CASE OF M.E. v. DENMARK
No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Syria);No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for private life)
András Sajó;Egidijus Kūris;Guido Raimondi;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano
5. The applicant, M.E., is a stateless Palestinian. It appears that he was born in Syria in 1982. Currently he lives in Sweden. 6. The applicant entered Denmark with his stepmother and two siblings in February 1990, when he was seven years old. He was granted asylum in October 1993, the same year his father entered Denmark. The latter was granted a residence permit in 1994. The applicant’s mother, two half-siblings and his paternal uncles live in Syria. 7. It appears that in 1997, when the applicant was fifteen years old, he returned to Syria for six months and worked as a painter. According to the Danish Central Office of Civil Registration, he stayed in Syria from 20 December 1998 to 22 February 1999, but that appears to be disputed by the applicant. 8. He returned to Syria for a month in November 2003. 9. In Denmark, the applicant married and divorced twice. From each marriage he had a child, a son born in August 2001 and a daughter born in March 2004. 10. The applicant has a criminal record. Among other things, in February 1998 he was convicted of assault, for which he was given a suspended sentence of twenty days’ imprisonment. In August 1998 he was convicted of making threats against witnesses and possession of a weapon, for which he was given a suspended sentenced of five months’ imprisonment. In 2002 he was sentenced to thirty days’ imprisonment for theft and human trafficking. 11. On 17 December 2004 the applicant was arrested and charged with drugs offences, and by a judgment of 26 January 2006 the High Court of Eastern Denmark (Østre Landsret, henceforth “the High Court”) convicted the applicant of twenty-six counts of drugs offences relating to 2.68 kg of heroin and cocaine, committed throughout 2004. The High Court considered that the applicant had a leading role and sentenced him to seven years’ imprisonment. A profit of approximately 400,000 Danish kroner (DKK) (equal to approximately 53,700 euros (EUR)) was confiscated. In addition, he was expelled from Denmark with a ban on returning. 12. When issuing the expulsion order, the High Court had regard, inter alia, to an opinion which had been obtained from the Immigration Board (Udlændingestyrelsen). The latter had held an interview with the applicant about his personal situation and ties to Denmark and Syria, which included information about schooling, language skills, work, family etc. Before the Immigration Service the applicant stated that he speaks and understands Arabic. He does not read or write Arabic. He also stated that he speaks, reads and writes Danish well. However, an interpreter was used in connection with the interview regarding his personal circumstances which was held on 26 April 2005. The Immigration Board also considered the applicant’s submission that he feared being returned to Syria because he had not sorted out the issue of compulsory military service and because he feared being punished by the Syrian authorities if they found out that he had been sentenced for drugs offences in Denmark. The Immigration Board referred to a consultation response of 9 February 2004 from the Ministry of Foreign Affairs, which included an expert opinion of 6 January 2004 obtained by a named professor and former dean at the Faculty of Law of Damascus University, concerning the principle of ne bis in idem set out in Article 27 of the Syrian Penal Code. That provision stated that no Syrian or foreigner will be charged in Syria with an offence on Syrian territory, if he has been convicted and has served his sentence abroad or if the punishment has lapsed owing to the limitation legislation of the relevant country or if he has been pardoned. According to Article 28 of the Syrian Penal Code, a judgment delivered abroad did not prevent prosecution for an offence falling under Article 19, which applied to any Syrian or foreign national who breached the law or committed a serious offence outside Syrian territory harming national security or who forged Government stamps or forged or counterfeited Syrian or foreign bank notes or debt instruments, which were lawful means of payment or in general circulation in Syria. 13. The High Court did not find that an expulsion order would contravene Article 8 of the Convention. It stated as follows: “When balancing the considerations mentioned in section 26, subsection 1 of the Aliens Act and the serious drugs offences committed by the applicant in the form of organizing the dealing in hard drugs of which the applicant has been found guilty, the High Court takes into account on the one hand that the applicant must be deemed poorly integrated in Danish society: he never completed lower secondary school and has not at all participated in the labour market. [The applicant] has also previously been convicted of assault, making threats against witnesses, human trafficking and theft. The High Court further emphasizes that [the applicant] speaks Arabic and has retained certain ties with Syria, where his mother, two half-siblings and other family members are living, and [the applicant] has also stayed in Syria several times, including a period of six months in 1997 when he worked as a painter. Factors weighing against expulsion are that [the applicant] entered Denmark at the age of seven and has now lawfully resided in Denmark for about fifteen years and has thus had his formative years and schooling here. It must also be taken into account that [the applicant] is married to and cohabits with a Danish national, a former stateless Palestinian, with whom he has a daughter of just under two years. In addition, [the applicant] has been married by an Islamic ceremony to another woman of Lebanese origin living in Denmark, now a Danish national, with whom he has a son of four and a half years. [The applicant] has visiting rights to his son, but in reality has only sporadic contact with his son. In view of the gravity of the offences committed and the sentence imposed, the High Court finds on an overall assessment that none of the considerations mentioned in section 26, subsection 1, of the Aliens Act constitutes a decisive argument against expulsion, nor can expulsion of [the applicant] be considered contrary to the considerations of proportionality following from Article 8 of the Convention...” 14. On appeal, on 25 August 2006, the judgment was upheld by the Supreme Court (Højesteret), referring to the reasoning by the High Court. 