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SECOND
SECTION
CASE OF BADER AND KANBOR v. SWEDEN
(Application
no. 13284/04)
JUDGMENT
STRASBOURG
8
November 2005
FINAL
08/02/2006
In the case of Bader and Kanbor v. Sweden,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Mr J.-P.
Costa, President,
Mr I. Cabral Barreto,
Mr V.
Butkevych,
Mrs A. Mularoni,
Mrs E. Fura-Sandström,
Mrs D.
Jočienė,
Mr D. Popović, judges,
and Mrs
S. Dollé, Section Registrar,
Having
deliberated in private on 18 October 2005,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 13284/04) against the Kingdom
of Sweden lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by four Syrian nationals, Mr Kamal Bader Muhammad
Kurdi, Mrs Hamida Abdilhamid Mohammad Kanbor and their two minor
children (“the applicants”), on 16 April 2004.
- The
applicants, who had been granted legal aid, were represented by Mr K.
Larsson, a lawyer practising in Karlskrona. The Swedish Government
(“the Government”) were represented by their Agent, Ms E.
Jagander, of the Ministry of Foreign Affairs.
- The
applicants alleged that, if deported 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.
- The
application was allocated to the Fourth Section of the Court (Rule 52
§ 1 of the Rules of Court). Within that Section, the Chamber
that would consider the case (Article 27 § 1 of the Convention)
was constituted as provided in Rule 26 § 1.
- The
President of the Chamber and subsequently the Chamber decided, on 16
and 27 April 2004 respectively, to apply Rule 39, indicating to the
Government that it was desirable in the interests of the parties and
the proper conduct of the proceedings not to deport the applicants
pending the Court's decision.
- By
a decision of 26 October 2004, the Chamber declared the application
admissible.
- On
1 November 2004 the Court changed the composition of its Sections
(Rule 25 § 1). This case was assigned to the newly composed
Second Section (Rule 52 § 1).
- The
Government filed observations on the merits (Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1972, 1973, 1998 and 1999 respectively and
are currently in Sweden.
- They
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, a Sunnite
Muslim, and had lived with his family and worked in Beirut (Lebanon)
since 1995. He claimed that in December 1999 he and three of his
brothers had been arrested by the Syrian security police and
imprisoned in Aleppo (Syria) for nine months because the police
wanted information about another brother who had absconded while
performing military service in 1998. He further alleged that he had
been tortured and ill-treated in prison and had only been released
after being hospitalised as a result of the ill-treatment. After his
release, he returned to Beirut to stay with his family. Between 2001
and 2002 he was arrested four times by the security police,
questioned about his brother's whereabouts and beaten. However, on
each occasion, he was released after a few days. In 2002 the
applicants moved to Aleppo, where they 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 their arrival in
Sweden.
- On
27 June 2003 the Migration Board rejected the family's application
for asylum and their request for residence permits and ordered their
deportation to Syria. It noted, firstly, that the general situation
of Kurds in Syria was not such as to satisfy the requirements for
asylum since, inter alia, 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 they were sent back to Syria. It observed that, except for the
first occasion in 1999, the first applicant 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 connection, 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),
relying on the same grounds as they had before the Migration Board
and adding that Kurds were being persecuted and discriminated against
in Syria. They also claimed that they had paid 6,000 United
States dollars for false passports which they had subsequently
discarded. Furthermore, the second applicant had been admitted to an
emergency psychiatric clinic for three days in July 2003 owing to
panic attacks.
- On
16 September 2003 the Aliens Appeals Board dismissed the appeal on
the same grounds as the Migration Board, stating that the new reasons
advanced by the applicants did not alter the position. The
deportation order was also upheld.
- The
applicants subsequently lodged a new application with the Aliens
Appeals Board which was rejected on 27 November 2003.
- Further,
during the autumn of 2003, the District Court (tingsrätten)
of Blekinge convicted the first applicant of threatening behaviour
against his four-year-old daughter and a neighbour. It gave him a
suspended sentence and made an order for his deportation 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 suspended sentence but quashed the deportation
order as it did not consider that the offence in itself merited
deportation.
- On
account of the District Court's decision on deportation, the police
authorities had begun preparations to enforce it. In that connection,
the Swedish embassy in Damascus ascertained that the applicants had
left Damascus legally on 17 August 2002 using their own passports but
had in fact travelled via Cyprus, not Turkey.
