replied on 27 August 1997.     THE LAW   1.     The applicant claims that he risks imprisonment and torture upon return to Iraq.   He invokes Article 3 (Art. 3) of the Convention, which provides the following:         "No one shall be subjected to torture or to inhuman or       degrading treatment or punishment."         The respondent Government submit that Swedish authorities, for many years, have refrained from expelling people to Iraq as, due to the conditions prevailing in that country, it is not possible to predict measures and attitudes of Iraqi authorities in relation to their own nationals.   Iraqi nationals are normally granted residence permits unless there are objections from the viewpoint of security.   Thus, had the applicant's case been a "normal asylum case", the applicant certainly would have been granted a permit to reside in Sweden.         The Government contend, however, that the present complaint is manifestly ill-founded, as the applicant has not shown substantial grounds for believing that there exists a real risk of treatment contrary to Article 3 (Art. 3) of the Convention.   The Government generally refer to the reasoning included in the recommendation of the National Immigration Board and the Government's decision of 19 June 1997.   In addition, the Government, inter alia, submit that the applicant left Iraq with the Iraqi authorities' approval and financial support.   In May 1992 the Ministry for Higher Education in Baghdad stated that it was no longer responsible for the applicant's stay in Sweden.   Thus, the Government contend, there is nothing to indicate that the applicant had been on any but good terms with the Iraqi authorities until May 1992 by which time the Gulf War had long since come to an end.   The Government further assert that the applicant was fully aware of the conditions pertaining to the financial support given by the Iraqi authorities.   When he chose not to return as agreed in September 1991, he knew that he was breaking the agreement and the consequences of his action.   It could therefore be argued that the applicant knowingly placed himself and his family in their present position.   In regard to the applicant's statement that he has had no other contacts with the Iraqi Embassy or with persons tied to the Iraqi regime than those indicated by him in the asylum proceedings, the Government submit that SÄPO is in possession of information of another character.   In this respect, reference is made to SÄPO's statement of 5 June 1997, which, so the Government submit, contains convincing evidence in support of the contention that the applicant enjoys the confidence of the present Iraqi regime.         The applicant submits that, in view of the situation in Iraq and the Swedish authorities' policy not to return people to that country save in exceptional cases, there has to be very strong evidence, in those cases, that the return would not entail any risk of treatment contrary to Article 3 (Art. 3) of the Convention.   No such evidence has been presented in the applicant's case.   On the contrary, the applicant claims that he risks imprisonment and torture upon return to Iraq as he failed to return to Iraq as agreed in September 1991 and disregarded the call-up for military service during the Gulf War.   Moreover, it has probably come to the attention of the Iraqi authorities that, during the applicant's stay in Sweden, he has been in contact with opponents of the Iraqi regime and has been openly critical of that regime. Further, when applying for asylum in Sweden, he violated Iraqi laws. He also refused to assist Iraqi authorities in finding a place where Saddam Hussein's son could have surgery.   The applicant does not dispute that, when arriving in Sweden as a student, he was not a refugee.   However, already in 1991 when applying for an extension of his residence permit he told the police that he and his family wanted to stay in Sweden until the situation had been normalised.   The situation did not normalise, however, and the applicant realised that it would be very dangerous for him to return to Iraq.   He waited to apply for asylum as long as possible as he was afraid that this could harm either his or his wife's relatives in Iraq.   As to the statement of SÄPO, the applicant submits that the information contained therein is not clear.   He denies that he has had contacts or taken part in activities that would make him a security risk.         The Commission recalls that Contracting States have the right to control the entry, residence and expulsion of aliens (cf., e.g., Eur. Court HR, Vilvarajah and Others v. the United Kingdom judgment of 30 October 1991, Series A no. 215, p. 34, para. 102).   However, an expulsion decision may give rise to an issue under Article 3 (Art. 3) of the Convention, and hence engage the responsibility of the State, 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, para. 103).   A mere possibility of ill-treatment is not in itself sufficient (ibid., p. 37, para. 111).         The Commission notes the practice of the Swedish authorities not to expel people to Iraq due to the conditions prevailing in that country unless there are objections from the viewpoint of security.         Turning to the circumstances of the present case, the Commission recalls that the applicant, before the Swedish authorities and the Commission, has claimed that he risks imprisonment and torture in Iraq mainly as he failed to report for military service during the Gulf War, which ended in February 1991, and as he did not return as agreed to Iraq in September 1991 to resume his work as a surgeon.   