Last Updated: Friday, 26 December 2014, 13:50 GMT

Abdulmassih Bulus v. Sweden

Publisher Council of Europe: European Commission on Human Rights
Publication Date 8 December 1984
Citation / Document Symbol Appl. No. 9330/81
Cite as Abdulmassih Bulus v. Sweden, Appl. No. 9330/81, Council of Europe: European Commission on Human Rights, 8 December 1984, available at: http://www.refworld.org/docid/3ae6b68814.html [accessed 27 December 2014]
DisclaimerThis is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.
 

Application of Abdulmassih BULUS against SWEDEN

INTRODUCTION

1. This report relates to Application No. 9330/81 lodged against Sweden by Abdulmassih, Jan and Ibrahim Bulus on 13 April 1981 under Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

The applicants were represented by Mr Kjell Jönsson, a lawyer practising in Stockholm, who was assisted by Mr Göran Melander, professor at the University of Lund.

The Government were represented by their Agent, Ambassador Hans Corell, Ministry for Foreign Affairs, and as Advisors, Mr Gerhard Wikrén, Under Secretary, Ministry of Labour, Mr Jan Flod, Assistant Under Secretary, Ministry of Labour, Mr Ulf Norström, Assistant Under Secretary, Ministry for Foreign Affairs and Mr Staffan Duhs,

Counsellor, Ministry for Foreign Affairs.

2. On 19 January 1984 the European Comission of Human Rights declared admissible the complaints of Abdulmassih Bulus and decided to strike off its list the rest of the application.[1]* The Commission then proceeded to carry out its task under Article 28 of the Convention which provides as follows:

"In the event of the Commission accepting a petition referred to it:

(a)it shall, with a view to ascertaining the facts, undertake together with the representatives of the parties an examination of the petition and, if need be, an investigation, for the effective conduct of which the States concerned shall furnish all necessary facilities, after an exchange of views with the Commission;

(b)it shall place itself at the disposal of the parties concerned with a view to securing a friendly settlement of the matter on the basis of respect for Human Rights as defined in this Convention."

3. The Commission found that the parties had reached a friendly settlement of the case and on 8 December 1984 it adopted this Report which, in accordance with Article 30 of the Convention, is confined to a brief statement of the facts of the solution reached.

The following members of the Commission were present when the Report was adopted:

 

MM.

C.

A. NØRGAARD, President

 

G.

SPERDUTI

 

J.

A. FROWEIN

 

E.

BUSUTTIL

 

G.

JORUNDSSON

 

G.

TENEKIDES

 

S.

TRECHSEL

 

B.

KIERNAN

 

M.

MELCHIOR

 

J.

A. CARRILLO

 

A.

S.GOZUBUYUK

 

J.

C.SOYER

 

H.

G. SCHERMERS

 

PART I:Statement of Facts

4. The applicant, Abdulmassih Bulus, born in 1969 is a citizen of the Arab Republic of Syria. He resides at Södertälje in Sweden. Originally, the application was submitted also on behalf of Abdulmassih's brothers Jan Bulus, born in 1961, and Ibrahim Bulus, born in 1960.

5. The three brothers arrived in Sweden on 4 October 1979 together with their mother, born in 1938, and their sister, born in 1967. They arrived from the Lebanon, their country of residence since 1970.

The family applied for residence permits in Sweden. This application was refused, first by the Immigration Authority (statens invandrarverk), and then upon appeal by the Government on 10 July 1980. The decision to refuse the application also included a decision to deport the family. The reason for this decision being that the family was staying in Sweden without having a residence permit or any other permit which would allow them to remain in the country. The legal basis for the decision was Section 22 of the 1954 Aliens Act (utlänningslagen).

6. On 21 October 1980 the Police Board (polisstyrelsen) of Södertälje, which was the authority responsible for the enforcement of the expulsion orders, decided to take the family into custody. In order to avoid the enforcement of the expulsion orders the family took refuge in a monastery outside Uppsala. The applicant's mother, who had psychiatric problems of a depressive nature, abandoned her children in the monastery and went into hiding somewhere in Sweden.

7. On 24 February 1981 the police authorities of Uppsala apprehended Abdulmassih Bulus at the monastery. He was taken into custody and brought to the police authorities at Södertälje. He was released on the following day with an obligation to report to the police authorities each week day.

8. On 2 March 1981 the applicant's lawyer applied to the Aliens Police of Södertälje requesting the non-enforcement of the expulsion orders. The application was supported by medical certificates. On 3 April 1981 the Södertälje police rejected the applications concerning the three brothers and decided to enforce the expulsion orders on 15 April 1981.

9. In order to secure the enforcement of this decision the police decided to take the applicants into custody on 6 April 1981. They were detained in a prison, although in a half-open section, called the "Lake Villa" (Sjöstugan).

Following further medical investigations Abdulmassih was released on 10 April 1981 with an obligation to report daily to the police authorities.

10. On 14 April 1981 the applicant's lawyer made a new application to the police authorities requesting that the cases be referred to the Immigration Authority.

In the morning of 15 April 1981, the police officer in charge decided not to change the decisions to expel Jan and Ibrahim Bulus to Syria, and they were sent there the same day. Abdulmassih Bulus, However, went into hiding.

11. Subsequently the applicant's lawyer approached the Police Board of Södertälje in order to have the decision to expel Abdulmassih Bulus reconsidered.

12. By letter of 15 July 1982 the Police Board informed Abdulmassih Bulus that the expulsion decision of 10 July 1980 of the Government could not be enforced any longer as more than two years had elapsed. Abdulmassih was informed that he was staying in Sweden without the necessary permits and that he was accordingly invited to apply for such permits.

13. On 27 September 1982, following applications to that effect, the Immigration Authority granted Abdulmassih, his mother and his sister a permit to stay and to work in Sweden for one year. These permits have subsequently been prolonged and Abdulmassih has now a permit to stay in Sweden up to the date on which he is 16 years of age.

14. Before the Commission Abdulmassih Bulus complained that he had been subjected to inhuman treatment by the Swedish authorities in breach of Article 3 of the Convention, and that his family life had been disrupted in breach of Article 8. He also complained that he has had no effective remedy under Swedish law for these alleged violations of the Convention and that accordingly Article 13 had also been violated.