- In
January 2004 the family lodged a new application for asylum to the
Aliens Appeals Board and requested a stay of execution of the
deportation order. They referred to a judgment that had been
delivered on 17 November 2003 by the Regional Court in Aleppo which
stated that the first applicant had been convicted, in absentia,
of complicity in a murder and sentenced to death pursuant to Article
535 § 1 of the Syrian Criminal Code.
- On
9 January 2004 the Aliens Appeals Board granted a stay of execution
of the deportation order against the applicants until further notice
and requested them to submit an original of the judgment and other
relevant documents in support of their application.
- On
26 January 2004 the applicants submitted to the Aliens Appeals Board
a certified copy of the judgment in which it was stated 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 too small a dowry, thereby dishonouring their
family. In November 1998 the first applicant's brother had shot the
brother-in-law, after planning the murder with the first applicant,
who had provided the weapon. The Syrian 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 1,000,000
Syrian pounds to the victim's family and were deprived of their civil
rights and all their assets were frozen. The first applicant was also
charged with unlawfully possessing a military firearm, a charge which
the Syrian court had instructed the military prosecutor to proceed
with. Lastly, the court went on to state: “[T]his judgment has
been delivered in the accused's absence. [It] can be reopened.”
It would appear 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
requiring the first applicant to present himself before the court
within ten days, failing which he would forfeit his civil rights and
the control of his assets. The first applicant claimed that he had
not been involved in the murder as he had been in Beirut at the
material time. He also explained that he had, in fact, spent nine
months in custody in 1999-2000 on suspicion of complicity in the
murder and had been released on bail on 9 September 2000. He insisted
that he had not mentioned this before because it concerned the
family's honour and his sister's humiliation. The applicant was
represented by a lawyer in Syria whose contact details had been
provided 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, whether it was possible to appeal or to have the case reopened.
They further enquired if a reprieve was possible and whether death
sentences were normally carried out in Syria.
- By
a letter dated 14 March 2004, the Swedish embassy in Syria informed
the Aliens Appeals Board that a local lawyer (förtroendeadvokat)
they had engaged had confirmed that the judgment was authentic. He
had also carried out research into the Syrian criminal law on
sentences for murder and manslaughter, the results of which were
attached to the embassy's letter.
- The
embassy provided the following information in their letter to the
Aliens Appeals Board. According to the local lawyer it was probable
(sannolikt) that the case would be retried in court once the
accused were located and it would then be very likely (troligt)
that new witnesses would be called and the entire case reheard.
Further, the fact that a case was “honour related” was
usually considered a mitigating factor leading to a lighter sentence.
The embassy said that the lawyer had also stated that it was not
unusual for the Syrian courts to impose the maximum sentence possible
when an accused failed to appear for trial after being summoned to do
so. It added that, according to their sources, it appeared that the
accused had to be present in person in order to obtain a retrial. In
this respect, the Syrian judicial system was marked by considerable
(betydande) arbitrariness and the death sentence was carried
out 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 enforced as
they were normally carried out without any public scrutiny or
accountability. However, the local lawyer had claimed that it was
very rare for the death sentence to be imposed at all by the Syrian
courts today.
- On
4 March 2004, in response to the information provided by the embassy,
the applicants initially noted that the first applicant was wanted in
Syria under the judgment. They then observed that the local lawyer
had only given his own opinion on the matter and on what he
considered was likely to happen. However, there were no guarantees
that the case would be reopened or that the outcome would be
different. They also stated that it would now be very difficult for
the first applicant to find any witnesses to testify on his behalf
and that, since the murdered man's family was very wealthy, they
would be able to bribe the prosecutor and witnesses and, for that
matter, the judge. The first applicant alleged that the murdered man
had not been his brother-in-law, contrary to what had been stated in
the Syrian judgment (see paragraph 19 above), but that the man's
family had relied on forged documents before the Syrian court,
stating that the first applicant's sister had been married to him.
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 to
a harsher sentence. The applicants argued that, in view of the fact
that the Syrian legal system was arbitrary and corrupt, they had a
well-founded fear that the first applicant would be executed if he
were returned to Syria and that 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, on the
basis of the local lawyer's research, that it had been established
that, if the first applicant returned to Syria, the case against him
would be reopened and he would receive a full retrial, at the end of
which, if convicted, he would be given a sentence other than death,
as the case was “honour related”. Under those
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
19 April 2004, following the Court's indication under Rule 39, the
Migration Board granted a stay of execution of the deportation order
until further notice. The stay is still in force.
