A.B. v. SWEDEN
Inadmissible
Nicolas Bratza
The applicant, Mr. A.B., is an Iranian national, who was born in 1962 and lives in Sweden. He is represented before the Court by Mrs. B. Bruks, a University lecturer in Law Science at the Mid-Swedish University in Östersund. The applicant belongs to an ethnic minority in Iran called the Baluchis. On 9 November 1988 the applicant arrived in Sweden with his family, his wife and their two sons, born in 1985 and 1987 respectively, and applied for political asylum under the name of A.D., born in 1960. On the same day, the Immigration Board (Invandrarverket) held a first interview with the applicant in which he stated that he had fled from Baluchistan in Iran due to political problems. He claimed that he was an opponent of Khomeini and the Iranian regime and that he was politically active within the PAYKAR (a leftist movement). Further, he alleged that he had been imprisoned due to his political activities on two occasions, first in 1981 during two months and then again in 1984 for two years. In September 1988 he and his family had fled to Pakistan where, through smugglers, they had bought forged Pakistani passports and visas and tickets for Sweden. They travelled to Sweden on 7-8 November 1988 and, upon arrival, they threw away the passports since they were forged. On 29 November 1988 the Immigration Board held a second interview with the applicant where he told about his life and political activities in more detail. He claimed that he had become politically active when the Shah was ousted in 1979 and that as a student he had been involved in an organisation called Sazmane Paykar (a communist party) for which he sold the organisations newspaper, handed out leaflets and painted slogans on walls. He had been arrested for the first time in 1980 and, after a trial, he had been sentenced to six months deportation to another region of Iran, Jahrom. In 1984 he had married and, between 1984 and 1988 he had worked as a driver, delivering products for different stores. He stated that he was not religious, although his parents were Sunni Muslims, but that it had been particularly difficult for him to be politically active since he was a Baluch and the central regime under Khomeini had had several conflicts with the Baluchis. At this point the interview was interrupted and it was not resumed until 5 December 1988 when he continued his account of events. He stated that after he had returned from Jahrom he had resumed his political activities, although not so openly anymore. In October 1981 he had again been arrested and during the interrogations he had been whipped and placed in very painful positions. He never admitted to anything and, in January 1985, he was released. At that time his political organisation had ceased to exist but he had soon joined another organisation, Baluch Raje Zorombersh (Baluchistan National Movement), which fought for the independence of Baluchistan from Iran. The applicant claimed that he had transported newspapers and leaflets for the organisation in his car while working as a delivery man for various stores. In August 1988 a close associate of his in the organisation had been arrested and the applicant had then decided to flee with his family to avoid being arrested as well. He stated that if he was returned to Iran he would be arrested and imprisoned and probably executed due to his political activities. On 18 January 1989 the Immigration Board granted the applicant political asylum and a permanent residence permit. In March 1996 the applicant was arrested and charged with having murdered his wife. He admitted that he had stabbed her but claimed that it should be considered as manslaughter (dråp). He stated that his wife had wanted a divorce and that she had moved to another apartment with the children. He knew that she was seeing other men. He further asserted that his wife’s family in Iran had repudiated her when she demanded the divorce and that her father had told him that he was not a man if he did not kill her. He claimed that he had regretted the act immediately and had called the emergency services. On 26 May 1996 the Malmö District Court (tingsrätten) convicted the applicant of murder and sentenced him to ten years’ imprisonment and lifetime expulsion from Sweden. When deciding the ten years’ imprisonment the District Court took into account the detriment caused to the applicant by the expulsion and reduced the normal prison sentence, which would have been life imprisonment, accordingly. As concerned the expulsion, the District Court had requested that the Immigration Board submit its observations on the matter. In its observations, the Immigration Board stated that the reasons invoked by the applicant at the time when he was granted asylum were not such that, according to the current practice, he would have been granted asylum. However, in line with the Immigration Board’s practice and the provisions in the Aliens Act, there was no reason to recall his refugee status. On the other hand, the Immigration Board found that there were no impediments to enforcing a possible order to expel the applicant. The District Court also heard a witness called by the applicant who stated that he would be executed in Iran due to his political activities. The court considered that due to the very serious nature of the crime, there were particular reasons for expelling the applicant. The applicant did not appeal against the judgment. Following the conviction, the applicant lost custody of his sons and they were taken into care by the social authorities and placed in a foster home. They then had no contact with their father for some years. In December 2000 the applicant was granted permission to call them once a month and to visit them when they were visiting his brother, who lived in Gothenburg. The children allegedly had a close relationship with their uncle. On 5 December 2001 the applicant requested the Government, through