FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 13284/04 
by Kamal BADER 
against Sweden

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 L. Garlicki,

Mr J. Borrego Borrego, 
 Mrs E. Fura-Sandström, 
 
Ms L. Mijović
 Mr D. Spielmann, judges
and Mr M. O'Boyle, Section Registrar,

Having regard to the above application lodged on 16 April 2004,

Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court and the fact that this interim measure has been complied with,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The first applicant is Mr Kamal BADER Muhammad Kurdi, born in 1972. The other applicants are his wife, born in 1973, and their two children, born in 1998 and 1999, respectively. They are all Syrian nationals and are currently in Sweden. They are represented before the Court by Mr K. Larsson, a lawyer practising in Karlskrona, Sweden.

The respondent Government are represented by their Agent, Ms E. Jagander of the Ministry for Foreign Affairs.

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicants arrived in Sweden on 25 August 2002 and applied to the Migration Board (Migrationsverket) for asylum on the following day. The first applicant submitted that he was of Kurdish origin, Muslim (Sunnite) and had lived with his family and worked in Beirut since 1995. He claimed that, in December 1999, he, and three of his brothers, had been arrested by the Syrian Security Police and kept imprisoned in Halab for nine months because the police wanted information about another brother who had escaped from military service in 1998. He further alleged that during the imprisonment he had been tortured and ill-treated and that he had been released after having been hospitalised due to the ill-treatment. After his release, he had moved back to his family in Beirut. Between 2001 and 2002 he was arrested four times by the Security Police, questioned about his brother's whereabouts and beaten but, on each occasion, released after a few days. In 2002 the applicants had moved to Halab where they had remained until they left Syria in August 2002.

The applicants stated that they had left Syria legally, flying from Damascus to Turkey and then on to Stockholm. They had travelled using their own passports but had destroyed them upon arrival in Sweden.

On 27 June 2003 the Migration Board rejected the family's application for asylum and their request for residence permits. It first noted that the general situation for Kurds in Syria was not such that it satisfied the requirements for asylum, inter alia, since Kurds who were Syrian nationals had the same rights as all other citizens. Moreover, the majority of the population in Syria were Sunnite Muslims. The Migration Board then found that the applicants had not shown that they risked persecution if returned to Syria. It observed that the first applicant, except for the first time in 1999, had been released shortly after each interrogation by the Security Police. Moreover, as the interrogations had concerned his brother and not himself, the Migration Board considered that he was not personally in need of protection. In this respect, it noted that the first applicant had not been able to explain why his brother had left the army or why the Security Police was so interested in him. The Migration Board also observed that the applicants had left Syria legally.

The applicants appealed to the Aliens Appeals Board (Utlänningsnämnden), invoking the same grounds as before the Migration Board and adding that Kurds were being persecuted and discriminated against in Syria. They also claimed that they had paid US$ 6,000 for false passports which they had subsequently discarded. Furthermore, the second applicant had been taken to an emergency psychiatric clinic during three days in July 2003 due to a crisis reaction and panic attacks.

On 16 September 2003 the Aliens Appeals Board rejected the appeal on the same grounds as the Migration Board, stating that the new reasons invoked by the applicants did not change their position.

The applicants subsequently lodged a new application with the Aliens Appeals Board which was rejected on 27 November 2003.

Also, during the autumn of 2003, the District Court (tingsrätten) of Blekinge convicted the first applicant of having committed illegal threats against his four-year-old daughter and a neighbour and sentenced him to a conditional sentence and expulsion from Sweden. However, he appealed to the Court of Appeal (hovrätten) of Skåne and Blekinge which, on 24 February 2004, upheld the conviction and the conditional sentence but quashed the expulsion decision as it did not find that the crime in itself merited expulsion.

On account of the District Court's decision on expulsion, the police authorities started to prepare for enforcement. In this connection the Swedish Embassy in Damascus found out that the applicants had left Damascus legally on 17 August 2002, using their own passports and that they had in fact travelled, not via Turkey, but via Cyprus.

In January 2004, the family submitted a new application for asylum to the Aliens Appeals Board and requested that the expulsion be stayed. They invoked a judgment rendered on 17 November 2003 by the Regional Court in Aleppo, in Syria. The judgment stated that the first applicant had been convicted of complicity to murder, in absentia, and sentenced to death.

On 9 January 2004 the Aliens Appeals Board decided to stay the enforcement of the expulsion of the applicants until further notice and requested them to submit the judgment in the original and other relevant documents in support of their claim.

