Failure to disclose real nationality while awaiting deportation. Abusive litigation.
JUDGMENT
Bencheref v. Sweden 11.01.2018 (no. 9602/15)
SUMMARY
Application for asylum and residence permit. Arrested for serious accusations (attempted rape, etc.), he was found guilty and his deportation was decided. Failure to disclose real citizenship (initially he said he was Moroccan and then declared Algerian), delays deportation procedures. Rejection of an appeal for misuse of the right of appeal in accordance with Article 35 (3) (a) and 4 of the European Convention.
PROVISIONS
Article 5
Article 35 par. 3 (α) and 4
PRINCIPAL FACTS
The applicant, Kader Bencheref, was born in 1985 and lived in Växjö, Sweden, until he was expelled to Algeria in 2017.
Mr Bencheref applied for asylum and a residence permit in Sweden in 2006, stating that he was of Moroccan origin and complaining about the conditions in that country. He was arrested on various charges later the same year, including attempted rape and assault, and was later found guilty. After a 2007 court of appeal decision, he was sentenced to three years in prison, expulsion and a 10-year ban on his return.
After his conviction, the migration authorities struck out his asylum application and in September 2008 he was placed in detention pending his expulsion to Morocco. He was subsequently held in detention pending expulsion, apart from a short period in psychiatric care in 2010 and in prison in 2014 after he had been found guilty of molesting detention centre officials and of damaging property. He made several unsuccessful appeals against the detention order.
In October 2016 he informed the Swedish authorities that he was of Algerian rather than Moroccan origin, leading to the enforcement of the expulsion order in February 2017 and his departure for Algeria. Mr Bencheref maintained his application to the Court after his expulsion.
THE DECISION OF THE COURT
Article 5
The Court noted that when Mr Bencheref had applied for asylum in 2006 he had stated that he was Moroccan. He had maintained that stance throughout the expulsion proceedings and had not disclosed the information about being Algerian until October 2016, which had led to his expulsion in February 2017.
The Court observed that the question of Mr Bencheref’s nationality had had a real impact on the length of the proceedings for his expulsion: Sweden had been dealing with Morocco, which had refused to accept Mr Bencheref, and it was not until his Algerian nationality had been revealed that the order could be enforced.
Mr Bencheref had also stated in his application to the Court that he was Moroccan. He had not given any explanation for that claim or why he had not revealed his true nationality earlier. In the Court’s view, the only reason for his behaviour was that he had intended to deceive the Court as to a core element of his case.
The Court concluded that the application had to be rejected as an abuse of the right of application under Article 35 §§ 3 (a) and 4 of the European Convention(echrcaselaw.com editing).