PART II:Solution reached

15. Following its decision on the admissibility of the application, the Commission placed itself at the disposal of the parties with a view to securing a friendly settlement in accordance with Article 28 (b) of the Convention and invited the parties to submit any proposals they wished to make.

Following extensive written submissions of the parties as regards the possibility of securing a friendly settlement, a meeting took place in Stockholm on 21 to 22 November 1984 with a view to discussing the question of securing a friendly settlement. The Commission was represented by its Secretary and Mr Erik Fribergh, a member of the Secretariat. They first met the Agent of the Swedish Government, Ambassador Hans Corell, and Mr Ulf Norström and Mr Staffan Duhs of the Ministry for Foreign Affairs. They then met the representative of the applicant, Mr Kjell Jönsson, and then again the representatives of the Government. Following these separate discussions the parties agreed on the terms of a friendly settlement.

16. By a letter of 29 November 1984 the Agent of the Government confirmed the agreement submitting the following declaration of the Government:

"In view of the Commission's decision to declare Application No 9330/81 admissible insofar as it concerns Abdulmassih Bulus, the Government are prepared to make the following offer in order to terminate these proceedings:

1. On 6 April 1984 the two brothers, Jan and Ibrahim Bulus were granted visas as well as residence and work permits for immigration to Sweden. These permits are valid until 5 April 1985. As regards Ibrahim Bulus these permits will be prolonged until 7 October 1985. As regards Jan Bulus they will be prolonged until 5 April 1989. The travel expenses for the brothers (economy class air travel for single journey to Stockholm) will be paid by the Government.

2. The Government will make to the applicant an ex gratia payment of 15,000 Swedish Crowns and pay his legal costs in the proceedings before the Commission in the amount of 30,000 Crowns.

3. As regards the question of a remedy on the enforcement stage of an expulsion order, the Government have appointed a Commissioner to deal with this matter. The directives to the Commissioner, issued by the Government on 18 October 1984 (Dir. 1984: 39), state that the Commissioner shall analyse closely such demands for changes of the regulations which may follow from the European Convention on Human Rights or which may otherwise be called for. In this context he should have regard to such regulations as may exist in other States which are parties to the Convention.

Furthermore, he is to propose such new rules for which the analysis may give cause. The proposals should be presented during the year of 1985.

The Government will then, on the basis of the investigations made and if possible before the end of 1985. Propose such amendments of the rules concerning the enforcement of expulsion orders that make these provisions fully comply with Article 13 of the Convention."

17. In his letter of 30 November 1984 the applicant's representative, Mr Kjell Jönsson, made the following declaration on behalf of Abdulmassih Bulus:

"With reference to Application No. 9330/81 pending before the European Commission of Human Rights in Strasbourg, and in view of the offer made by the Swedish Government in their letter of 29 November 1984, I hereby accept the offer and declare the Application No. 9330/81 to be settled.

This declaration is being made in view of the settlement within the meaning of Article 28 (b) of the European Convention on Human Rights which has been reached in co-operation with the European Commission of Human Rights in the proceedings concerning this application."

18. The Commission, at its session on 8 December 1984, noted that the parties had reached agreement regarding the terms of a settlement. The Commission further found, having regard to Article 28 (b) of the Convention, that a friendly settlement has been secured on the basis of respect for Human Rights as defined in the Convention.

For these reasons the Commission adopted this Report.

 

Secretary to the Commission

President of the Commission

(H. C. KRUGER)

(C. A. NORGAARD)

DECISION OF THE COMMISSION

AS TO THE ADMISSIBILITY

The European Commission of Human Rights sitting in private on 19 January 1984, the following members being present:

 

MM.

C.

A. NØRGAARD, president

 

G.

SPERDUTI

 

J.

E. S. FAWCETT

 

E.

BUSUTTIL

 

L.

KELLBERG

 

G.

JORUNDSSON

 

G.

TENEKIDES

 

S.

TRECHSEL

 

B.

KIERNAN

 

M.

MELCHIOR

 

J.

SAMPAIO

 

J.

A. CARRILLO

 

A.

S. GOZUBUYUK

 

A.

WELTZEL

 

H.

G. SCHEREMRS

Mr.

H.

C. KRUGER, Secretary to the Commission

 

Having regard to Art. 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 10 April 1981 by Abdulmassih, Jan and Ibrahim Bulus against Sweden and registered on 13 April 1981 under file No. 9330./81;

Having regard to:

-the first report of December 1981 provided for by Rule 40 of the Commission's Rules of Procedure;

-the Commission's decision on 17 December 1981 to bring the application as far as it concerns Abdulmassih Bulus to the notice of the respondent Government and invite them to submit written observations on its admissibility and merits, and the decision under Rule 36 of the Rules of Procedure to indicate to the Government that it was desirable in the interest of the parties and the proper conduct of the proceedings that the applicant Abdulmassih Bulus should not be expelled until the Commission had had the opportunity of examining the application in the light of the parties' observations;

-the observations submitted by the respondent Government on 5 February 1982 and the observations in reply submitted by the applicants on 29 March 1982;

-the second report of April 1982 provided for by Rule 40 of the Rules of Procedure;

-the Commission's decision on 8 May 1982 to adjourn the examination of the application in order to obtain clarification from the Government as to their intentions regarding the expulsion of Abdulmassih;

-the Commission's decision on 13 May 1982, following the Secretary's report on the mission to Stockholm of a member of the Commission's Secretariat, to adjourn the examination of the application and to maintain its indication under Rule 36;

-the third report of July 1982 provided for by Rule 40 of the Rules of Procedure;

-the Commission's decision on 14 July 1982 to invite the parties to a hearing on the admissibility and merits of the application regarding Abdulmassih Bulus (Arts. 3, 8 and 13).