On 26 January 2004 the applicants submitted a certified copy of the judgment from which it emerged that the first applicant and his brother had, on several occasions, threatened their brother-in-law because they considered that he had ill-treated their sister and paid an insufficient amount as dowry, thereby dishonouring their family. In November 1998 the first applicant's brother had shot the brother-in-law, after having planned the murder with the first applicant, who had provided the weapon. The court, which noted that the two brothers had absconded, found them guilty of the charges and sentenced them to death. They were also ordered to pay one million Syrian pounds to the victim's family and they were deprived of their civil rights and all their property was frozen. Furthermore, since the first applicant had been found to have acquired a military weapon, he was also charged with illegal possession of a military arm, a charge which the court handed over to the military prosecutor to pursue. Lastly, it was stated in the judgment that “[t]his judgment has been announced in the absence of the accused. [It] can be re-opened.” It appears that the judgment has gained legal force.

The applicants also submitted some further documents concerning the proceedings in Syria, including a summons, dated 10 August 2003, obliging the first applicant to present himself before the court within ten days, failing which he would lose his civil rights and his control over his property. Moreover, he claimed that he had not been involved in the murder as he had been in Beirut at the time. He also explained that he had, in fact, been in custody during the nine months in 1999/2000, as he had been suspected of being involved in the murder, and that he was released on bail on 9 September 2000. He insisted that he had not told of this before because it concerned the family's honour and the humiliation of his sister. The applicant was represented by a lawyer in Syria whose contact details were submitted to the Aliens Appeals Board.

On 16 February 2004 the Aliens Appeals Board requested the Swedish Embassy in Syria to verify whether the judgment was authentic and, if so, what were the possibilities of appeal or re-opening of the case. They further inquired if it was possible to be granted a reprieve and if death sentences were normally executed in Syria.

By letter dated 14 March 2004, the Swedish Embassy in Syria informed the Aliens Appeals Board that a local lawyer (förtroendeadvokat), whom they had engaged, had confirmed that the judgment was authentic. He had also carried out research concerning the Syrian criminal law as regards sentences for murder and manslaughter which was attached to the Embassy's letter.

In summary, the Embassy, in their letter, provided the following information to the Aliens Appeals Board. According to the local lawyer it was probable (sannolikt) that the case would be re-tried in court once the accused were found and that it was then very likely (troligt) that new witnesses would be called and the entire case be re-heard. Further, if the case was “honour related”, it was usually considered as an extenuating circumstance leading to a lighter sentence. Moreover, he had stated that it was not unusual that the court meted out the most severe punishment possible when the accused did not appear for the trial despite having been summoned. The Embassy then stated that, according to their sources, it appeared that the accused had to be personally present in order to obtain a re-trial. In this respect, it added that the Syrian legal system was marked by considerable (betydande) arbitrariness and that death sentences were executed in Syria for serious crimes such as murder. However, every execution had to be approved by the President. The Embassy had no reliable information about how frequently death sentences were executed as they were normally implemented without public control, but the local lawyer had claimed that it was very rare that death sentences were imposed at all by the Syrian courts today.

In response to the information provided by the Embassy, the applicants, on 4 March 2004, initially noted that the first applicant was wanted in Syria as a result of the judgment. They then observed that the local lawyer only had given his own opinion on the matter and what he considered likely to occur. However, there were no guarantees given that the case would be re-opened or the outcome changed. They also stated that it would be very difficult for the first applicant to find any witnesses now who could speak in favour of him and that, since the murdered man's family was very wealthy, they could bribe the prosecutor and witnesses as well as the judge. The applicants alleged that they had already obtained false documents which wrongly indicated that the murdered man had been married to the first applicant's sister. Thus, the murder was considered to be of the most serious kind. Furthermore, the fact that the first applicant was of Kurdish origin would also expose him to discrimination by the court and possibly a harsher sentence. Taking into consideration that the Syrian legal system was arbitrary and corrupt, the applicants argued that they had a well-founded fear that the first applicant would be executed if he was returned to Syria and the family would thereby be destroyed.

On 7 April 2004 the Aliens Appeals Board, by two votes to one, rejected the applicants' request for asylum. The majority considered that, based on the local lawyer's research, it was established that the case against the first applicant, if he returned to Syria, would be re-opened and that the entire trial would be re-heard, following which, if convicted, a sentence other than death would be imposed, as the case was “honour related”. Under these circumstances, the majority found that the applicants did not have a well-founded fear and were thus not in need of protection. The dissenting member of the Aliens Appeals Board considered that, having regard to all the facts of the case, the applicants did have a well-founded fear that the first applicant would be executed if returned to Syria and the family should therefore be granted residence permits in Sweden.

On 16 April 2004 the applicants' representative requested the Court to indicate to the Swedish Government under Rule 39 of the Rules of Court to suspend the applicants' expulsion. On the same day the President of the Fourth Section granted the request until the Chamber's meeting on 27 April 2004, at which time it was decided to prolong the interim measure until further notice.

As a result of the Court's indication under Rule 39 of the Rules of Court, the Migration Board, on 19 April 2004, decided to stay the expulsion of the applicants until further notice. This decision is still in force.

