LITON v. SWEDEN
Inadmissible
Nicolas Bratza
The applicant, Mr Rob Abdur Al Haj Liton, is a Bangladeshi national who was born in Bangladesh in 1969 and is currently in Sweden. He is represented before the Court by Mr P-E Nilsson, a lawyer practising in Bromma, Stockholm. The respondent Government are represented by their Agent, Ms I. Kalmerborn of the Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant applied for asylum to the Migration Board (Migrationsverket) on 9 April 2001, claiming that he had arrived in Sweden three days earlier. He presented a Bangladeshi passport to the authorities but he could produce neither his ticket to Sweden nor the required visa. On 10 April 2001 the Migration Board held an initial interview with the applicant in which he briefly recounted his family background and up-bringing in the city of Karanigonj. He further stated that he had travelled to Stockholm on 5 April 2001 via Delhi and Moscow and that the passport he had given to the Swedish authorities was forged. It had been paid for by his father and the Jatiya Party and given to him by a smuggler. Asked by the Migration Officer about his reason for asylum, the applicant submitted that he had been reported to the Bangladeshi police on false accusations of possessing illegal weapons and of having murdered a supporter of the Bangladeshi Government. He claimed to have been arrested once by the police and detained for two months. In response to further questions, the applicant stated that he had been the treasurer of the Jatiya Party, to which he belonged, and that he had been arrested by the police in 1991 and in 1999, allegedly to prevent the party from continuing with its activities and returning to power. He also claimed that he had been tortured by the police, which had caused damage to his knee and ankle joint and left him with difficulties in walking and lapses of memory. Furthermore, the police had been constantly looking for him in Bangladesh. At the end of the interview, the Migration Officer noted that the part of the record concerning the reasons for asylum had been re-read to the applicant and that he had had nothing to object or add to it. The applicant had moreover confirmed that he had understood the interpreter well during the interview. On 9 May 2001 the Migration Board held a second interview with the applicant where his legal representative was present and given the opportunity to ask questions. During this interview the applicant submitted, inter alia, the following. He had held the post as treasurer of a welfare fund within the Jatiya Party, the purpose of the fund being to provide support for education of the poor and to provide food in case of famine. His office had been located in Dhaka. He had been arrested twice, both times in his home town Karanigonj, because of false accusations from supporters of the Awami League (the ruling party at the time). Neither arrest had been followed by a trial against him nor had he been appointed a lawyer. The first arrest occurred on 30 March 1999, following a report to the police by the Awami League that he had murdered a person named Anwar. He had been detained for two months during which time he had been beaten with bottles filled with water, sandbags and rifle butts, mostly on his legs. He had been released because he fell ill from the maltreatment. The second arrest had occurred on 10 August 2000, again after false accusations by the Awami League which this time had affirmed that he was, or had been, in possession of illegal weapons. He had been released on 30 August 2000, again due to ill health following physical abuse. Upon release he had been urged by the police to abandon his contacts with his party or he would be killed. During both arrests, he had been held at the central prison in Dhaka. After his release in August 2000 he had lived on the run until he left for Sweden and, consequently, he had not continued to work for the Jatiya Party. However, despite several questions from the Migration Officer, the applicant could not give a clear answer as to where he had lived following his release in August 2000. He stated both that he mainly lived at home with his parents and that he rarely did so since the police had come looking for him almost every other day for more than six months. With reference to the records from the initial interview where he had stated that he had been arrested in 1991, he claimed that it must have been a misunderstanding and that he had said that he began his political activities in 1991. He further claimed that he had already in the initial interview mentioned that he had been arrested in August 2000 and that it was also a mistake that this had not been included in the record. To support his statements the applicant submitted a certificate dated 7 January 2001 and signed by a Mr Akther Hossain, member of the central committee of the Jatiya Party, which certified that the applicant was a member of the party and had worked for it since 1992, currently holding the post of welfare secretary within the unit of the Karanigonj area. It further stated that he had been arrested more than twice and detained in the Hazat jail where he had been severely tortured. According to the certificate, the police were looking for him and the party had therefore recommended him to leave the country. Last, Mr Hossain requested the Government of Sweden to grant the applicant political asylum. On 11 July 2001 the Migration Board rejected his application for asylum and ordered that he be expelled to his home country. It first noted that the applicant had not been able to substantiate how he had travelled from Bangladesh to Sweden and consequently it remained unclear how long he had been in Sweden before applying for asylum. It then went on to state that the general situation in Bangladesh was not such as to entitle him to asylum per se. Moreover, there was freedom of political opinion in Bangladesh and the applicant had worked for a party that was legal. The Migration Board considered that his political activities had been very limited and that it was not probable that his political affiliation alone would give rise to a risk of persecution. With regard to the false accusations against the applicant, the Migration Board observed that he had been released both times and that there had been no trial. It was acknowledged that false accusations occurred as part of political life in Bangladesh but this was not found to be a sufficient reason in itself to be granted asylum. What the applicant had submitted in the present case did not give reason to believe that he was in need of protection on account of the accusations. Neither did his submissions provide support for his claim that he would be at risk of renewed arrest if he had to return to his home country. Furthermore, the Migration Board did not question that the applicant had been exposed to ill-treatment or torture during his previous arrests, but considered that he did not risk such ill-treatment, or being punished by