-the President's decision on 10 September 1982 to postpone the hearing;

-the applicant lawyer's information on 1 October 1982 that Abdulmassih Bulus, his mother and his sister had been granted a permit to stay and to work in Sweden for one year;

-the fourth report of October 1982 provided for by Rule 40 of the Rules procedure;

-the Commission's decision on 14 October 1982 to invite Abdulmassih Bulus to inform the Commission to what extent he wished to pursue his application in the light of the fact that he had been granted a permit to stay in Sweden, and the Commission's decision to lift its indication under Rule 36 of its Rules of Procedure;

-the applicant's information of 26 November 1982 that he wished to pursue his complaints that he had been subjected to treatment contrary to Art. 3 and that he had had no effective remedy for that complaint as required by Art. 13;

-the fifth report of March 1983 provided for by rule 40 of the Rules of Procedure;

-the Commission's decision of 10 March 1983 to invite the Government to submit written observations under Art. 3 and 13. As regards Art. 3 the Government were invited to reply to the question as to whether the situation which was created by the Government's decision to deport Abdulmassih Bulus and the conditions under which he found himself up to the granting of the permit to stay in Sweden amounted to treatment contrary to Art.3;

-the Government's observations of 6 May 1983 and the applicant's observations in reply of 13 June 1983;

-the sixth report of September 1983 provided for by Rule 40 of the Rules of Procedure;

-the Commission's decision of 13 October 1983 to invite the parties to an oral hearing on the admissibility and merits of the application regarding Abdulmassih Bulus, on the issues under Arts. 3, 8 and 13;

-the parties submissions at the hearing on 19 January 1984;

Having deliberated;

Decides as follows;

THE FACTS

The facts of the case may be summarised as follows:

The applicants are three brothers, Abdulmassih Bulus born in 1969, Jan Bulus born in 1961 and Ibrahim Bulus born in 1960. They are all citizens of the Arab Republic of Syria. They are represented before the Commission by Mr Kjell Jönsson, a lawyer practising in Stockholm.

The applicants arrived in Sweden on 4 October 1979 together with their mother Ferida Chamoun, born in 1938, and their sister Janet Bulus born in 1967. Ferida Chamoun has two brothers and one sister who are residents in Sweden.

Some months before their arrival the father, Mousa Bulus was reported missing. The family received a message that he had probably been killed in fightings reported. However, no full confirmation of his destiny was received.

The Bulus-Chamoun family applied for residence permits in Sweden. The Immigration Authority (Statens invandrarverk) refused the applications by decisions of 10 March 1980. The family's appeals to the Government were rejected on 10 July 1980.

The ground for the decision to deport the family was the fact that they were in Sweden without having a residence permit or any other permit which would allow them to remain in the country. The legal basis for the decision was Section 22 of the 1954 Aliens Act (utlänningslagen), which reads as follows:
"An alien staying in this country who does not, when this is required, possess a passport and a permit to stay here may be removed from the country."

The 1954 Aliens Act has subsequently been replaced by the 1980 Aliens Act which, in Section 38, contains a provision corresponding to Section 22 of the 1954 Act.

On 21 October 1980, the Police Board (polisstyrelsen) of Södertälje, which, was the authority responsible for the enforcement of the expulsion orders, decided to take the family into custody.

In order to avoid enforcement of the expulsion orders the family took refuge in a monastery outside Uppsala. The reasons for this were that the family saw no existential possibilities either in the Lebanon or in Syria. In Lebanon they all had deep traumatic experiences, and they feared persecution in Syria.

The applicants have submitted medical certificates dated 5 June 1980 and 9 January 1981 showing that Ferida Chamoun has psychiatric problems of a depressive nature following the loss of her husband and her anxiety of the possibility of being expelled.

The applicants state that as a result of her fear, Ferida Chamoun abandoned her children in the monastery and hid somewhere in Sweden.

On 24 February 1981 the police authorities in Uppsala apprehended Abdulmassih Bulus at the monastery. He was taken into custody and brought to the police authorities at Södertälje. He was released on the following day with an obligation to report to the police authorities each week-day. He was taken care of by relatives.

According to the 1980 Aliens Act it is the local aliens police which is responsible for the execution of an expulsion order. If there are new circumstances in a case, relevant for the granting of a residence permit, which have never been taken into consideration, the enforcement authority is competent to forward the question of enforcement to the Immigration Authority which can reopen the case and change decisions by the Government (Section 89).

By invoking this section of the Aliens Act Abdulmassih Bulus's lawyer appealed to the aliens police at Södertälje on 2 March 1981 requesting that the expulsion order should not be enforces. As "new circumstances" the lawyer invoked the psychiatric status of Abdulmissih Bulus and new information and evaluation about the political situation for the family if they returned. The allegation about Abdulmassih's psychiatric status was supported by a report issued by a doctor and psychologist at the Child and Youth Health Care Department of Stockholm County Council (psykiatriska barn-och ungdomsvarxen vid Stockholms s läns landsting). In the report, which is dated 26 February 1981, it was concluded that Abdulmassih was in acute need of a safe and settled existence in order not to seriously injure his psychological development. It is stated in the report that the separation from the mother has in the circumstances entailed such difficulties for Abdulmassih that the doctors' opinion was that he was very near to a nervous breakdown.

At the time when the application was made to the aliens police, Abdulmassih's brothers and sister had no contact with the police authorities. The lawyer also made applications for the other family members to the police authorities.

After this, Ibrahim and Jan Bulus voluntarily contacted the police authorities, which made investigations with them and their wives. They both received an obligation to report to the police authorities three times a week. They fulfilled this obligation.

On 3 April 1981 the Södertälje Police rejected the applications concerning the three applicant brothers and decided to enforce the expulsion orders on 15 April 1981.

In order to secure the enforcement of this decision the police decided to take the applicants into custody on 6 April 1981. They were detained in a prison, although in a section which is called half-open with the name "The Lake Villa" (Södertälje). This is a building situated in the grounds of Hall Prison, but outside the walls which surround the closed part of the prison. "Lake Villa" is a "semi-open" section of the prison, in which there is room for sixteen persons. It was at the time used exclusively for aliens who are kept in custody. Prisoners who are arrested or detained on remand as being suspected of criminal offences, or who have been taken into public care by the social-welfare authorities, are detained elsewhere.

The front door and all other outside doors of "Lake Villa" are locked, and visitors to the building are subject to control. There are bars across the windows. However, the inmates of the building are not locked up in cells and are allowed to move freely in the building.