II. RELEVANT DOMESTIC LAW
- The
basic provisions concerning the right of aliens to enter and remain
in Sweden are to be found in the Aliens Act (Utlänningslagen,
1989:529). An alien who is considered to be a refugee or otherwise in
need of protection is, with certain exceptions, entitled to a
residence permit in Sweden (chapter 3, section 4 of the Act). The
term “refugee” refers to an alien who is outside the
country of his or her nationality owing to a well-founded fear of
being persecuted for reasons of race, nationality, membership of a
particular social group, or religious or political opinion, and who
is unable or, owing to such fear, unwilling to avail him- or herself
of protection in that country. This applies irrespective of whether
or not persecution is at the hands of the authorities of the country,
if the authorities cannot be relied on to offer protection against
persecution by private individuals (chapter 3, section 2). By “an
alien otherwise in need of protection” (chapter 3, section 3)
is meant, inter alia, a person who has left the country of his
or her nationality because he or she has a well-founded fear of being
sentenced to death or corporal punishment or of being subjected to
torture or other inhuman or degrading treatment or punishment.
- In
addition, when it comes to enforcing a decision to refuse entry to or
to deport an alien, regard must be had to the risk of torture and
other inhuman or degrading treatment or punishment. According to a
special provision on bars to enforcement (chapter 8, section 1), an
alien must not be sent to a country where there are reasonable
grounds (skälig anledning) 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.
III. CAPITAL PUNISHMENT IN SYRIA
- According
to Article 535 of the Syrian Criminal Code, a person convicted of
intentionally killing another person will be sentenced to capital
punishment.
- In
its Concluding Observations on the third periodic report by Syria
under Article 40 of the International Covenant on Civil and Political
Rights (CCPR/CO/84/SYR, dated 9 August 2005), the United Nations
Human Rights Committee expressed its concern about the nature and
number of offences which carried the death penalty in Syria. It was
further “deeply concerned at the de facto reinstitution
of death sentences and executions in 2002” and noted that Syria
had submitted insufficient information relating to the numbers of
persons whose death sentences had been commuted, and the number of
persons awaiting execution.
- According
to Amnesty International (Country Reports 2005: Syria), the Syrian
authorities had, on 5 July 2004, announced that sixteen people had
been executed in 2002 and eleven in 2003. Moreover, on 17 October
2004, it was reported that two persons had been executed in Aleppo,
but no further details had been made public.
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLES 2 AND 3 OF THE
CONVENTION
- The
applicants complained that, if deported from
Sweden to Syria, the first applicant would face a real risk of being
arrested and executed, as the death sentence against him in Syria had
gained legal force. They relied on Articles 2 and 3 of the
Convention, the relevant parts of which provide:
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.
...”
Article 3
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. The parties' submissions
1. The applicants
- 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 enforceable. 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 imprecise, using words such as “probable”
and “likely” while at the same time acknowledging that
the Syrian judicial system was arbitrary and corrupt. Furthermore, it
had also been acknowledged that there was no reliable information on
the frequency with which the death penalty was implemented in that
country since executions were carried out without the public being
informed. The first applicant further expressed strong doubts about
his ability to survive arrest and detention upon his arrival in
Syria. The fact that he had applied for asylum in a third country and
was of Kurdish origin were both circumstances which would expose him
to additional risks upon a forcible repatriation. Moreover, the first
applicant contended that it would be very difficult for him to find
witnesses and evidence in his favour if his case were reopened in
Syria since it was now more than 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 should
therefore have been granted protection in Sweden.
- In
conclusion, the applicants maintained that the first applicant faced
a substantial risk of being executed if he were sent back to Syria,
in violation of Articles 2 and 3 of the Convention.
2. The Government
- The
Government 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. 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 that 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 details on
the enforcement of capital punishment were 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 the ordinary courts. Defendants in
criminal trials had the right to apply for bail and their release
from detention on their own recognisance. However, many criminal
suspects were held in pre-trial detention for months. Defendants in
criminal courts were, moreover, presumed innocent, had the right to
legal representation of their own choosing and were allowed to
present evidence and to cross-examine their accusers. Furthermore,
verdicts could be appealed against to a provincial appeal court and
ultimately to the Court of Cassation.
- On
the basis of the above, the Government considered that the
circumstances in Syria could not in themselves suffice to establish
that the forcible repatriation of the first applicant to that country
would entail a violation of Article 3 of the Convention or of Article
1 of Protocol No. 13. In the Government's view, 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 those provisions.
