S.R. v. SWEDEN
Inadmissible
Nicolas Bratza
The applicant is an Iranian national, who was born in 1963 and lives in Sweden. He was represented before the Court by Mr K. Jönsson, a lawyer practising in Stockholm. The respondent Government were represented by Mr L. Magnuson, Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. On 17 August 1988 the applicant arrived in Sweden and requested asylum. According to a memorandum written by the police authority in Stockholm the same day, the applicant stated that he had served four months in the military at the frontline in the war between Iran and Iraq but had deserted two months before his arrival in Sweden. Furthermore, he was a Mujahedin supporter and had distributed, inter alia, leaflets for this organisation. The authorities were not aware of his activities, however. A more comprehensive interview was held by the police authority in Lycksele on 12 December 1988. On that occasion, the applicant stated that he had been doing his military service in Iran as from April 1987 but had deserted in July 1988 after having been informed that he would be sent to the frontline. The applicant stated also that, although not formally a member of the Mujahedin, he had supported the organisation and taken part in its activities, inter alia by distributing leaflets and publications. He had started his activities in September/October 1987 while he was in military service. Allegedly, the Iranian authorities had eventually learned about the activities – revolutionary guards had found leaflets at his family’s home – and were therefore going to send him to the frontline. He decided to flee and so, after having been in hiding in Iran for some time, he left the country. His brother had been arrested by the revolutionary guards when they searched the family’s home and had not been released. However, the applicant had never been detained himself. The applicant alleged that, if returned to Iran, he would be executed as he had deserted from his military service and had been active for the Mujahedin. On 23 March 1989 the National Immigration Board (Statens Invandrarverk) granted the applicant a permanent residence permit in Sweden. He was also provided with a Swedish alien’s passport. The Board did not find the applicant to be a refugee but nevertheless considered that, due to the prevailing political situation in Iran, there were compelling reasons not to return him to that country. Allegedly, the applicant continued his political activities for the Mujahedin in Sweden by, inter alia, organising and participating in demonstrations. In February 1994 the applicant was arrested and charged with drug trafficking involving four and a half kilograms of heroin. The District Court (tingsrätten) of Stockholm obtained an opinion of the National Immigration Board, dated 26 April 1994, in which the Board stated that, although Iranian authorities treated drug offences severely, the applicant would not risk being prosecuted again in Iran for the crimes that he had committed in Sweden. The Board thus concluded that there were no impediments to expel him to Iran. By a judgment of 19 May 1994 the District Court found the applicant guilty of the charges brought against him and convicted him of an aggravated drug offence and of an attempted aggravated drug offence. He was sentenced to nine years’ imprisonment. Also, his expulsion from Sweden was ordered with a permanent prohibition on his return. With respect to the expulsion, the Court noted that the applicant’s sister was living in Sweden but that he had no other connection to the country. It had regard also to the severity of the crimes of which he had been convicted. The applicant and the public prosecutor appealed against the judgment to the Svea Court of Appeal (Svea hovrätt). The applicant maintained his innocence and submitted in addition that an expulsion to Iran would expose him to a risk of persecution and ill-treatment by the Iranian authorities on account of his activities within the Mujahedin organisation in Iran and Sweden. He claimed also that he risked long imprisonment due to his desertion from the Iranian army. By a judgment of 15 July 1994 the Court of Appeal upheld the applicant’s conviction and increased the sentence to ten years’ imprisonment. Furthermore, agreeing with the reasoning of the District Court, the appellate court upheld the expulsion order. On 5 August 1994 the applicant applied for leave to appeal to the Supreme Court (Högsta domstolen). He maintained what he had submitted to the Court of Appeal relating to the risks facing him upon return to Iran and added that he could be prosecuted again in Iran for the drug offences in question and that he could be punished also for having taken part in the trafficking of asylum seekers from Iran to Turkey. He claimed that he would risk the death penalty if he were to be returned. Leave to appeal was refused by the Supreme Court on 22 August 1994. On 21 September 2000, shortly before the applicant’s release on probation, the police authority in Stockholm contacted the applicant concerning his expulsion from Sweden. The applicant stated that he wished to return to Iran and that he would contact the Iranian Embassy in Sweden in order to obtain a passport. He would thus not oppose