death or corporal punishment, if returned. Thus, it was concluded that the applicant was neither a refugee who could be granted asylum nor a person otherwise in need of protection who could be allowed to stay on humanitarian grounds. The latter conclusion was reached after consideration by the Migration Board even though the applicant had not expressly requested it. The applicant appealed to the Aliens Appeals Board (Utlänningsnämnden), renewing his request for asylum and requesting that he be granted a residence and work permit. He maintained his earlier claims and added that there was a warrant for his arrest and proceedings pending against him before the national courts in Bangladesh. The pending cases concerned the previously mentioned accusation by political opponents. He submitted several documents, most of them in Bengali, to support his statements. Among the documents there was a warrant for his arrest, in English, dated 26 January 1999, and two letters from his defence lawyer in Bangladesh, Mr Bijoy Panna Bhadra. The first letter, written in English, dated 15 April 2001, informed the applicant that Mr Bhadra would be representing him in court against the charges of attempted murder. The second letter, in Bengali, dated August 2002, stated, according to the applicant, that he had been convicted of attempted murder and sentenced to seven years' imprisonment and to pay a fine. Moreover, the applicant submitted a medical certificate, dated 16 May 2002, to the Aliens Appeals Board in which the chief physician of Western Stockholm's Psychiatric Sector stated that the applicant suffered from Post Traumatic Stress Disorder (PTSD), was depressed and had shown suicidal tendencies. He considered that the applicant was in need of advanced psychiatric treatment. On 5 July 2002 the Aliens Appeals Board rejected the appeal. It gave the following reasoning: “The Aliens Appeals Board shares the Migration Board's assessment of the reasons that [the applicant] has invoked before the Migration Board. His submissions now, that legal proceedings have been instituted against him, does not entail that he can be considered to be persecuted or in need of protection. .... The Aliens Appeals Board, which does not question that [the applicant] has been subjected to ill-treatment in his home country and that his psychological health is poor, cannot however find that a residence permit should be granted to him on this ground. Nor,a residence permit for humanitarian reasons should be granted.” At the end of August 2003 the applicant lodged a new application with the Aliens Appeals Board for a residence permit on humanitarian grounds, according to Chapter 2, section 5b, of the Aliens Act, and requested that his expulsion be stayed until the new application had been considered and a new medical examination had been carried out. He submitted a medical certificate, dated 1 October 2002, which stated that he was very depressed and lacked the ability to care for himself. He was diagnosed as suffering from PTSD with anxiety and suicidal thoughts. Before the Court, the applicant claimed that he had also invoked a document stating that he had been convicted to 14 years' imprisonment, in absentia, by a court in Bangladesh. However, this has been disputed by the Government which claim that no such document had been invoked before the national authorities at any time during the proceedings. The alleged document has not been produced before the Court. On 2 September 2003, the Aliens Appeals Board decided not to stay the execution of the expulsion order and, on 12 September 2003, it rejected the application. It first observed that the decision to expel the applicant had gained legal force through its decision of 5 July 2002 and that the decision could not be appealed against or re-examined. However, according to Chapter 2, section 5b, of the Aliens Act, the Aliens Appeals Board could examine a new application for a residence permit lodged by an alien who was to be expelled following a final decision. Under this provision, such a new application could be granted only if it was based on circumstances which had not already been examined and if the alien was in need of protection or if it otherwise would be contrary to humanitarian standards to implement the expulsion order. Turning to the issue before it, the Aliens Appeals Board noted that it did not concern a need for protection pursuant to the Aliens Act (i.e. a new request for asylum). It then observed that the medical certificate which the applicant had invoked was almost one year old and that he had not submitted more recent medical certificates. It went on to find that the medical evidence invoked did not show that the applicant's current health condition was of such a character that it would be contrary to humanitarian standards, within the meaning of the Aliens Act, to enforce the expulsion. On 5 September 2003 the applicant's representative requested the Court to indicate to the Swedish Government under Rule 39 of the Rules of Court to suspend the applicant's expulsion. On the same day, the applicant allegedly tried to commit suicide by swallowing an unspecified number of cigarettes following which he was taken to hospital. After having received treatment, he was placed in a closed psychiatric care unit. On 8 or 9 September 2003 he escaped from the hospital and went into hiding. On 17 September 2003 the President of the Chamber to which the case had been allocated decided, under Rule 39 of the Rules of the Court, to indicate to the respondent Government that it was desirable in the interest of the parties and the proper conduct of the proceedings before the Court not to expel the applicant to Bangladesh until the Chamber had had an opportunity to examine the application. On 23 September 2003 the Chamber decided, under Rule 54 § 2 (b) of the Rule of the Court, that the Government should be invited to submit written observations on the admissibility and merits of the case. Moreover, it decided to prolong, until further notice, the interim measure indicated under Rule 39. Following the Court's indication under Rule 39 of the Rules of Court on 17 September 2003, the Migration Board decided on the same day to stay the enforcement of its decision to expel the applicant until further notice. The Migration Board's decision is still in force. On 28 March 2004, after the Court had received both parties' observations on the admissibility and merits of the case, it received a fax signed by Mr Bijoy Panna Bhadra in which he disputed all the Government's claims concerning him personally as put forward in their observations. He stated that he was a Bar Council licensed lawyer and working at the address mentioned in the letterhead of his letters. As regarded the court case in Bangladesh against the applicant in which he had been convicted of attempted murder, Mr Bhadra stated that it was a mystery that it had disappeared but that sometimes court officials kept files secret, which must have happened in the present case.