AS TO THE ADMISSIBILITY OF
Application no. 10786/04
by Mohammed ALZERY
The European Court of Human Rights (Fourth Section), sitting on 26 October 2004 as a Chamber composed of:
Sir Nicolas Bratza, President,
Mr M. Pellonpää,
Mr J. Casadevall,
Mr S. Pavlovschi,
Mr J. Borrego Borrego,
Mrs E. Fura-Sandström,
Ms L. Mijović, judges,
and Mr M. O'Boyle, Section Registrar,
Having regard to the above application lodged on 19 March 2004,
Having deliberated, decides as follows:
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.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
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 decision. It observed that the circumstances of the case were such that the applicant could be considered in need of protection under the Aliens Act (Utlänningslagen) 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. The Government first noted that the circumstances of the case, mostly based on the applicant'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.
B. Other international procedures
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).
C. Procedure before the Court
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 Court1 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.
The applicant complained under Articles 2 and 3 of the Convention and Article 1 of Protocol No. 6 to the Convention that his expulsion from Sweden to Egypt had resulted in his being tortured and ill-treated and faced with the risk of being sentenced to death or killed during the torture. Further, invoking Articles 6 and 13 of the Convention, he complained that, with regard to the allegations of terrorist activities against him, he had neither had access to court nor an effective remedy. Moreover, his expulsion order had not been examined by a court.
The applicant complained that the Swedish Government's decision to expel him and his expulsion from Sweden to Egypt violated his rights under Articles 2, 3, 6 and 13 of the Convention as well as Article 1 of Protocol No. 6 to the Convention.
Pursuant to Article 35 § 1 of the Convention, the Court has first considered the question of the date of introduction of the application. In this respect the Court recalls that the applicant's first communication with the Court was on 16 June 2002 in which he announced his intention to complete the application within a reasonable time. However, he did not resume the correspondence with the Court until one year and nine months later, on 19 March 2004, at which time he submitted a power of attorney and requested respite until 3 May 2004 to supplement his application. By letter dated 21 May 2004, he furnished the Court with the relevant documents and a detailed account of the facts of the case and his complaints.
He submitted that it had always been his intention to send a completed application to the Court but that it had not been possible due to exceptional circumstances beyond his control since the applicant had been imprisoned upon arrival in Egypt. The applicant had not been allowed by the prison authorities to sign the Court's special power of attorney, which the lawyer thought was a mandatory requirement. This had been signed first in January 2004 when the lawyer visited him in Egypt, following his release on 27 October 2003 from prison. Moreover, from the Court's letter of 21 June 2002, the lawyer had not understood that there could be a risk of the file being destroyed after one year since the Court had not informed him about this. Thus, he had not been aware that he should have kept the Court informed even though there was no progress in the case. He stressed that the case was of the utmost importance for the applicant considering the very serious human rights violations that he had been the victim of.
According to its case-law, the Court considers the date of introduction of an application to be the date of the first letter indicating an intention to lodge and application and giving some indication of the nature of the complaint. However, where a substantial interval follows before an applicant submits further information as to his proposed application, the Court examines the particular circumstances of the case in order to decide what date shall be regarded as the date of introduction and from which to calculate the running of the six months period set out in Article 35 § 1 of the Convention (see among others, Hansen and Others v. Denmark, no. 22507/93, Commission decision of 5 April 1995, Decisions and Reports (DR) 81, p. 67; and Lindberg v. Norway, no. 26604/95, Commission decision of 26 February 1997, unreported).
In this respect, it would be contrary to the spirit and purpose of the six month rule to accept that by means of an initial letter an applicant could set in motion the procedure provided for in Article 34 of the Convention only to remain inactive thereafter for an unlimited and unexplained period of time. Delays in the pursuit of an application are acceptable only in so far as they are explained by duly justified reasons connected to the subject matter of the application or the applicant personally (see, Quaresma Afonso Palma v Portugal, (dec.), no. 72496/01, 13 February 2003, unreported).