On 8 April 1981 Abdulmassih was re-examined by the Child and Youth Psychiatric Health Care Department. In the report it is stated inter alia that Abdulmassih's situation was utterly serious and that he ought to be released from the prison immediately. The doctors said it appeared that Abdulmassih was near the limit of his endurance.

The police took Abdulmassih to the Child and Youth Psychiatric Department of a hospital in Stockholm for a new examination on 9 April 1981. After this he was returned to prison. In the medical certificate, issued after the examination, it was also recommended that Abdulmassih be released.

In the afternoon on 10 April 1981 Abdulmassih was released with an obligation to report daily to the police authorities. He went to stay with his relatives in Södertälje.

On 14 April 1981 the lawyer made a new application to the police authorities demanding that the cases should be referred to the Immigration Authority. He argued that there was no one who could take care of Abdulmassih is Syria if the expulsion order was to be enforced to that country. The brothers asked that the order be made instead to Lebanon, their former land of habitual residence.

On 14 April 1981, Abdulmassih was once again examined by the doctor and the psychologist, who stated in their conclusions inter alia that it was quite impossible for Abdulmassih-now separated from his mother for five months-to manage the expulsion without his mother.

In the morning of 15 April 1981 the police officer in charge decided not to change the decisions to expel Ibrahim and Jan to Syria, and they were sent there the same day.

Abdulmassih never reported to the police in the morning of 15 April. Abdulmassih states that his relatives, responsible for his wellbeing, decided during the night that they could not take the responsibility of allowing him to return to a most uncertain situation in Syria. In their opinion Abdulmassih's brothers would immediately be sent to their military service, which would have left Abdulmassih completely alone in the country. The relatives in Södertälje decided to hide Abdulmassih and to circumvent the expulsion order.

By letter of 12 February 1982, Abdulmassih's representative submitted to the Police Board of Södertälje a copy of medical certificates concerning Abdulmassih and his mother.

From one of the certificates dated 25 January 1982 and issued by a doctor at the Children's Psychiatric Clinic within the Stockholm County Council (Stockholms läns landsting), it appears that Abdulmassih was being moved from family to family in order to avoid the expulsion. In the certificate the doctor concludes that Abdulmassih's psychiatric development had taken serious damage and that it would take a long time before he could come out of his serious and depressive state.

The second certificate dated 4 February 1982 and issued by a doctor stated that Abdulmassih's mother suffered from grave depression and that there was a risk of suicide.

In a letter of 17 March 1982 the Police Board of Södertälje replied that the enforcement of the expulsion order of Abdulmassih had not been considered by the Board since Abdulmassih's whereabouts were unknown to the Board.

By letter of 15 July 1982, the Police Board of Södertälje informed Abdulmassih that the expulsion decision of 10 July 1980 by the Government could not be enforced any longer as more than two years had elapsed. Abdulmassih was also informed that he was staying in Sweden without the necessary permits and he was accordingly invited to apply for such permits.

On 22 July 1982 Abulmassih was re-examined by the Child and Youth Psychiatric Health Care Department. In the report it is stated that his state of health could not be considered as a temporary reaction of crisis, but rather a grave depression. If he is not given immediate and adequate care and secure living conditions it was judged in the report that there is a great risk for a lengthy and serious psychiatric disease, or suicide.

Following applications of 30 July 1982, the Immigration Authority, on 27 September 1982, granted Abdulmassih, his mother and sister a permit to stay and to work in Sweden for one year. These permits have subsequently been prolonged and Abdulmassih has now a permit to stay in Sweden up to the date on which he is 16 years of age.

The applicants' lawyer has withdrawn the application as regards Jan and Ibrahim Bulus. The two brothers have sent a message to their wives and the rest of their family in Sweden with the information that they were to start their military service on 28 April 1981.

COMPLAINTS

1. Abdulmassih Bulus submits that he has been subjected to inhuman treatment by the Swedish authorities in breach of Art. 3 of the Convention.

2. He also complains that his family life has been disrupted in breach of Art.8.

3. Finally, he also complains that he has had no effective remedy under Swedish law for these complaints as required by Art. 13 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced with the Commission on 10 April 1981 and registered on 13 April 1981. In a telex dated 14 April 1981 the Deputy Secretary to the Commission informed the Government, in accordance with Rule 41 of the Commission's Rules of Procedure, of the introduction of the application.

The Commission considered the admissibility of the application on 17 December 1981 and decided, pursuant to Rule 42 (2) (b) of its Rules of Procedure that the Government should be invited to present written observations on the admissibility and merits of the application insofar as it concerned Abdulmassih Bulus (Arts. 3 and 8).

The Commission also decided, in accordance with Rule 36 of its Rules of Procedure, to indicate to the Government that it was desirable in the interest of the parties and the proper conduct of the proceedings that Abdulmassih Bulus should not be expelled until the Commission had had an opportunity of examining the application in the light of the parties observations.

The Government's observations were dated 5 February 1982 and the applicants' observations were dated 29 March 1982.

On 8 May 1982 the Commission considered the admissibility of the application. The Commission decided to send a member of its secretariat to Stockholm to meet the parties and to obtain further clarifications mainly as to the Government's intentions regarding the expulsion of Abdulmassih.

On 13 May 1982 the Commission again considered the admissibility of the application in the light of the supplementary information obtained by its member of the secretariat. The Commission decided to adjourn the examination of the application and to maintain the indication under Rule 36.

On 14 July 1982 the Commission decided to invite the parties to an oral hearing on the admissibility and merits of the application under Arts. 3, 8 and 13. It also decided to maintain its indication under Rule 36 of the Rules of Procedure.

On 10 September 1982 the President of the Commission decided to postpone the hearing, which had then been scheduled to take place at the Commission's October session.

On 14 October 1982 the Commission decided to invite Abdulmassih Bulus to inform the Commission to what extent he wished to pursue his application in the light of the fact that he had been granted a permit to stay in Sweden. The Commission also decided to lift its indication under Rule 36 of the Rules of Procedure.

By letter of 26 November 1982 Abdulmassih Bulus stated that he wished to pursue his complaints that he had been subjected to treatment contrary to Art. 3, and that he had had no effective remedy for that complaint as required by Art. 3.