However, it appears that, despite this alleged disobedience, the financial support received by the applicant from Iraqi authorities was not discontinued until May 1992.   Furthermore, his passport was renewed at the Iraqi Embassy in Stockholm in November 1992.         The applicant claims that his relations with Iraqi authorities generally deteriorated after the invasion of Kuwait.   He has given an account of his contacts and activities in later years.   In this respect, the Commission notes that, apparently, he has not mentioned his alleged refusal to assist Saddam Hussein's son to the Swedish authorities.   More importantly, the Commission has regard to SÄPO's statement of 5 June 1997.   Notwithstanding the applicant's comments, the Commission finds that the information contained therein leads to the conclusion that, on account of the applicant's relations with Iraqi authorities, there are not substantial grounds for believing that the applicant faces a real risk of being subjected to treatment contrary to Article 3 (Art. 3) of the Convention in Iraq.         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 claims that the Government's decision will result in the disruption of his family.   In this respect, he invokes Article 8 (Art. 8) of the Convention, which 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 call into question whether the applicant's expulsion will entail an interference with his right to respect for his family life.   They argue that the applicant and his family have been aware that they were allowed to stay in Sweden due to the applicant's studies and that, therefore, they could not reasonably expect to be able to settle in Sweden.   Furthermore, the Government recall that the decision to grant residence permits to the applicant's wife and children was based purely on humanitarian reasons and was intimately related to the fact that the children had already spent a considerable part of their lives in Sweden.   Allegedly, the decision should be regarded as a privilege which may be enjoyed or discarded.   The applicant is free to continue his family life in Iraq or in any other country which is willing to receive him and his family.         Should, however, the Commission find that the intended expulsion would entail an interference with the applicant's rights under Article 8 (Art. 8) of the Convention, the Government submit that the interference would be justified under Article 8 para. 2 (Art. 8-2). They maintain that the expulsion order pursues legitimate aims referred to in that paragraph, namely the interests of national security, the prevention of crime and the protection of the rights and freedoms of others.   Allegedly, there are no elements in the present case which indicate that the Government's   margin of appreciation in striking a fair balance between the general interests of the community and the individual interest of the applicant will be exceeded when the expulsion order is carried out.         The applicant submits that the Government's decision to refuse one member of the family a residence permit while granting the others such permits is in itself a violation of Article 8 (Art. 8) of the Convention.   The family has lived in Sweden for eleven years and the youngest child was born in Sweden.   They cannot return to Iraq. Further, the applicant will not be allowed to enter and reside in a third country after having been expelled from Sweden as a security risk.   The permits given by the Government to the other family members should not be regarded as a privilege but as something the Government had to grant in order to comply with Swedish law and international conventions.   Moreover, the applicant's expulsion is not necessary in the interests of national security as there are no security risks involved.   Further, if the applicant has committed any crimes in Sweden he should have been brought to trial at a much earlier date.         The Commission recalls that the expulsion of a person from a country in which close members of his family live may amount to an unjustified interference with his right to respect for his family life as guaranteed by Article 8 (Art. 8) of the Convention (cf., e.g., Eur. Court HR, Moustaquim v. Belgium judgment of 18 February 1991, Series A no. 193, pp. 19-20, paras. 43-46).         The Commission notes that the Government's decision of 19 June 1997 does not prevent the applicant's wife and children from following the applicant to Iraq.   Having regard to its above conclusions in regard to the complaint lodged under Article 3 (Art. 3) of the Convention, the Commission does not find that the wife and the children would be unable, on grounds of personal security, to move to Iraq.   However, the Commission takes into account that the family has lived in Sweden since 1986, that the two eldest children arrived in that country at the age of 3 and 2, respectively, and that the youngest child was born in Sweden in 1991.   Recalling the Government's conclusion, in the above decision, that it could not be excluded that the children would sustain permanent injury if expelled to Iraq, the Commission finds that their removal from Sweden would involve great hardship.   