- In
that 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 was
in need of protection. The Government stressed that that conclusion
had been reached by the Aliens Appeals Board applying the relevant
provisions of the Aliens Act, which were in conformity with the
corresponding Convention guarantees.
B. The Court's assessment
1. The relevant principles
- The
Contracting States have the right, as a matter of well-established
international law and subject to their treaty obligations, including
the Convention, to control the entry, residence and deportation of
aliens. However, the deportation of an alien by a Contracting State
may give rise to an issue under Article 3, and hence engage the
responsibility of that State under the Convention, where substantial
grounds have been shown for believing that the person in question, if
deported, would face a real risk of being subjected to treatment
contrary to Article 3 in the receiving country. In these
circumstances, Article 3 implies the obligation not to deport the
person in question to that country (see, among other authorities,
H.L.R. v. France, judgment of 29 April 1997, Reports of
Judgments and Decisions 1997-III, p. 757, §§ 33-34).
- Moreover,
the Court has not in earlier cases excluded the possibility that a
Contracting State's responsibility might be engaged under Article 2
of the Convention or Article 1 of Protocol No. 6 where an alien is
deported to a country where he or she is seriously at risk of being
executed, as a result of the imposition of the death penalty or
otherwise (see among others, S.R. v. Sweden (dec.), no.
62806/00, 23 April 2002; Ismaili v. Germany (dec.), no.
58128/00, 15 March 2001; and Bahaddar v. the Netherlands,
judgment of 19 February 1998, Reports 1998-I, opinion of the
Commission, pp. 270-71, §§ 75-78).
In
Öcalan v. Turkey ([GC], no. 46221/99, ECHR 2005-IV), the
Grand Chamber of the Court noted that the territories encompassed by
the member States of the Council of Europe had become a zone free of
capital punishment and that it could be said that capital punishment
in peacetime, having regard, inter alia, to the fact that all
member States had signed Protocol No. 6 and only two (Russia and
Monaco) had yet to ratify it, had come to be regarded as an
unacceptable form of punishment which was no longer permissible under
Article 2 of the Convention (ibid., § 163; for a survey on the
Council of Europe's stance regarding capital punishment, see Öcalan,
§§ 58 and 59). However, the Grand Chamber considered that:
“For the time being, the fact that there are still
a large number of States who have yet to sign or ratify Protocol No.
13 may prevent the Court from finding that it is the established
practice of the Contracting States to regard the implementation of
the death penalty as inhuman and degrading treatment contrary to
Article 3 of the Convention, since no derogation may be made from
that provision, even in times of war.” (paragraph 165)
The
Grand Chamber abstained from reaching any firm conclusion as to
whether Article 2 of the Convention could be considered to have been
amended so as to prohibit the death penalty in all circumstances
(ibid., § 165). At the same time, it considered that it
would be contrary to the Convention, even if Article 2 were to be
construed as still permitting the death penalty, to implement a death
sentence following an unfair trial as an arbitrary deprivation of
life was prohibited (ibid., § 166):
“... It also follows from the requirement in
Article 2 § 1 that the deprivation of life be pursuant to the
'execution of a sentence of a court', ... and that the most rigorous
standards of fairness be observed in the criminal proceedings both at
first instance and on appeal.”
Moreover,
to impose a death sentence on a person after an unfair trial would
generate, in circumstances where there exists a real possibility that
the sentence will be enforced, a significant degree of human anguish
and fear, bringing the treatment within the scope of Article 3 of the
Convention (ibid., §§ 168-69).
In
this connection, it should also be noted that the Court has
acknowledged that an issue might exceptionally be raised under
Article 6 of the Convention by an extradition decision in
circumstances where the fugitive has suffered or risks suffering a
flagrant denial of a fair trial in the requesting country (see
Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and
46951/99, § 88, ECHR 2005-I, and Soering v. the United
Kingdom, judgment of 7 July 1989, Series A no. 161, p. 45, §
113).
It
follows that an issue may arise under Articles 2 and 3 of the
Convention if a Contracting State deports an alien who has suffered
or risks suffering a flagrant denial of a fair trial in the receiving
State, the outcome of which was or is likely to be the death penalty.
2. Application of the above principles to the present
case
- The Court notes from the outset that the applicants
have not pursued under the Convention their initial submission before
the Swedish immigration authorities that the first applicant had been
exposed to torture before leaving Syria and risked being subjected to
such treatment were he to be sent back there. The Court will not
examine that matter of its own motion. It will accordingly limit its
examination to the applicants' complaint that there is a real risk
that the first applicant will be executed if he is deported to Syria,
since he has been sentenced to death under an enforceable judgment.