On 10 March 1983 the Commission decided to invite the Government to submit written observations under Arts. 3 and 13 of the Convention. As regards Art, 3 the Government were invited to reply to the question whether the situation created by the Government's decision to deport Abdulmassih Bulus and the conditions under which he found himself amounted to inhuman treatment contrary to Art. 3 of the Convention.

The Government's observations were dated 6 May 1983 and Abdulmassih Bulus' observations in reply were dated 13 June 1983.

On 13 October 1983, the Commission decided to invite the parties to an oral hearing on the admissibility and merits of the application regarding Abdulmassih Bulus on the issues under Articles 3, 8 and 13.

The hearing was held on 19 January 1984.

SUBMISSIONS OF THE PARTIES

The Government General's remarks

In order to secure immigrants basic living standards and means of housing, education, etc, there is a need to regulate the influx of immigrants into Sweden. The principle laid down in the Aliens Act of 1980 and earlier in the Aliens Act of 1954 is basically that persons from outside the Nordic area wishing to immigrate into Sweden must apply for necessary residence and working permits. Permits are not required for children under 16 years whose guardians are domiciled in Sweden. Special provisions are applied concerning refugees. Persons residing in Sweden without necessary permits are to be expelled according to Art. 38 of the Aliens Act of 1980 (Art. 22 of the 1954 Act). When reviewing the facts regarding a case of expulsion the Immigration Authority thus normally only has to consider formalities. Decisions on expulsion are to be taken simultaneously with the decision on the application for a residence permit. At the final stage of execution of an expulsion order the case may be reviewed again. If special reasons should have arisen, an order to stay the execution may be issued. This system for the regulation of immigration is of vital importance in order to make it possible to give all immigrants an equal treatment and a prospect of a reasonable standard of living. It is, therefore, it the benefit of all prospective immigrants as w ell as of the Swedish society in general that the respect for these provisions is upheld by the Swedish Authorities.

It sometimes happens that people facing the possibility of being deported use various methods in order to circumvent the regulations just mentioned. Thus, parents with small children may abscond their children, knowing that the Swedish authorities will not deport children without having guarantees that they will be properly taken care of after having returned to their home country.

Article 3

Abdulmassih and his family went into hiding following the Government's decision of 10 July 1980 to reject their appeal against the decision taken by the Immigration Authority. Ferida Chamoun later absconded her family. Abdulmassih was apprehended on 24 February 1981 by the police and brought to the police station in Södertälje. He was released after a few hours, under obligation to report daily in person the police authorities in Södertälje. He was released since the authorities did not find it possible for humanitarian reasons to expel Abdulmassih alone.

On 6 April 1981 Abdulmassih was taken into custody, pending the execution of the expulsion order. Four days later he was released again, under the same reporting duties as before. On 15 April 1981 the day scheduled for expulsion-Abdulmassih did not report to the police. His whereabouts were unknown until the Immigration Authorities on 27 September 1982 had granted his mother an alien's passport as well as a residence and working permit. Abdulmassih and his mother are now permitted to stay in Sweden as long as they wish.

As regards Abdulmassih's conditions during the period from 10 July 1980 to 27 September 1982, the following observations are made.

The period of 10 July 1980-24 February 1981: Abdulmassih was in hiding. The Government have no information about the conditions under which he spent this time.

The period of 24 February-6 April 1981: Following his release on 25 February, Abdulmassih was taken care of by relatives in Södertälje. He had to report to the police in Södertälje daily. These circumstances cannot be considered to amount to inhuman treatment contrary to Art. 3 of the Convention.

The period of 6-10 April 1981: Abdulmassih was in custody at "Lake Villa".

"Lake Villa" is a two-storey building. On the ground floor there are lounges, sanitary facilities and a pantry. On the upper floor there are single rooms with the necessary fittings and furniture. Separate beds can be provided to allow small children to sleep in their mother's room. Food is delivered from the central kitchen of the prison, but the pantry can be used for simple cooking.

"Lake Villa" has been rented by the Södertälje Police District to solve the problem connected with the keeping of aliens in custody, and especially to provide for the needs of families with small children. Previously such aliens were generally given accommodation in hotel rooms, which were guarded. However, in view of certain incidents which had occurred, the Police Board arrived at the conclusion that a building in which aliens are held in custody has to be kept under strict surveillance to prevent the inmates from escaping or, even more important, from injuring themselves or their children. It was decided, inter alia, that the inmates had to be kept under surveillance day and night. This meant that it was no longer feasible to lodge the inmates in hotels since, out of consideration for the other guests, the hotel management was not prepared to give accommodation to aliens who were being kept under surveillance. In this situation, the renting of "Lake Villa" was seen as a good solution. As this building is situated within the prison grounds, it was not necessary to keep the inmates under such close surveillance as would otherwise have been required. The aliens have been given the right to move freely inside the building, and their right to receive visitors has been extended. The Police Board considers that the use of "Lake Villa" as a place of custody has meant that it has been possible to minimise the personal inconvenience to the aliens who are held in custody.

The Government point out that the move to take Abdulmassih into custody together with his brothers and take them to "Lake Villa", was especially designed to minimise the personal inconvenience involved in custody, and that on 10 April 1981, the police authorities decided, for humanitarian reasons, to release Abdulmassih from custody despite the obvious risk that he would abscond and that, for that reason, it would not be possible to expel him together with his brothers.

The Government submit that the treatment to which Abdulmassih was subjected cannot during this period be said to be contrary to Art. 3 of the Convention.

In addition, the Government submit that Abdulmassih did not appeal against the decision by the Police Board of 6 April 1981 to take him into custody. He has consequently not exhausted domestic remedies.

The Government add that the "Lake Villa" is no longer used for the accommodation of aliens to be expelled.

The period of 10-15 April 1981: Abdulmassih was released but was under the obligation to report to the police in Södertälje daily. He was again taken care of by relatives. Abdulmassih's conditions during this period cannot be considered as an inhuman treatment.

The period of 15 April 1981-10 July 1982: The Government do not have any precise information about Abdulmassih's conditions during this period. He was seen by the police in Södertälje from time to time, but he was not apprehended since the police realised that the expulsion order could not be enforced.

