Distr.
GENERAL
CAT/C/32/D/229/2003
17 May 2004
Original: ENGLISH
Communication No. 229/2003 : Sweden. 17/05/2004.
CAT/C/32/D/229/2003. (Jurisprudence)
Convention Abbreviation: CAT
Committee Against Torture
Thirty-second session
3 - 21 May 2004
Decisions of the Committee Against Torture under article 22 of the
Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment
- Thirty-second session -
Communication No. 229/2003
Submitted by: Mr. H. S. V. (represented by counsel, Mr. Bertil Malmlöf)
Alleged victim: The complainant
State party: Sweden
Date of complaint: 24 April 2003 (initial submission)
The Committee against Torture, established under Article 17 of the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Meeting on 12 May 2004,
Adopts the following:
DECISION ON ADMISSIBILITY
1.1 The complainant is Mr. H. S. V., an Iranian national born in 1948, currently
residing in Sweden and awaiting deportation to Iran. He claims that his forcible
return to Iran would amount to a violation by Sweden of article 3 of the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
He is represented by counsel.
1.2 On 25 April 2001, the Committee forwarded the communication to the State
party for comments, and requested, under Rule 108, paragraph 1, of the Committee's
rules of procedure, not to return the complainant to Iran while his complaint
was under consideration by the Committee. The State party acceded to this request.
The facts as submitted:
2.1 The complainant was a high-ranking officer in the army of the former Shah
of Persia. After the Iranian revolution in 1979, he fled to Turkey and subsequently
lived in Bulgaria. Between 1993 and 1996, following the arrival of his wife
and daughter in Sweden, he unsuccessfully submitted several applications for
a residence permit to the Swedish authorities, before he was granted a temporary
residence and work permit on 4 February 1997. On 1 June 1999, the complainant
was granted a permanent residence permit.
2.2 By judgment of 17 March 2000, the District Court of Norrköping found
the complainant guilty of several drug offenses and sentenced him to five years'
imprisonment. It also ordered the complainant's expulsion from Sweden and prohibited
him from returning to the country before 1 January 2015. The Court so decided
after having sought an opinion from the Swedish Immigration Board, which concluded
that no impediment to the enforcement of an expulsion order existed. The complainant
did not appeal the judgment of the District Court.
2.3 The complainant began to serve his prison term on 6 April 2000; he was released
on probation on 25 April 2003. During this period, the "Association for
the Rights of Children to a Parent Sentenced to Expulsion" submitted two
applications, requesting the Government to revoke the expulsion order against
the complainant, under Chapter 7, Section 16 of the 1989 Aliens Act, on grounds
of family unity; these requests were rejected on 25 October 2001 and 15 August
2002, respectively. On 24 April 2003, based on a risk assessment made by the
Swedish Migration Board, the Government rejected a similar application submitted
by the complainant.
The complaint:
3.1 The complainant claims that his forcible return to Iran would constitute
a violation by Sweden of article 3 of the Convention, since he would run a high
risk of being arrested and subsequently tortured, or even executed, upon return
to that country, given his past military functions, as well as the fact that
he had expressed his political views in public.
3.2 In support of his claim, he submits that, according to Amnesty International
and other international human rights organizations, persecution, arbitrary arrests,
torture and ill-treatment, unfair and sometimes secret trials, imprisonment
and capital punishment of political opponents frequently occur in Iran.
3.3 The complainant submits that he has no relatives and friends, nor any place
to stay in Iran, and that he had not returned to that country during the 21
years since his departure. All his family and friends live in Sweden, including
his three children, whom he might not see again, given that he will be 67 years
old in 2015.
3.4 The complainant claims that the same matter has not been, and is not being,
examined under another procedure of international investigation or settlement,
and that he has exhausted domestic remedies.
The State party's observations on admissibility:
4.1 On 13 June 2003, the State party challenged the admissibility of the communication
on grounds of non-exhaustion of domestic remedies and lack of substantiation
of the complainant's allegations.
4.2 The State party describes relevant domestic legislation (1) as follows:
Expulsion on account of a criminal offence constitutes a special sanction for
offences, and can be ordered by the court if a convict has been sentenced to
a more severe sanction than a fine and if it may be assumed, on the basis of
the nature of the offence and other circumstances, that he/she will continue
to commit criminal offences in Sweden, or if the offence is so serious that
the convict's expulsion is warranted. When considering whether or not an alien
should be expelled, the court must consider his or her family circumstances,
the period that he or she has resided in Sweden and the question of whether
there are impediments to the enforcement of the expulsion order, such as the
existence of reasonable grounds for believing he/she would be in danger of being
subjected to capital punishment, torture or other inhuman or degrading treatment
or punishment upon return to his/her country of origin. The decision of the
court of first instance is subject to appeal (and further appeal to the Supreme
Court, if leave to appeal has been granted). Pursuant to Chapter 7, Section
16 of the Aliens Act, the Government may revoke, partly or entirely, a judgment
or order for expulsion on account of a criminal offence and grant a temporary
residence or work permit, based on circumstances that did not exist at the time
of the expulsion order.
4.3 The State party submits that the complainant did not exhaust domestic remedies
because he did not appeal the judgment of the District Court of 17 March 2000.
Rather, he declared his satisfaction with the judgment, regarding both his prison
term and the expulsion order, one day prior to the deadline for lodging an appeal;
he thus expressly waived his right to appeal.