the Ministry of Justice, to revoke the expulsion order. He informed the Government of his true identity, A.B., and gave an account of what he stated was his true life story. He maintained that he had been politically active within the PAYKAR, distributing newspapers and leaflets, organising demonstrations and writing slogans on walls, and that he had been arrested in 1980 and detained for two months before he was sentenced by a revolutionary court to six months’ deportation to the city of Jahrom. When he returned home, he married and resumed his political activities. During the autumn of 1981 he was again arrested and this time he was tortured during the interrogations. He claimed that he had been whipped, beaten, kicked and placed in very painful positions. After roughly two years’ detention, he had been released but had to report to the police once a week. His relatives had helped him to buy a small lorry to enable him to work and support his wife. During the summer of 1984 he had decided to flee from Iran and, after careful planning, he had fled with his wife to Pakistan where he was recognised as a refugee by the UN High Commissioner for Refugees. In November 1985 his first son was born. The applicant alleged that many refugees were killed in Pakistan for which reason he and his family, in February 1986, had travelled to the Netherlands where he had applied for asylum. In October 1987 his second son was born and, in 1988, his request for asylum was refused by the Dutch authorities. On 8 November 1988, to avoid being sent back to Iran, the applicant had travelled to Sweden with his family, on forged documents, where he had applied for asylum under the name of A.D. Before the Government the applicant submitted that he had continued his political activities in Sweden where he had joined the Baluchistan National Movement (BNM) and had become a board member and a member of the editorial board of “Zrombech”, the organisation’s newspaper. The applicant requested that the Government examine his reasons for asylum based on the information he had submitted. In particular, because of his family situation, an expulsion would mean that his sons would become parentless in Sweden. Last, he claimed that the Iranian authorities were aware of his political activities and that he would be executed because of this if forced to return to his home country. He submitted several documents to support his claims about his political activities, both in Iran and in Sweden, inter alia, of which he submitted the following to the Court: A fax from the BNM in London, dated 17 May 1996, in which it was stated that the applicant was a former member of the central committee of the BNM and a member of the editorial board of the movement’s news paper, “Zrombesh”. It further stated that the applicant would face torture and execution if returned to Iran due to his political activities. One further letter from the BNM, dated 20 December 2003, in which it renewed its concerns for the applicant’s safety if expelled to Iran due to his active opposition to the Iranian regime and that country’s lack of respect for human rights. A fax from the Spanish Catholic Migration Commission, dated 22 May 1996, which drew attention to Article 3 of the Convention and noted that to expel the applicant to Iran would imply serious danger to his life and freedom. A copy of his certificate issued in July 1984 by the UN High Commissioner for Refugees in Pakistan, stating that the applicant was recognised as a refugee by the UN. His date of birth was noted to be 1958. On 21 May 2002, after a request by the Government, the Migration Board (Migrationsverket) submitted its observation regarding the matter. It considered that there were no obstacles to expelling the applicant to Iran. During the summer of 2002 the applicant published a book about his life, in Swedish, which included information about his political activities, experiences from Iranian prisons and criticism of the Iranian regime. He claimed that the content of the book would automatically lead to a very harsh sentence for him if he were returned to Iran since he was convinced that the Iranian Embassy in Sweden would have obtained a copy of the book. One thousand copies of the book had been printed. Based on this new information, the Government requested that the Migration Board submit supplementary observations. On 26 August 2002, the Migration Board maintained that the applicant’s political activities in his home country as well as the political activities he had performed in Sweden before his imprisonment were not such that they could constitute an impediment to the enforcement of his expulsion to Iran. However, it stated that some of the statements made by the applicant in his book were of such a character that it could not be excluded that the Iranian authorities had noted them and that the applicant might be apprehended as a result if forced to return. The Migration Board therefore considered that there could be an impediment against enforcing the expulsion for this reason. On 12 October 2002 the applicant was conditionally released from prison but placed in detention awaiting expulsion following a decision, two days earlier, by the Minister of Justice. However, on the same day, the Minister of Justice had also decided that the applicant should not be expelled until the Government decided otherwise. On 1 December 2002 the Minister of Justice decided that the applicant should be released from detention. Apparently, on 28 April 2003, the applicant participated in a Swedish radio programme which discussed the topic of honour-related murders. In June 2003 the Government requested the Swedish Embassy in Iran to investigate whether the applicant would be at risk if returned to Iran and to submit its assessment on the matter. On 27 July 2003 the Embassy submitted its answer to the Government. It stated that it was possible that the Iranian authorities were aware