As, consequently, the applicant's expulsion would jeopardise the continued family life, the expulsion could be considered as an interference with the applicant's right to respect for his family life under Article 8 para. 1 (Art. 8-1) of the Convention.   It is therefore necessary to ascertain whether the expulsion would satisfy the conditions of Article 8 para. 2 (Art. 8-2).         The Commission first finds that the expulsion order has been issued under the relevant provisions of the Aliens Act and is thus "in accordance with the law".   Further, the Commission considers, in view of all the information submitted in the case, that the enforcement of the order would pursue the legitimate aims adduced by the Government.         The necessity criterion implies the existence of a pressing social need and, in particular, requires that the measure must be proportionate to the legitimate aims pursued.   It has to be determined whether with regard to the intended expulsion a fair balance is being struck between the relevant interests, in the present case the applicant's right to respect for his family life, on the one hand, and the interest of national security, the prevention of crime and the protection of the rights and freedoms of others, on the other.   Regard should further be had to the margin of appreciation afforded to the Contracting States (cf., e.g., Eur. Court HR, Boughanemi v. France judgment of 24 April 1996, Reports 1996-II, No. 8, pp. 609-610, paras. 41-42).         The Commission recalls the conclusion made by the Government in its decision of 19 June 1997 and based on the information provided by SÄPO that the applicant should be refused a residence permit on grounds of security.   Taking into account that same information and the margin of appreciation left to the Swedish Government, the Commission is satisfied that the Government's decision is supported by relevant and sufficient reasons.         Accordingly, notwithstanding the difficulties faced by the other family members in the event of the applicant's expulsion from Sweden, the Commission finds that the Swedish authorities have not failed to fulfil their obligation to strike a fair balance between the relevant interests.   Thus, the interference with the applicant's right to respect for his family life is justified under Article 8 para. 2 (Art. 8-2) of the Convention in.         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.   3.     Finally, the applicant claims that the case in question concerned his family's right to live together and thus their civil rights within the meaning of Article 6 (Art. 6) of the Convention.   As the case has been decided by the Government, the applicant and his family have not been given a fair hearing by an independent tribunal as required by that Article.   In this connection, the applicant further refers to the fact that no hearing was held in the case and that he was not informed of the evidence used against him before the decision was taken.         Article 6 (Art. 6) of the Convention reads, in relevant parts, as follows:         "1.   In the determination of his civil rights and       obligations or of any criminal charge against him, everyone       is entitled to a fair and public hearing ... by an       independent and impartial tribunal ..."         The Commission recalls its established case-law according to which procedures applied by public authorities to determine whether an alien should be allowed to stay in a country or should be expelled do not involve the determination of civil rights within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention (cf., e.g., No. 13162/87, P. v. the United Kingdom, Dec. 9.11.87, D.R. 54, p. 211).         Noting furthermore that the procedures applied in the applicant's case did not determine any criminal charge against him, the Commission finds that Article 6 (Art. 6) does not apply to the present complaint.         The Commission has examined this complaint also under Article 1 of Protocol No. 7 (P7-1) to the Convention which states as follows:         "1.   An alien lawfully resident in the territory of a State       shall not be expelled therefrom except in pursuance of a       decision reached in accordance with law and shall be       allowed:       a.   to submit reasons against his expulsion,       b.   to have his case reviewed, and       c.   to be represented for these purposes before the competent       authority or a person or persons designated by that authority.         2.   An alien may be expelled before the exercise of his       rights under paragraph 1. a, b and c of this Article, when       such expulsion is necessary in the interests of public       order or is grounded on reasons of national security."         The Commission notes that the Government was the only body to examine the merits of the applicant's case, the Supreme Administrative Court only deciding whether the case should be reopened.   However, the Commission finds that, even assuming that the applicant had rights under Article 1 para. 1 (Art. 1-1) that he could not exercise, his expulsion is justified under para. 2 as being grounded on reasons of national security.         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, unanimously,         DECLARES THE APPLICATION INADMISSIBLE.           H.C. KRÜGER                           S. TRECHSEL          Secretary                             President      of the Commission                     of the Commission