ALZERY v. SWEDEN
Inadmissible
Nicolas Bratza
The applicant, Mr Mohammed Alzery, is an Egyptian national, who was born in 1968 and lives in Egypt. He was represented before the Court by Mr K. Jönsson, a lawyer practising in Stockholm. On 4 August 1999 the applicant arrived in Sweden and requested the Migration Board (Migrationsverket) to grant him asylum. He claimed that he was persecuted for political reasons in Egypt. The Migration Board appointed a legal representative for the applicant and interviewed him about his reasons for asylum. On 30 October 2001 the Swedish Secret Police (Säkerhetspolisen –hereinafter referred to as “SÄPO”) submitted certain information regarding the applicant to the Migration Board and objected to his being granted asylum in Sweden in light of that information. Following this, on 12 November 2001, the Migration Board noted that it transpired from the information provided by SÄPO that the applicant had withheld important information and it decided to transfer the matter to the Government of Sweden for decisionUtlänningslagen) but that the assessment made by SÄPO, which the Migration Board found no reason to question, pointed in a completely different direction. Thus, it considered that the balancing of these two conflicting interests had to be made by the Government. On 13 November 2001 the Aliens Appeals Board (Utlänningsnämnden), in a submission to the Government, stated that it shared the opinion of the Migration Board that the Government should decide on the application. On 18 December 2001 the Government rejected the applicant's request and ordered his immediate expulsion from Sweden's own statements, were such that he could be considered as a refugee according to the Aliens Act. However, relying on the information submitted by SÄPO, the Government considered it established that he had held a leading position in an organisation which had been involved in terrorist acts and that he could be considered responsible for this organisation's activities. Thus, for reasons of national security, he should be refused protection in Sweden. Furthermore, the Swedish Government had received a guarantee from the Government of Egypt that the applicant would be afforded a fair trial in Egypt and that he would not be subjected to torture or inhuman treatment or punishment of any kind or be sentenced to death. For this reason, the Government found that the applicant could be expelled to Egypt without facing the risk of being treated contrary to Article 3 of the Convention or any other international treaty. It decided that the applicant should be expelled immediately and that SÄPO should be responsible for the implementation of this measure. Consequently, on 18 December 2001, the expulsion was effectuated by SÄPO and, allegedly, with the help of American authorities who made available to SÄPO a small airplane to take the applicant to Egypt, where he was handed over to the Egyptian authorities. The applicant claimed that he was wearing shackles and handcuffs for the duration of the expulsion, which were attached to a special harness in the plane. Not until the following day, 19 December 2001, was the applicant's lawyer informed about the decision and the expulsion. Moreover, it was only through the Government's decision that he became aware of the Egyptian Government's guarantee to the Swedish Government (a copy of it was submitted to him, upon request, on 18 March 2002) and the nature of the national security threat which the applicant was supposedly posing. Apparently, upon return to Egypt, the applicant was immediately imprisoned and he alleged that he was tortured and ill-treated. He remained in prison until 27 October 2003 when the suspicion against him was disconfirmed and he was released. During his imprisonment, the Swedish Ambassador to Egypt visited him rather regularly, once a month in the first half year and then every other month in order to ensure that he was not ill-treated and to observe that the guarantee that the Egyptian Government had given to the Swedish Government was adhered to. According the Embassy's reports on the visits, the applicant had not stated during any of the visits that he had been tortured or ill-treated. During the Ambassador's visit on 9 September 2002, he requested the prison authority to allow the applicant to sign the Court's power of attorney which the applicant's lawyer had sent to the Embassy in Cairo. On 26 September 2002 the Ambassador informed the applicant's lawyer by fax that the applicant, since he was detained, did not have the right to sign the power of attorney. In the meantime, the applicant's lawyer in Sweden repeatedly requested the Migration Board, the Government and SÄPO to grant him access to all documents concerning the case, even those classified as secret. It would appear that, now, he has been granted access to most of the material, though not to all of it. On 1 April 2002, the United Nations Human Rights Committee adopted its concluding observations regarding Sweden's fifth periodic report to the Committee (CCPR/CO/74/SWE). In paragraph 12 of these observations, the Committee expressed concern at cases of expulsion of asylum seekers suspected of terrorism to their country of origin. In this respect the Committee requested additional information concerning the judicial procedures which the applicant and one other person expelled at the same time to Egypt were facing or might face. The Swedish Government replied to this request on 15 December 2003 and submitted a further update on 23 June 2004 in which the Government, inter alia, stated that the Egyptian Government, although dismissing the allegation of torture as unfounded, had agreed to undertake an investigation into the matter. The modalities for such an investigation were being discussed. The Swedish Government also stated that they continued to have regular contact with the applicant although he had now been released. Further, following a visit to Sweden in April 2004, the Council of Europe Commissioner for Human Rights, in his report dated 8 July 2004, mentioned the circumstances of the applicant's case and his expulsion from Sweden, noting that it highlighted the challenges that the fight against terrorism had created for the protection of human rights (CommDH(2004)13, §§ 18 and 19). He recommended the Swedish Government to “[a]dopt the necessary legislative and policy changes in order to ensure that the rights contained in Articles 3 and 13 of the European Convention are respected in relation to asylum-seekers who are considered to raise concerns of national security.” (ibid., § 49, point 5). On 16 June 2002 the applicant's Swedish lawyer faxed an incomplete application form to the Court in which he briefly stated the reasons for lodging a complaint on behalf of his client against Sweden. The application form was also sent by ordinary mail. In the form, the lawyer very briefly stated the facts of the case, adding that the account would be completed. Further, under part III, “statements of alleged violations”, he claimed that Sweden had violated his client's rights under Articles 2, 3, 6 and 13 of the Convention and under Article 1 of Protocol No. 6, noting that the reasons for these allegations would be expanded upon in a separate document. He added that he requested respite to do so, within a reasonable time after the Supreme Administrative Court had delivered its decision, and that due to problems of secrecy (because of the national security interest) it was difficult for him to submit a complete application at that time; the application form was submitted in order to comply with the six month rule. Furthermore, under part IV, V and VII of the form, he noted that “it will be completed”. The Registry replied by letter of 21 June 2002, acknowledging receipt of the fax and the original of the application form and stated that the Court “awaits further documents in the matter”. The case was assigned application number 23889/02 but was not allocated to a decision body, as no copies of national decisions or documents had been submitted. On 20 August 2003 the file was destroyed as no further news had been received from the applicant's lawyer for more than one year. Not until 19 March 2004, one year and nine months after receipt of his first fax, did the Court hear from the lawyer again. He then submitted a signed power of attorney and a request that he be granted respite until 3 May 2004 to file further documents. As the file had been destroyed, the Court opened a new file under the current case number and, on 25 March 2004, sent an introductory letter to the lawyer. On 23 April 2004 the lawyer contacted the Court, asking how it was possible that the case-file had been destroyed without his being informed about it beforehand and providing a brief explanation of the situation. After being requested to submit the reasons for his extensive silence in writing to the Court, the lawyer, by letter of 21 May 2004, complied with this request.