- In
this regard, the Court attaches particular weight to the fact that,
according to a judgment of 17 November 2003 by the Regional Court in
Aleppo, the first applicant was convicted, in absentia, of
complicity in a murder and sentenced to death under Article 535 §
1 of the Syrian Criminal Code. The authenticity of the judgment has
been confirmed by the Swedish embassy in Syria. The Court further
stresses that, although it might not necessarily be a common
occurrence, the death sentence for serious crimes is enforced in
Syria.
Moreover,
it is stated in the judgment that the first applicant may apply for a
reopening of his case and for a retrial. However, this would
necessarily entail his surrendering to the Syrian authorities upon
his return and he would most certainly be detained while awaiting a
decision by the court on whether or not to reopen his case.
- The
Court agrees with the applicants that the information in the report
from the Swedish embassy in Syria is vague and imprecise as to
whether the case would be reopened and as to the likelihood, in the
event of a conviction at a retrial, of the first applicant escaping
capital punishment. The report contained only assumptions and no
definite answers as to what would happen if the applicants were
deported to Syria. In this respect, the Court finds it surprising
that the first applicant's defence lawyer in Syria does not even seem
to have been contacted by the Swedish embassy during their
investigation into the case, even though the applicants had furnished
the Swedish authorities with his name and address and he could, in
all probability, have provided useful information about the case and
the proceedings before the Syrian court. More importantly, the Court
notes that the Swedish Government have obtained no guarantee from the
Syrian authorities that the first applicant's case will be reopened
and that the public prosecutor will not request the death penalty at
any retrial (see, among others, Mamatkulov and Askarov, cited
above, § 76; Soering, cited above, pp. 38-39, §§
97-98; and Nivette v. France (dec.), no. 44190/98, ECHR
2001 VII). In these circumstances, the Swedish authorities would
be putting the first applicant at serious risk by sending him back to
Syria and into the hands of the Syrian authorities, without any
assurance that he will receive a new trial and that the death penalty
will not be sought or imposed.
- Thus,
the Court considers that the first applicant has a justified and
well-founded fear that the death sentence against him will be
executed if he is forced to return to his home country. Moreover,
since executions are carried out without any public scrutiny or
accountability, the circumstances surrounding his execution would
inevitably cause the first applicant considerable fear and anguish
while he and the other applicants would all face intolerable
uncertainty about when, where and how the execution would be carried
out.
- Furthermore,
in the instant case, it transpires from the Syrian judgment that no
oral evidence was taken at the hearing, that all the evidence
examined was submitted by the prosecutor and that neither the accused
nor even his defence lawyer was present at the hearing. The Court
finds that, because of their summary nature and the total disregard
of the rights of the defence, the proceedings must be regarded as a
flagrant denial of a fair trial (see, mutatis mutandis,
Mamatkulov and Askarov, cited above, § 88). Naturally,
this must give rise to a significant degree of added uncertainty and
distress for the applicants as to the outcome of any retrial in
Syria.
In
the light of the above, the Court considers that the death sentence
imposed on the first applicant following an unfair trial would
inevitably cause the applicants additional fear and anguish as to
their future if they were forced to return to Syria as there exists a
real possibility that the sentence will be enforced in that country
(see Öcalan, cited above, § 169).
- Thus,
having regard to all the circumstances of the case, the Court
considers that there are substantial grounds for believing that the
first applicant would be exposed to a real risk of being executed and
subjected to treatment contrary to Articles 2 and 3 if deported to
his home country. Accordingly, the Court finds that the deportation
of the applicants to Syria, if implemented, would give rise to
violations of Articles 2 and 3 of the Convention.
- Having
reached this conclusion, the Court does not find it necessary to
consider the matter under Protocol No. 13 to the Convention, as the
Government suggested it should.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
- After
declaring the application admissible, the Court requested the
applicants to submit their claims for just satisfaction. No such
claims have been received. Accordingly no award by the Court is
required.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Holds that the applicants' deportation to Syria would amount
to a violation of Articles 2 and 3 of the Convention.
Done in English, and notified in writing on 8 November 2005, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
S. Dollé J.-P. Costa Registrar President
In
accordance with Article 45 § 2 of the Convention and Rule 74 §
2 of the Rules of Court, the concurring opinion of Mr Cabral Barreto
is annexed to this judgment.
