Exclusion, removal and the risk of torture. The 2001 expulsion of two Egyptian asylum seekers from Sweden in the light of international law.

Abstract: Ahmed Agiza and Muhammed El Zary (hereinafter referred to as Agiza and El Zary) are two Egyptian nationals that were expelled from Sweden in December 2001. The decision was taken by the Swedish government. They had in 1999 and 2000 separately, applied for asylum in Sweden since they claimed a fear of serious human rights violations in Egypt based on their political opinion. The Swedish Migration Board tried their applications, but decided to refer the matter to the Swedish government, since information was given to them by the Swedish Security Police about Agiza's and El Zary's suspected involvement in terrorist activity. On basis of the evidence given by the Swedish Security Police, the Swedish government found that there were serious reasons for considering that Agiza and El Zary had committed terrorist acts and therefore should be excluded under article 1.F of the Convention Relating to the Status of Refugees. After the exclusion decision was taken, the Swedish government also decided to return Agiza and El Zary back to Egypt. The government did, however, admit that the two men could face persecution in Egypt, so to assure their safety, the Swedish government requested and received a guarantee from the Egyptian government. With reference to this guarantee, the Swedish government claimed that the expulsion decision was in accordance with the international human rights law. The decision by the Swedish government first to exclude Agiza and El Zary from refugee status and second to return them back to Egypt, gives rise to issues under international law. These areas concern mainly refugee law and international human rights law in general. The aim of the thesis is to analyze these areas of law and how they apply on the expulsion decision. The specific questions that is looked into under refugee law are what standard of proof must be applied in order to exclude a person from refugee status and what individual responsibility must be in question for connecting a suspect to the committed crime. Concerning the issues of international human rights law in general, the compliance of the expulsion decision as such to international obligations is analyzed as well as the legal significance of the guarantee given in the case. The crimes Agiza and El Zary were suspected of having committed concerned the bombing of the Egyptian Embassy in Islamabad, Pakistan, in 1995 and the explosion of a bus full of tourists in Luxor, Egypt in 1997. The Swedish government considered these acts as terrorist acts and therefore concluded that they fell under the crimes enumerated under the exclusion clause of the Convention Relating to the Status of Refugees. However, the Swedish government made no referral to what specific excludable crime that was in question. Considering the classified nature of the evidence used, an entire assessment of the applicable crime is difficult. Still, it is of great importance that the Swedish government applied the standard of proof relevant in exclusion cases, i.e. that there are serious reasons for considering that Agiza and El Zary had committed excludable acts. However, it must also be assured that Agiza and El Zary separately could be found individually responsible for the excludable crimes in question. They must both have been personally involved in the crime, be it through ordering its commission or in fact committing the crime, and also fulfil the mental element by having known or ought to have known that they were part of the commission of an excludable crime and without taking any steps to prevent or repress the commission of the crime. Since the deliberations of the Swedish government and the evidence used to exclude Agiza and El Zary are classified, it is again difficult to determine if the required standard of proof was reached and sufficient individual responsibility was determined. However, it is still of great importance to point out the legal obligations of Sweden in this regard, and still hope, that they were sufficiently applied. After the Swedish government excluded Agiza and El Zary from refugee status, the government did not find any other reason for letting them stay in Sweden. The government therefore decided to remove Agiza and El Zary back to Egypt. In this regard, Sweden has obligations under international human rights law not to expel a person to a country where there is a real risk that s/he would be subjected to torture or inhuman or degrading treatment or punishment. These rights of the individual are protected under the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as the ECHR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (hereinafter referred to as the CAT). In a provision of the CAT and as a principle evolved through the case law of article 3 ECHR, contracting states have an obligation not to expel a person to a country where there are substantial grounds for believing that s/he would face torture or inhuman or degrading treatment or punishment in the receiving country. Concerning the provision of the CAT, expulsion is only prohibited if the feared ill-treatment in the receiving country amounts to torture according to article 1 CAT. The question therefore arises if the Swedish government violated its international obligations by expelling the two men to Egypt. Decisive in the decision of the government was the guarantee given by the Egyptian government. However the effectiveness of the guarantee can be questioned. The practice of torture and ill-treatment in Egypt is a consisting problem. Especially is this the case in the custodies of the State Security Intelligence, where it was feared that Agiza and El Zary would end up upon return. Amnesty International has pointed out this practice of torture and further has the UN Committee Against Torture in its concluding observations of Egypt's fourth state report, concluded that the measures taken by the Egyptian government to try to prevent the torture and the ill-treatment has been insufficient. Also, in the jurisprudence of the European Court of Human Rights, it is stated that a guarantee, such as the one given in the case of Agiza and El Zary, is inadequate if the body giving the guarantee cannot effectively control the perpetrator of the ill-treatment. In the case of Agiza and El Zary, it can therefore be argued that the Egyptian government had no sufficient control over the perpetrators of the ill-treatment why the guarantee should not have been relied upon. Again turning to the reports of Amnesty International and UN bodies it can also be stated that there were substantial grounds for believing that Agiza and El Zary would face torture or inhuman or degrading treatment or punishment if returned to Egypt. Therefore, since the guarantee could be considered as inadequate and the requirements under article 3 CAT and article 3 ECHR could be considered as fulfilled, it can be argued that Sweden violated its international obligations under these conventions when they expelled Agiza and El Zary to Egypt. When an individual has a claim that his/her rights have been violated, s/he has the right to an effective remedy. This right is protected under article 13 of the ECHR. When it comes to providing an applicant with an effective remedy when claims have been raised of violations of article 3 ECHR, the demands are fairly high on the remedy that shall be available. In the jurisprudence of the European Court of Human Rights, it is stated that there must be an impartial body that can independently scrutinize the case and again examine it to see if there is a real risk of treatment contrary to the article if expulsion was to take place. In the case of Agiza and El Zary the Swedish government took the decision of expulsion and there was no room for appeal either to a national or international body. Also the government as such had interests of its own in the decision, why they cannot be considered as impartial. Referring to the absolute nature of the prohibition under article 3 ECHR, it therefore can be argued that the remedy given to Agiza and El Zary was not efficient enough and hence Sweden violated article 13 of the ECHR. In conclusion, it can be stated that due to the classified information, difficulties arise in assessing the evidence and the procedure preceding the exclusion decision. However, it is of outmost importance that the Swedish government found both Agiza and El Zary individually criminal responsible for the attacks in Islamabad, Pakistan, and Luxor, Egypt, and that it was determined that these crimes fall under the exclusion clause of the Convention Relating to the Status of Refugees. It is also important that the applicable standard of proof was reached, i.e. that there were serious reasons for considering that they have committed excludable crimes. Further since it cannot be ruled out that the guarantee provided inadequate protection and that there was a real risk of ill-treatment contrary to CAT and ECHR, it can be argued that the expulsion decision was in violation of Sweden's obligations under international human rights law. Finally it can be argued that Sweden also violated its obligation of providing Agiza and El Zary with an effective remedy according to article 13 of the ECHR.