of the BNM’s activities outside Iran but that it did not appear that the organisation had any activities or contacts within the country. As concerned the applicant’s book, the Embassy made the assessment that it did not contain any information which could be considered as offensive by the Iranian authorities. It noted that the prison conditions in Iran were discussed in the Iranian media and that the applicant’s experiences and descriptions of the prisons were outdated. Moreover, the political activities described by the applicant in his book were not current and were depicted in a vague and summary manner. Thus, the Embassy concluded that the applicant would not risk being punished if returned to Iran, neither because of his political activities nor because of his book. The applicant claimed that the Embassy had not seriously read and considered the content of his book. He had also participated in more radio programmes where he had made critical comments against the Iranian regime and culture. Moreover, he stated that his wife’s relatives would kill him if he returned as revenge for having murdered her. Last, he stated that his relationship with his sons was improving all the time and that he met with them and spoke with them on the phone frequently. In particular, his relation to his younger son was getting stronger and his son had asked to be allowed to live with the applicant. On 25 September 2003 the Government rejected the applicant’s request to have the expulsion order revoked. The Government found that there was neither any impediment against the enforcement of the expulsion nor any other special reason, as set forth in the Aliens Act, to revoke the expulsion order. In November 2003 the applicant lodged a new application with the Government, requesting that the expulsion order be revoked. He stated that his younger son had had a severe crisis as a result of the Government’s rejection since he did not want to lose his father. The younger son spent every other weekend with his father and had expressed the wish to be allowed to live with him. The older son kept his distance from his father but did not want him to be expelled. He submitted a medical certificated written by a Chief Physician at the Children and Youth Psychiatric Clinic in Östersund which stated that consideration should be taken of the children’s difficult situation and need of their father. On 11 December 2003 the Government rejected the request, finding no reason to change its previous decision. In January 2004 the applicant lodged yet another application with the Government to have the expulsion order revoked. He primarily invoked his younger son’s deteriorating psychological status which was caused by the fear of losing his father and becoming parentless. The applicant and his younger son had developed a very close relationship and it would cause irreparable damage to the son if his father were to be expelled expelled. On 12 February 2004 the Government rejected the application on the same grounds as previously. On 17 August 2004, after a request by the applicant, the President of the Chamber to which the case had been allocated decided, under Rule 39 of the Rules of Court, to indicate to the Swedish 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 Iran until the Chamber had had the opportunity to examine the application on 31 August 2004. Pursuant to Chapter 1, Article 8 of the Penal Code (Brottsbalken), a crime may, apart from ordinary sanctions, result in special consequences defined by law. Expulsion on account of a criminal offence constitutes such a special consequence. Provisions on expulsion on this ground are laid down in the Aliens Act. According to Chapter 4, section 7 of the Act, an alien may not be expelled from Sweden on account of having committed a criminal offence unless certain conditions are satisfied. Firstly, he or she must be convicted of a crime that is punishable by imprisonment. Secondly, he or she may only be expelled if he or she is in fact sentenced to a more severe punishment than a fine and if (1) it may be assumed, on account of the nature of the crime and other circumstances, that he or she will continue his or her criminal activities in Sweden or (2) the offence, in view of the damage, danger or violation involved for private or public interests, is so serious that he or she ought not to be allowed to remain in the country. Furthermore, under Chapter 4, section 10 of the Act, when considering whether or not an alien should be expelled, the court shall take into account his or her links to Swedish society. As regards aliens who are considered to be refugees and in need of protection in Sweden, they may be expelled only if they have committed a particularly serious crime and it would entail serious danger for public order and safety to allow them to remain in Sweden. An alien with refugee status shall be considered as a refugee in need of protection in Sweden unless it is evident that he or she no longer is a refugee with such a need. Moreover, the court must have regard to the general provisions on impediments to the enforcement of an expulsion decision. Thus, pursuant to Chapter 8, section 1 of the Act, there is an absolute impediment to expelling an alien to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment. Further, a risk of persecution generally constitutes an impediment to enforcing an expulsion decision. According to Chapter 7, section 16 of the Act, if the Government finds that a judgment or decision to expel a person on account of having committed a criminal offence cannot be executed or if there are otherwise special reasons not to enforce the decision, the Government may repeal, in part or completely, the judgment or decision by the court. The Government may also, in accordance with Chapter 11, Article 13, of the Instrument of Government (Regeringsformen) grant clemency or reduce a penal sanction or other legal effect of a criminal act.