COMPLAINT

The applicants complained that, if expelled from Sweden to Syria, the first applicant would face a real risk of being arrested and executed contrary to Articles 2 and 3 of the Convention as the death sentence against him in Syria has gained legal force.

THE LAW

The applicants complained that their expulsion to Syria would constitute a violation of the first applicant's rights under Articles 2 and 3 of the Convention since there is a real risk that he would be arrested and executed upon return to Syria, thereby destroying the family. These provisions read as follows:

Article 2:

“1.  Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2.  Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

(a)  in defence of any person from unlawful violence;

(b)  in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c)  in action lawfully taken for the purpose of quelling a riot or insurrection.”

Article 3:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The applicants submitted that it was established that the first applicant's fear of being executed upon return to Syria was real since the judgment was authentic and had gained legal force. They stressed that the letter provided by the Swedish Embassy in Damascus and the research carried out by the local lawyer it had engaged were uncertain and not precise, using words such as “probable” and “likely” while at the same time acknowledging that the Syrian legal system was arbitrary and corrupt. Furthermore, it had also been acknowledged that there was no certain information as to how frequently the death penalty was implemented in that country since executions were carried out without public control. The first applicant further expressed strong doubts that he would at all survive an arrest and detention upon arrival in Syria. The fact that he had applied for asylum in a third country as well as being of Kurdish origin were both circumstances which would expose him to additional risks upon a forced return. Moreover, the first applicant contended that it would be very difficult for him to find witnesses and evidence to defend himself if his case were to be re-opened in Syria since it was now six years since the alleged murder had taken place.

The applicants also pointed to the fact that the Aliens Appeals Board had not been unanimous in its decision but that one of the three members had found that the first applicant's fear of being executed if returned to Syria was well-founded and that the applicants therefore should have been granted protection in Sweden.

In conclusion, the applicants maintained that the first applicant faced a substantial risk of being executed if returned to Syria in violation of Articles 2 and 3 of the Convention.

The respondent Government stated that they raised no objection to the application being declared admissible. They observed that Article 2 of the Convention did not prohibit capital punishment but that the protection against the death penalty was guaranteed in all circumstances by Article 1 of Protocol No. 13 to the Convention, a Protocol by which Sweden was bound and which came into effect on 1 July 2003. This provision reads as follows:

“The death penalty shall be abolished. No-one shall be condemned to such penalty or executed.”

Thus, the Government had no objection to the examination of the present case under both Article 3 of the Convention and Article 1 of Protocol No. 13 and they would proceed on this assumption.

They recognised that the human rights situation in Syria was still problematic, noting, inter alia, that the death penalty was prescribed for, among other crimes, murder. However, since the enforcement of capital punishment was never made public, it was difficult to determine whether executions took place. The Government further observed that the Syrian Constitution provided for an independent judiciary but that political connections and bribery sometimes influenced verdicts in regular courts. Defendants in criminal trials had the right to bail hearings and possible release from detention on their own recognizance. However, many criminal suspects were held in pre-trial detention for months. Defendants in criminal courts were moreover presumed innocent, they had the right to legal representation of their own choice and they were allowed to present evidence and to confront their accusers. Furthermore, verdicts could be appealed against to a provincial appeals court and ultimately to the Court of Cassation.

Based on the above, the Government considered that the circumstances in Syria could not in themselves suffice to establish that the forced return of the first applicant to that country would entail a violation of Article 3 of the Convention or Article 1 of Protocol No. 13. In the view of the Government, in order for there to be a violation of either Article, it had to be established that the first applicant was personally at risk of being subjected to treatment contrary to these provisions.

In this regard, and taking into consideration the information obtained by the Swedish Embassy in Syria and the local lawyer it had engaged, the Government referred to the conclusion of the Aliens Appeals Board that the first applicant could not be considered to have a well-founded fear of being sentenced to death or executed upon his return to Syria. Thus, neither the first applicant nor his family were therefore in need of protection. The Government stressed that this conclusion had been reached by the Aliens Appeals Board applying the relevant provisions in the Aliens Act which were in conformity with the relevant Convention guarantees.

Last, the Government observed that there were not as yet any established case-law of the Court regarding the assessment of the existence of a risk that an applicant will be exposed to a violation of Article 1 of Protocol No. 13 to the Convention. They therefore refrained from making an evaluation of their own concerning the issue of whether the applicants had sufficiently substantiated that their expulsion would constitute a violation of that Article and/or Article 3 of the Convention. Against this background the Government did not contest the admissibility of the present application.

The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Declares the application admissible, without prejudging the merits of the case.

Michael O'Boyle Nicolas Bratza 
 Registrar President

BADER AND OTHERS v. SWEDEN DECISION


BADER AND OTHERS v. SWEDEN DECISION