The Court further recalls that the purpose of the six month rule is to maintain reasonable legal certainty and to ensure that cases raising problems under the Convention are examined within a reasonable time. It ought also to prevent the authorities and other persons concerned from being kept in a state of uncertainty for a long period of time. Lastly, the rule is designed to facilitate establishment of the facts of the case; otherwise, with the passage of time, this would become more and more difficult, and a fair examination of the issue raised under the Convention would thus become problematic (see, among others, M. v. Belgium, no. 15213/89, Commission decision of 1 July 1991, Decisions and Reports (DR) 71, p. 234; and Hansen and others v. Denmark, cited above).
As concerns the present application, the Court fully recognises the seriousness of the alleged violations of which the applicant claims to have been the victim. Moreover, it considers that regard should be had to the fact that the applicant himself was imprisoned in Egypt and thus not in a position to protect his own interests but was completely dependent on his lawyer to do so on his behalf.
However, the Court is struck by the fact that the lawyer did not introduce the application to the Court immediately after 18 December 2001, when the decision to expel the applicant had been taken and implemented, but did not do so until a few days before the expiry of the six months time-limit and, then, only to submit an incomplete application form. Furthermore, although the lawyer met the applicant in Egypt in January 2004, when the power of attorney was signed, the lawyer did not submit it to the Court until 19 March 2004 and the fully completed application was sent only on 21 May 2004.
The Court also observes that since the applicant's expulsion, his lawyer has continuously requested and received material concerning the applicant's case in Sweden. The lawyer has also received decisions from the Swedish Government and the national courts regarding access to secret files concerning the applicant and the handling of his case in Sweden (such as the decision of 10 October 2002 by the Supreme Administrative Court, referred to above). Thus, it could reasonably have been expected that the lawyer submit those documents to the Court, upon their receipt, in order to complete the application, as he had so announced at the time of lodging the application. Moreover, the lawyer already possessed the most important decisions, such as the Government's decision to expel the applicant, which he could easily have submitted to the Court from the outset.
As concerns the lawyer's statement that he was not informed that an application, not yet complete, would be destroyed if the Court received no communication in the case for more than a year, the Court notes the following. Since the lawyer had stated in his initial communication with the Court that he would submit complete information, including documents, “within a reasonable time after the Supreme Administrative Court has delivered its decision”, the registry of the Court responded that it would await the documents. It should have been apparent to the lawyer that the Court expected to hear from him again within a relatively short time. However, although the Supreme Administrative Court gave its decision on 10 October 2002, only four months later, the lawyer did not act in the way he had indicated.
The Court is not persuaded by the lawyer's explanation for his long silence, namely that he had understood that the completed power of attorney form was an absolute requirement for lodging an application. In any event, he could reasonably have been expected to keep the Court informed of the difficulties he was encountering (such as submitting the fax, dated 26 September 2002, from the Swedish Embassy in Cairo, referred to above under “Facts”) and to request whether it was open to him to submit an “old” power of attorney or correspondence from the national proceedings which bore out his claim to be the applicant's legal representative.
Further, on the evidence before it, the Court is satisfied that the applicant either possessed or could easily get access to the relevant information concerning the procedure before the Court, since this information was available on the Court's internet pages in June 2002.
Moreover, the Court observes that it is now more than two and a half years since the expulsion was carried out raising issues of legal certainty and the fair examination of the case within a reasonable time, having regard to the very serious and sensitive nature of the alleged violations as well as the justification for the applicant's expulsion, namely national security interests of Sweden.
Finally, the Court notes that the Swedish Government has had to answer to other international human rights bodies, notably the UN Human Rights Committee and the Council of Europe Commissioner for Human Rights, with regard to their handling of the expulsion of the applicant and one other person to Egypt.
In view of the above considerations, the Court does not find that the reasons submitted by the applicant to explain the delay are such that they could have suspended the running of the six months period referred to in Article 35 § 1 of the Convention.
Therefore, notwithstanding the applicant's initial submission of 16 June 2002, the Court considers in the present case 19 March 2004 to be the date of introduction of the application and it follows that, having thus been introduced out of time, it must be rejected under Article 35 § 4 of the Convention.
For these reasons, the Court by a majority
Declares the application inadmissible.
Michael O'Boyle Nicolas BRATZA
1 The decision of the Supreme Administrative Court was delivered on 10 October 2002 and concerned a request by the lawyer, on behalf of his client, to get access to certain documents which had been classified as secret.
ALZERY v. SWEDEN DECISION
ALZERY v. SWEDEN DECISION