4.4 By reference to a decision of the European Commission of Human Rights in
a similar case, (2) the State party argues that an appeal to the Court of Appeal,
(as well as a potential further appeal to the Supreme Court), would have been
an effective and reasonably expeditious remedy, which cannot be replaced by
the extraordinary remedy under Chapter 7, Section 16 of the Aliens Act. The
complainant did not show that his alleged risk of being tortured and sentenced
to death upon return to Iran could not have been raised in the criminal appellate,
rather than extraordinary, proceedings.
4.5 The State party argues that, in any event, the complainant failed to substantiate
his alleged risk of torture upon return to Iran, for purposes of admissibility.
It concludes that the communication is manifestly unfounded and therefore inadmissible
under article 22 of the Convention, as well as rule 107 (b), of the Committee's
revised Rules of Procedure. (3)
Complainant's comments on the State party's submissions:
5.1 On 29 June 2003, the complainant, in his comments on the State party's observations,
submits that he did not appeal the judgment of the District Court, because the
State prosecutor had warned him that, in such case, he would appeal the verdict
acquitting the complainant's wife, who initially had also been charged with
drug offenses, and that there was a high risk of her not being acquitted on
appeal. Since the complainant did not want to risk the future of his wife and
children, he felt compelled to waive his right to lodge an appeal, which in
any event was not likely to succeed.
5.2 The complainant reiterates his arguments about the personal risks that he
would run, and the general human rights situation in Iran. He argues that the
State party would not be able to guarantee his safety if he were to be returned
to that country.
Additional submission by State party and complainant's futher comments:
6.1 On 23 September 2003, the State party rejects as unsubstantiated the complainant's
allegation regarding the circumstances under which he waived his right to appeal
the judgment of the District Court of Norrköping, and reiterates that the
communication is inadmissible, under article 22, paragraph 5 (b) of the Convention,
for non-exhaustion of domestic remedies and, in any event, under article 22,
paragraph 2, of the Convention, as being manifestly unfounded.
6.2 The State party submits a translation of a statement by the state prosecutor
in the complainant's case, to the effect that he never discussed his intention
in relation to a possible appeal against the judgment of the District Court
with the complainant, given that: (a) the complainant did not speak Swedish;
(b) he never contacts defence counsel to reveal his intentions with regard to
a possible appeal; (c) although he cannot rule out that counsel for the complainant
contacted him to find out whether he would consider appealing independently,
he does not remember any such contact; (d) he was content with the judgment
and expulsion order against the complainant and, upon reflection, decided not
to appeal the acquittal of the complainant's wife: and (e) it would have been
impossible for him to appeal the acquittal of the complainant's wife, if the
complainant had waited until the last day of the three-week period for lodging
an appeal against the sentence and expulsion, as no additional week was available
to the prosecution to file a cross-appeal in cases of acquittal.
7. In a submission of 9 October 2003, the complainant reiterates his argument
in paragraph 5.1 above and submits that it was probably his lawyer who informed
him of the prosecutor's intention to appeal his wife's acquittal if he appealed
his sentence. Although his lawyer did not remember whether he had contacted
the prosecutor on the issue, the prosecutor himself had not excluded that possibility
in his statement to the Committee.
Issues and proceedings before the Committee:
8.1 Before considering any claim contained in a communication, the Committee
against Torture must decide whether or not it is admissible under article 22
of the Convention. The Committee has ascertained, as it is required to do under
article 22, paragraph 5 (a), of the Convention, that the same matter has not
been, and is not being, examined under another procedure of international investigation
or settlement.
8.2 The Committee has noted the State party's objection that the communication
is inadmissible under article 22, paragraph 5 (b), of the Convention, as the
complainant failed to exhaust domestic remedies. It has also taken note of the
explanation provided by the complainant, and challenged by the State party,
that his failure to appeal his sentence was explained by the fact that the prosecutor
had warned him that he would appeal his wife's acquittal, should he, the complainant,
appeal against his sentence and the expulsion order of the District Court.
8.3 However, the Committee need not pronounce itself on whether the complainant
was required to exhaust domestic remedies in the circumstances of the case,
as his claim that he would be at a risk of being subjected to torture upon return
to Iran because of his employment with the army of the Shah prior to the Iranian
revolution in 1979 is pure speculation and fails to rise to the basic level
of substantiation required for purposes of admissibility, in the absence of
any corroborating evidence. The Committee thus concludes, in accordance with
article 22 of the Convention, and rule 107 (b), of its revised Rules of Procedure,
that the communication is manifestly unfounded (4) and thus inadmissible.
9. Accordingly, the Committee decides:
a) that the communication is inadmissible;
b) that this decision shall be communicated to the State party and to the complainant.
_______________________________
[Adopted in English, French, Russian and Spanish, the English text being the original version. Subsequently to be issued also in Arabic and Chinese as part of the Committee's annual report to the General Assembly.]
Notes
1. Reference is made, in particular, to chapter 4 of the Swedish Aliens Act
(1989).
2. European Commission of Human Rights, Decision on the admissibility of Application No. 36800/97 (Heidari v. Sweden).
3. The State party refers to Communication No. 216/2002, Decision on admissibility adopted on 2 May 2003, at para. 6.2.
4. Cf. Communication No. 216/2002, H. I. A. v. Sweden, Decision on admissibility adopted on 2 May 2003, at para. 6.2.