his expulsion. A week later, the applicant not having been in contact with the embassy, the police authority called the embassy and was informed that they wished to meet the applicant in person. The applicant was escorted by policemen to the meeting which took place on 29 September. According to a police memorandum of 24 October, the meeting went well. At a later contact, however, the embassy required that the applicant write a “life resumé” in order to get a laissez-passer. The applicant refused to do this and stated that he would no longer return to Iran voluntarily. On 8 October 2000 the applicant was released on probation. He was immediately detained with a view to his deportation to Iran. On 26 October 2000 the applicant requested the Stockholm police authority to refrain from deporting him and to inform the Migration Board (Migrationsverket; previously the National Immigration Board) that there were impediments to his deportation. The applicant referred to Article 3 of the Convention and to the same circumstances as submitted to the courts during his trial. He stated that it had become apparent during the expulsion proceedings that the Iranian Embassy was aware of his asylum application. He referred also to the embassy’s requirement that he submit a statement giving details about his life, which he had not dared to do. Having been informed by the police authority that they would not stay the deportation or refer the matter to the Migration Board, the applicant petitioned the Government under chapter 7 section 16 of the Aliens Act (Utlänningslagen, 1989:529). This provision empowers the Government to revoke an expulsion order that has been imposed as a consequence of a criminal conviction, if it finds that the order cannot be enforced or there are other special reasons against upholding the order. On 20 November 2000 the Government stayed the enforcement of the expulsion order until further notice following the Court’s indication of 13 November 2000, under Rule 39 of the Rules of Court, that it was desirable in the interests of the parties and the proper conduct of the proceedings before the Court not to expel the applicant to Iran. On 29 November 2000 the applicant obtained an opinion from Mr S. Mahmoudi, professor in international law at the University of Stockholm, which has subsequently been forwarded to the Government. In addition to giving an account of relevant Iranian legislation, Professor Mahmoudi made, inter alia, the following observations in regard to the applicant’s situation. As the Iranian authorities could be expected to know about the applicant’s asylum application and the reasons for his expulsion from Sweden, it is likely that he would be thoroughly questioned upon return to Iran. It is possible for the Iranian authorities to prosecute the applicant for the drug offences, although he has already been convicted and has served his sentence in Sweden. Previously, many people were sentenced to death and executed for drug offences, but today the usual practice is to impose long prison sentences. The death penalty is used only in a few cases involving repeated and organised large-scale drug trafficking. The applicant could also be sentenced to pay fines for having left Iran illegally and for having taken part in the trafficking of asylum seekers from Iran and he would risk a prison sentence for his desertion from the army. His involvement in Mujahedin activities is more difficult to assess; generally, however, the efforts of the Iranian authorities are mainly directed towards those who are more active members and have used arms against Government troops. Professor Mahmoudi maintained, however, that any prediction as to the outcome of a criminal case in Iran is difficult due to the courts’ arbitrary application of the laws. He thus concluded that it could not be excluded that the applicant would be sentenced to death. In any event, there is an apparent risk that he would be sentenced to imprisonment for life or for a very long period of time or to corporal punishment for the drug offences committed in Sweden and other crimes allegedly committed in Iran. On 19 December 2000, at the request of the Government, the Migration Board gave its opinion on the applicant’s petition for the expulsion order to be revoked. The Board stated that, according to consistent Iranian case-law, the Iranian courts do not consider a criminal case when the person involved has already been convicted and served his or her prison sentence abroad. The Board therefore maintained the assessment made to the District Court on 26 April 1994 that there were no impediments to the applicant’s expulsion to Iran. The applicant’s petition for a revocation of the expulsion order is still pending before the Government. On 6 December 2000 the Government decided that the applicant be released from detention. Instead, an obligation to report to the police three times per week was imposed on the applicant in accordance with chapter 6 section 5 of the Aliens Act. By a decision of 5 June 2001 this obligation was changed to two occasions per week. A decision of 4 December 2001 did away with the reporting obligation but ordered the applicant to hand in his passport to the local police authority if that had not already been done.