The period of 10 July-27 September 1982: The Government do not have any precise information about Abdulmassih during this period. Since under the Aliens Act an expulsion order is valid only for two years, the decision of the Government was automatically invalid on 10 July 1982. From this date on there was no longer any immediate threat of expulsion not even if Abdulmassih's mother had been found by the police. This must have been known to Abdulmassih or the people who took care of him. On 30 July 1982 a renewed application for residence permits for Abdulmassih and his mother was lodged with the police in Södertälje. The permit was granted by the Immigration Authority on 27 September 1982.

When forming an opinion of the manner in which the authorities handled Abdulmassih's case the Government submit that the following should be kept in mind: Abdulmassih's mother left him during the first period of hiding (in 1980-1981). Lather his older brothers were hiding with the purpose of avoiding the enforcement of the expulsion order. The Swedish authorities knew that the expulsion order could not be executed as long as Abdulmassih was alone and had no one in Syria who could take care of him on his return. In view of these circumstances, the Swedish authorities were put in a situation where they had to arrange for the immediate care of hid. Having done so, the police released him immediately after he had been apprehended. When his two brothers reported to the police, the circumstances were again such that the expulsion order could be enforces, and the legal prerequisites for taking Abdulmassih into custody were thus again present. Upon medical examination Abdulmassih was again released. The Government conclude that the Swedish authorities can in no way be said to have subjected Abdulmassih to inhuman treatment.

As regards the question whether the mere existence of the Government's decision to expel Abdulmassih created a situation which could be regarded as inhuman treatment, the Government submit that as the execution of the expulsion order-had it taken place-would have violated neither Art. 3 nor Art. 8 of the Convention, they cannot accept that the decision in itself could constitute inhuman treatment. On the contrary, the conditions under which Abdulmassih lived during the period in question are a direct result of evasive actions by his mother, other relatives, and their assistants, the main responsibility being his mother's. Generally speaking, the government regret what has happened to Abdulmassih, but they consider that most of the reasons for this have been outside the control of the Government.

The Government regret the fact that parents sometimes abscond without their children in order to avoid expulsion. It is evident, however, that if such actions were to entail invalidation of duly considered expulsion orders it would be impossible to uphold the respect for the system of immigration into Sweden as laid down in the Aliens Act.

The Government submit that the facts show that the Swedish authorities have fully taken into account the humanitarian aspects of the situation.

Article 3 is only breached if the treatment has reached a certain threshold of ill-treatment. The Government submit that there must be a certain intention behind it, or at least a certain degree of negligence, before one could describe ill-treatment as a breach of the Convention. The Government consider that the complaint under Art. 3 is manifestly ill-founded.

Article 8

The Government emphasise that the Swedish authorities have not separated Abdulmassih from his mother or his brothers. The original plan was to expel the whole family at the same time. This proved impossible when the mother went into hiding and thereby kept herself apart from Abdulmassih and his brothers. Subsequently the authorities intended to expel Abdulmassih together with his brothers but this, too, became impossible after Abdulmassih had absconded. Furthermore, all the members of the family were Syrian citizens and there would not have been any obstacles to their reunification in Syria. In these circumstances, the Government maintain that Abdulmassih's right to respect for his family life has not been violated. They submit that in this respect the application is manifestly ill-founded.

Article 13

As for the original issues of residence permit and expulsion, the case was brought all the way to the government. Since an expulsion order has to be issued simultaneously with a negative decision on the application for permits, the merits of the case were reviewed by the Government as regards both decisions. Thus, the applicant had an effective remedy in both instances.

Regarding the decision to take Abdulmassih into custody the following rules apply: Under Art. 67 of the 1980 Aliens Act, appeals against decisions on custody are to be brought before an Administrative Court. The Court's decision may be appealed up to the Supreme Administrative Court. Thus, there is an effective remedy within the meaning of Art. 13. However, the applicant did not use this remedy.

As for the execution of an expulsion order, no direct remedy is available. However, this cannot be considered to constitute a breach of Art. 13 since the applicant already has had the possibility of having his case reviewed, as stated above. When the Government have decided finally to reject an appeal, there should remain no further formal obstacles to expulsion. Art. 13 could not be interpreted as guaranteeing a further remedy on the enforcement stage of a decision.

In this context, attention should be drawn to Art. 89 of the 1980 Aliens Act which provides: "Where, in cases other than those referred to in Articles 85-87, any obstacles or difficulties arise as regards the execution of a decision on expulsion or deportation, or if doubts arise as to whether or how such a decision is to be executed, the matter shall be referred to the Immigration Authority." Under Article 72 this authority may, " where it finds that the decision ought not to be executed, revoke the decision or defer the execution of the decision".

The police authority did not refer Abdulmassih's case to the Immigration Authority, since the situation was not considered to be of such a nature as described in Art. 89. Against this "non-decision" there is no remedy under the Aliens Act. Should this "non-decision" be regarded as inhuman treatment there would, however, be an effective remedy under the Penal Code (brottsbalken), Chapter 20 Section 1. Paragraphs 1 and 2 of this Section read as follows:

"A person who in the exercise of office disregards what is laid down in law or other ordinance concerning exercise of the office shall, if the act causes harm or not insubstantial, improper benefit to the public or to an individual, be sentenced for misuse of office to pay a fine or to imprisonment for at most two years. If the crime is grave, it shall be punished by imprisonment for at most six years.

A person who commits a crime as stated in the first paragraph through gross carelessness shall be sentenced for careless misuse of office to pay a fine or to imprisonment for at most one year."

Any individual who considers himself being harmed by an act or omission committed by a civil servant may bring a complaint to the public prosecutor. The public prosecutor is under an obligation to institute criminal proceedings against the civil servant, if he considers the complaint well founded. If the prosecutor decides not to bring such an action, the individual may himself institute a criminal action against the civil servant. The victim may also claim damages from the civil servant. Such a claim may be presented in connection with prosecution for the offence or in separate civil court proceedings against the civil servant. A person who considers that a police officer has disregarded his duties in a case like the present may thus have the court examine whether the police officer performed his duties in accordance with law.

Accordingly, the Government submit that the applicant did have effective remedies within the meaning of Art. 13 for the alleged breach of Art. 3 of the Convention. Furthermore, as regards the deprivation of liberty and the actions by the execution authority, the applicant did not exhaust the domestic remedies available to him.

