Risk of being sentenced to death
II. RELEVANT DOMESTIC LAW 28. 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. 29. 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. THE LAW I. ALLEGED VIOLATIONS OF ARTICLES 2 AND 3 OF THE CONVENTION 33. 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 34. 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. 35. 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. 36. 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 37. 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. 38. 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. 39. 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. 40. 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 41. 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). 42. 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 43. 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. 44. 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. 45. 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. 46. 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. 47. 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). 48. 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. 49. 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 50. 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.” 51. 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.
The Court considered that the first applicant had a justified and well-founded fear that the death sentence against him would be executed if he was forced to return to his home country. Since executions were carried out without any public scrutiny or accountability, the circumstances surrounding it would inevitably cause him considerable fear and anguish. As regards the criminal proceedings which had led to the death sentence, the Court found that, because of their summary nature and the total disregard of the rights of the defence, they had been a flagrant denial of a fair trial. The Court concluded that the death sentence imposed on the applicant following an unfair trial would cause him and his family additional fear and anguish as to their future if they were forced to return to Syria. Accordingly, the Court held that the applicants’ deportation to Syria, if implemented, would give rise to a violation of Articles 2 (right to life) and 3 (prohibition of inhuman or degrading treatment) of the Convention.