J.-P.C.
S.D.
CONCURRING OPINION OF JUDGE CABRAL BARRETO
(Translation)
I
joined the majority in finding a violation of Article 2 of the
Convention as I had no other means of expressing my opinion that
there had been a violation not of that provision, but of Article 1 of
Protocol No. 13.
Allow
me to explain.
In my
opinion, this is the first time the Court has plainly stated that the
extradition or deportation of a person to a country where he or she
risks an unfair trial followed by capital punishment will violate
Article 2 of the Convention.
In
Öcalan v. Turkey ([GC], no. 46221/99, ECHR
2005-IV), the Court (sitting as a Grand Chamber) examined this issue
in depth.
In
paragraph 166 of its judgment, the Grand Chamber endorsed the
following statement by the Section:
“... Even if the death penalty were still
permissible under Article 2, the Court considers that an arbitrary
deprivation of life pursuant to capital punishment is prohibited.
This flows from the requirement that '[e]veryone's right to life
shall be protected by law'. An arbitrary act cannot be lawful under
the Convention ...”
However,
despite noting that “[i]t follows from the above construction
of Article 2 that the implementation of the death penalty in respect
of a person who has not had a fair trial would not be permissible”,
the Grand Chamber declined to find a violation of Article 2,
preferring instead to examine the issue under Article 3.
It
went on to say:
“167. The above conclusion concerning
the interpretation of Article 2 where there has been an unfair trial
must inform the opinion of the Court when it considers under Article
3 the question of the imposition of the death penalty in such
circumstances.
168. As the Court has previously noted ...,
the manner in which the death penalty is imposed or executed, the
personal circumstances of the condemned person and a
disproportionality to the gravity of the crime committed, as well as
the conditions of detention awaiting execution, are examples of
factors capable of bringing the treatment or punishment received by
the condemned person within the proscription under Article 3 (see
Soering, cited above, p. 41, § 104).
169. In the Court's view, to impose a death
sentence on a person after an unfair trial is to subject that person
wrongfully to the fear that he will be executed. The fear and
uncertainty as to the future generated by a sentence of death, in
circumstances where there exists a real possibility that the sentence
will be enforced, must give rise to a significant degree of human
anguish. Such anguish cannot be dissociated from the unfairness of
the proceedings underlying the sentence which, given that human life
is at stake, becomes unlawful under the Convention.”
The Court said in conclusion in paragraph 175:
“Consequently, the Court concludes that the
imposition of the death sentence on the applicant following an unfair
trial by a court whose independence and impartiality were open to
doubt amounted to inhuman treatment in violation of Article 3 ...”
In
the operative provisions of that judgment, the Grand Chamber confined
itself to holding that there had been a violation of Article 3 of the
Convention as regards the imposition of the death penalty following
an unfair trial.
Notwithstanding
the conclusions in Öcalan, it seems to me (and it is for
this reason that I voted with the majority) that the Section is
entitled to go a little further on the basis of the Grand Chamber's
reasoning with respect to Protocols Nos. 6 and 13.
After
noting that Protocol No. 6 could be taken as already signalling “the
agreement of the Contracting States to abrogate, or at the very least
to modify, the second sentence of Article 2 § 1” (§
163), the Grand Chamber accepted that Protocol No. 13 could be seen
as “confirmation of the abolitionist trend in the practice of
the Contracting States. It does not necessarily run counter to the
view that Article 2 has been amended in so far as it permits the
death penalty in times of peace” (§ 164).
The
States that have already ratified Protocol No. 13 wished to replace
the obligation arising under Article 2 of the Convention by a
stronger one, namely an obligation to abolish the death penalty in
all circumstances.
The
second sentence of Article 2 has, as it were, been abrogated, or at
least rendered redundant, by the entry into force of Protocol No. 13.
The
States that have ratified Protocol No. 13 have undertaken not only
never to implement capital punishment but also not to put anyone at
risk of incurring that penalty.
Consequently,
there is no need to examine the trial or the situation of the person
sentenced to death prior to the sentence being carried out because
there will always be a violation of Article 1 of Protocol No. 13.
Sweden
has already ratified Protocol No. 13.
I
would therefore prefer to find that, in the instant case, the
applicants' expulsion to Syria would entail a violation of Article 1
of Protocol No. 13, in addition to a violation of Article 3 of the
Convention.