The Applicants

1.Abdulmassih Bulus
Exhaustion of domestic remedies

As regards the decision by the Police Board to take Abdulmassih Bulus into custody the applicant submits that it is true that he did not appeal to the County Administrative Court against this decision, although it was possible. The reason for this was that the applicant's lawyer was not informed of the decision by the police until 8 April 1981. On the same day he was informed that it was intended that Abdulmassih be examined by a child pscychiatrist and a psychologist. The applicant's lawyer considered that it would take at least two days more, before a decision could be taken by the County Administrative Court, and it is extremely rare that a court changes a decision of custody. As an alternative remedy there was the possibility of applying to the Police Board for reconsideration of the decision to take Abdulmassih Bulus into custody and that was what the applicant's lawyer did. A complete exhaustion of domestic remedies by appealing against the custody decision comprises appeals in the first instance to the County Administrative Court, in the second instance to the Administrative Appeal Court and in the their instance to the Supreme Administrative Court. This is a procedure which at least takes weeks. In the applicant's lawyer's experience a Police Board is reluctant to reconsider its own custody decisions, when an appeal has been brought to another authority because in such a case it could be considered as if the responsibility has been transferred to another authority. In view of this, and having regard to the alarming medical certificate, the applicant's lawyer thought it most favourable to apply for a reconsideration of the decision, in order to have Abdulmassih Bulus released.

The applicant submits that the application cannot be rejected for non-exhaustion of domestic remedies. It is submitted that one of the most important aspects of the application is the fact that no measure was taken in order to give Abdulmassih the care which he was in desperate need of. Against such an omission by the authorities there is no domestic remedy.

General remarks

As to the grounds for the decision to expel Abdulmassih Bulus to Syria it is stated that the reasons given by the Immigration Authority was firstly that there was not sufficiently strong reasons to consider Abdulmassih's mother as a refugee within the meaning of the Aliens Act. Secondly the Immigration Authority found that the reasons were not sufficiently strong to let her stay on in Sweden either on political humanitarian reasons or on purely humanitarian reasons. Abdulmassih's mother's application for a permit to stay and a permit to work in Sweden was therefore rejected. As she was in Sweden without a permit to stay and without a passport the Immigration Authority decided that she and her children should be expelled from Sweden. After appeal against this decision the government rejected the appeal without giving any reasons for it.

The applicant submits that it is not a correct description of the realities when the government submit that parents may abscond their children knowing that the Swedish authorities will not expel children without having guarantees that they will be properly taken care of after having returned to their home country. It is submitted that Swedish authorities do not obtain any such guarantees.

It often happens that regard is not had to the consequences for the children of an expulsion decision. This follows from the fact that the children under 16 years do not have to make their own application when they are accompanied by a parent. Therefore no special investigation is made about the children. In addition, there is a lack of knowledge as regards the risks for the health of children in expulsion matters. The investigations concerning the children which still exist have come about on the initiative of the representative of the parents or health care authorities. It is a question of coincidences whether an investigation concerning the children forms part of the file when the Government decide on expulsion. When subsequently the police authorities are about to enforce the expulsion decision it is often assumed that the consequences for the children were known to the Government.

The Government state in their observations that the Police Board did not refer the matter of enforcement to the Immigration Authority since the situation was not considered to be of such a nature as described in Art. 89 of the Aliens Act. This omission, it is submitted, occurred although the Government were obviously not informed of the alarming medical reports on Abdulmassih's situation when they decided to expel him.

It is submitted that the Police Board's planning of the enforcement contradicts the Government's general assertions of guarantees for an appropriate procedure.

As regards the Government's description of the applicable law Abdulmassih makes the following remarks.

The description omits to inform that there are special rules not only for refugees, but also for "protection applicants" (skyddsökande) in a wider sense, and that Abdulmassih had applied for protection under these provisions. The Immigration Authority was thus not only obliged to consider formalities. The Government also "forget" to describe their own extensive responsibility for a complete investigation of the cases in which they determine. In addition, there is no room according to the Aliens Act for an order not to enforce an expulsion decision in a case like the present one.

Art. 3

The applicant submits that the expulsion decision did not as such contravene Article 3, although it had an inhuman character. He submits that the inhuman treatment starts on 6 April 1981 when he was taken into custody for the second time. At that time it was well known to the police authorities that Abdulmassih had such a mental state that it would be dangerous to put him in a prison. The applicant refers to the contents of a medical report of 26 February 1981 according to which Abdulmassih was in acute need of orderly conditions in order not to seriously disturb his continued mental development. A further alarming medical report was delivered on 8 April 1981. Nevertheless, the police authorities were not satisfied. Abdulmassih was brought to a hospital for a further examination, and it was not until 10 April that he was released. The applicant submits that it is unbelievable that a number of medical certificates were necessary for his release. It is submitted that to keep him in a prison for five days in such circumstances is an obvious breach of Article 3.

The second aspect of inhuman treatment starts when the police authorities, in spite of certificates from pyschiatrists, did not change the planning of the execution of the expulsion orders. During the night prior to the scheduled expulsion, the police received a new medical certificate which inter alia stated that an expulsion of the applicant without the support of a parent would completely ruin his possibilities of a normal development. Novertheless, on 15 April, Abdulmassih's two brothers were expelled. It is submitted that this was inhuman treatment of Abdulmassih.

The Government's submission t hat Abdulmassih's whereabouts were unknown until the decision by the Immigration Authority on 27 September 1982 is, it is maintained, contradicted by the Government's information that he was seen by the police in Södertälje now and then during the period from 14 April 1981 to 10 July 1982. It is submitted that the allegation by the Government that they have no precise information about Abdulmassih's living conditions during the said period is clearly wrong. Following the application to the Commission on 10 April 1981, the Government must have had information about Abdulmassih's conditions since they have been continuously documented to the commission in the medical certificates which have been submitted.

It is submitted that it is typical for the dealing with Abdulmassih's case that the Government have simply ignored the careful documentation concerning Abdulmassih's living conditions. The Government only describe where he has been during certain periods the major point in the complaints to the Commission is that it is inhuman to passively take note of the deterioration of Abdulmassih's psychiatric status without any measures being taken to improve his situation. Irrespective of whether a child has a permit to stay in Sweden or not the Act on Social Services (socialtjänstlagen) and the Act on Care of Children (lagen om vard av unga) provides for far reaching obligations on the authorities to give children protection and support. This applies in particular when the child's care taker is unable to do it. It is not possible to accept the Government's position that the mother has the major responsibility. It is furthermore possible to explain the mother's behaviour by reference to what was known about her situation and in particular her health.