15. In February 2009, by virtue of section 31 of the Aliens Act, and since the applicant was nearing the end of his sentence, the police requested the relevant immigration authorities to determine whether, and in the affirmative, to which country the applicant could be returned. The applicant was interviewed and anew he objected to the expulsion. He maintained, inter alia, that although originally he had stated that he was born in Syria, where he was also registered, in reality he was born in Lebanon. The applicant did not wish to return to Syria, as he did not wish to perform his military service there. He also feared being returned to Syria due to his father’s political past there. Moreover, he was in conflict with a Syrian family, because he had had an affair with their daughter in 1999 and she had subsequently falsely accused him of rape. Finally, he was afraid of being sentenced again in Syria for the drugs crime he had committed in Denmark. He added that in December 2007 he had found a new girlfriend, who visited him in prison every week. The applicant said that he would agree to being sent to Germany, where he had an aunt. He had nine siblings in Denmark and two in Sweden. 16. By decision of 10 August 2009, the Aliens Service (Udlændingeservice), the former Immigration Board, found that the applicant could be expelled to either Syria or Lebanon. It took into account that the applicant had maintained all along that he was born in Syria, that in the public register in Syria he was recorded as a Palestinian from Homs in Syria, and that he had relied on his fear of being called up for military service there. The fact that, during an interview on 25 May 2009, he had stated that he was born in Lebanon and produced a copy of a birth certificate, could not lead to another assessment. The Aliens Service did not find the applicant’s story about the girl in Syria credible. It noted that he had not provided any information in this respect until the interview held on 25 May 2009, and found it unlikely that the girl’s family would persecute him since allegedly he had ended the relationship in 1999. In addition it found that a related document produced by the applicant, allegedly issued by the Syrian authorities, was not authentic. It did not find credible either the applicant’s allegation that he could not return to Syria because of his father’s political activities, notably since the applicant could not give any details about those activities. Finally, the Aliens Service did not find that the fact that the applicant had not performed compulsory military service in Syria or that he had been convicted for a drugs offence in Denmark could bar his expulsion. With regard to the latter, it referred to the consultation response from the Ministry of Foreign Affairs of 4 February 2004 (see paragraph 12). 17. The applicant appealed against the decision to the Refugee Appeals Board (Flygtningenævnet), before which he was represented by a lawyer, heard in person and able to submit observations. By decision of 2 December 2009, the Refugee Appeals Board upheld the Aliens Service’s decision, but found that the applicant could be expelled only to Syria, the country where he had lived at least from 1983 to 1988 and which he had visited from December 1998 to February 1999 and again in 2003. 18. In the meantime, on 16 August 2009, in accordance with the provisions of section 50 of the Aliens Act (Udlændingeloven), the applicant had instituted proceedings before the District Court in Svendborg (Retten i Svendborg) claiming that there had been material changes in his circumstances, for which reason he requested the court to review the expulsion order. The applicant relied on Article 8 of the Convention and referred in particular to his two children in Denmark and to his new girlfriend, who had a child from a previous relationship, born in June 2008. Before the District Court the latter stated that she would follow the applicant to Syria. 19. On 29 March 2010 the District Court rejected the applicant’s request as it did not find that his situation had changed to such an extent that there was any reason to revoke the expulsion order. Upon appeal, the applicant submitted that he had married his girlfriend according to Arabic tradition, that she was expecting their child, and that she no longer wanted to follow him to Syria. 20. On 26 May 2010 the High Court upheld the District Court’s decision and stated: “For the reasons stated by the District Court and because the [applicant’s] present girlfriend, with whom he is married by an Islamic ceremony, no longer wants to accompany him to Syria [even though] she has recently become pregnant and is expecting the [applicant’s] child, the outcome cannot be different. In this regard the High Court has emphasised that the parties’ relationship commenced after the Supreme Court’s judgment of 25 August 2006, for which reason the parties are considered not to have such justified expectations of being able to live together in Denmark that the expulsion can be revoked.” 21. Leave to appeal to the Supreme Court was refused on 19 August 2010. 22. The applicant was deported to Syria on 3 November 2010. According to a report procured by the Danish police, the applicant’s father and uncle had travelled to Syria beforehand to meet the applicant upon arrival. Three police officers accompanied the applicant on the plane. They submitted the applicant’s travel documents and a document translated into Arabic, stating that the applicant had fully served his sentence in Denmark, to the security staff on board and the immigration authorities at the airport in Damascus. 23. Before being deported, on 8 October 2010, the applicant lodged a complaint with the European Court of Human Rights and requested the application of an interim measure pursuant to Rule 39 of the Rules of Court. Since he only relied on Article 8 of the Convention and invoked his separation from his two children, his new wife, her child from a previous marriage, and their future child, his request for a Rule 39 indication was not submitted to the President for a decision, of which fact he and his representative were informed in a letter from the Registry of 12 October 2010. 24. Subsequently, the applicant’s representative informed the Court that upon arrival at Damascus airport, the applicant had allegedly been detained and placed in different prisons, interrogated, notably about his conviction in Denmark, whether he was addicted to drugs and whether there were persons involved in Syria. During this time, the applicant had regularly been subjected to torture. 25. On 4 December 2010, he was allegedly released in order to commence thirty months’ military service in Homs, but he was exempted after one month because he suffered from heart problems. 26. Allegedly, he was also summoned to appear before the court in Homs to explain about his conviction in Denmark. It appears that that case has been discontinued. 27. The applicant’s wife and their child went to Syria to visit him. 28. On 12 September 2011, the applicant’s representative informed the Court that the applicant had fled Syria and entered Greece, where he was detained. 29. On 21 November 2011, the applicant’s representative informed the Court that the applicant had entered Sweden and requested asylum there. 30. The applicant was granted asylum in Sweden some time during the summer of 2013.