In reply to the Government's submission that it would be impossible to uphold the respect for the system of immigration if actions by parents to abscond their children in order to avoid deportation would entail invalidation of duly considered expulsion orders, the following is submitted:

It is not possible to understand why parents abscond their children if the reasons for the expulsion are not examined at the same time. The situation when this has happened in Sweden is above all when the authorities have refused so called B-refugees (Section 6 of the Aliens Act) protection with reference to special reasons, and because "humanitarian reasons" as ground for a permit has become hollowed out due to a more restrictive practice. Without indulging in details about the situation of the parents, it is submitted that a parent does not abscond his child unless he is in a very difficult situation.

Abdulmassih submits that the prerequisites for granting him a permit to stay based on humanitarian reasons were at hand, but such a decision was obstructed by the Police Board's refusal to refer the case to the Immigration Authority, and there was no possibility of attacking this passiveness. A logic step to alleviate the situation for Abdulmassih would have been to transfer the case to the Immigration Authority in order to have it reopened. However, the Swedish authorities did not do so. Although the police authorities saw Abdulmassih from time to time, they never apprehended him since, as they say, the police realised that the expulsion order could not be enforced. The police knew that Abdulmassih was trying to hide from the police. They were also aware of his bad state of health. They knew that he believed that the police would try to expel him to Syria as soon as possible if they had found him. However Abdulmassih did not know that the police was of the opinion that the expulsion order could not be enforced. Moreover, on 17 March 1982 the Police Board replied to a letter from the applicant's lawyer stating that the enforcement of the Government's decision had not been examined since Abdulmassih's whereabouts were unknown to the police authorities. It thus appears that this was simply not true, since the police saw Abdulmassih from time to time. It is submitted that this inhuman policy of "non-decisions" by the police concerning Abdulmassih and his family continued for 15 months despite the fact that the case was dealt with by the Commission during that time. This policy was in fact supported by the Government in the way that they did not act in this period. The applicant submits that the Government must be fully responsible for the behaviour of the police authorities.

Regarding the description of the so called Lake Villa the applicant submits that the Government's description is misleading. The applicant maintains that the following is a description made by representatives for the Swedish Central Criminal Authorities.

"The Lake Villa seems to be a new name on this building which until some years ago was used for the category of prisoners in Sweden called interned prisoners that is to say those who had been convicted to internment sentence. This category of prisoners were the most difficult prisoners within the criminal care. The Lake Villa, which was not called so at that time, was used for such interned persons who were granted certain advantages in the internment. The building had and has today grated windows. In comparison with smaller local prisons there is no particular difference between the lake Villa and these prisons. They belong to the same category of buildings within the criminal care. The Central Criminal Authority wishes to use the Lake Villa within the criminal care also in the future."

It is submitted that it is significant for the Government's reply to the Commission as regards the circumstances under which Abdulmassih was kept in custody that no concrete account is given in respect of his individual circumstances. Abdulmassih was given the right to be outside in fresh air for the same period of time as normal prisoners, that is to say a very short period every day in view of the needs of children. The stay outside was performed under the surveillance of person belonging to a guarding company. The applicant submits that these guards have no education whatsoever in respect of children taken into custody.

In all, the applicant submits that he has been subjected to inhuman treatment contrary to Article 3 of the Convention.

Art. 8

The expulsion of the two brothers on 15 April 1981 constituted a violation of Abdulmassih's right to respect for family life. By enforcing the expulsion decision the family was split up and the two brothers have not been given the right to return to Sweden. Abdulmassih has therefore assumed the task of being the head of the family, which, considering his age and health, is too much for him.

It is also alleged that, had Abdulmassih been sent to Syria where he had not lived since he was one year old, this would have been a violation of his rights under Article 8. Moreover, no guarantees were obtained as to how Abdulmassih would be cared for if sent to Syria. His two brothers were to do military service, which they also started at the end of April 1981.

Furthermore, the applicants' request to be sent to Lebanon instead of Syria was ignored. The applicants feared to be sent to Syria, since they would not be allowed to leave Syria. If they were sent to Lebanon, the two brothers could have applied to the Immigration Authority for family reunion in Sweden with their respective wives, and after a positive decision they could have returned to Sweden.

The applicant also refers to the contents of a certificate by the Child and Youth Psychiatric Health Care Department of Södertälje of December 1983 according to which it was deeply tragic for Abdulmassih that his family had split up.

Art. 13

The applicant refers to the fact that the Police Boards have received instructions from the National Police Board (riskspolisstyrelsen) not to transmit to the Immigration Authority matters of enforcement of expulsion decisions, if the alien invokes different circumstances, which can be called humanitarian reasons. The applicant observes that it is not possible to appeal against a police Board's refusal to transmit the enforcement matter to the Immigration Authority and that there are no other remedies.

It is submitted that the inhuman treatment at the enforcement stage constituted new facts and information which appeared after the Government's expulsion decision, although they are closely linked to that decision. It is obvious that the right of appeal to the Government from the decision by the Immigration Authority cannot constitute a remedy for facts which were not known until later.

In respect of the Government's reference to the remedies of a criminal action against civil servants and civil proceedings for damages, the following is submitted: The applicant observes that a prerequisite for applying these provisions are that someone has disregarded what is laid down by law or other ordinances. However, all the decisions in the case are perfectly legal. All measures were taking in accordance with the law. Furthermore, even if the responsible civil servant with the Police Board had been convicted for a criminal offence this would not necessarily have implied an obligation for the Police Board to refer the enforcement matter to the Immigration Authority. The Court cannot order the Police authority to act in a particular manner. Furthermore, it is submitted, that it could not be required that a person who is dependent on the willingness of a civil servant to report a criminal offence on him to the police authority. For different reasons it is very difficult to prosecute and to have public servants convicted in Sweden. Such proceedings which would entail several instances and take a long time, cannot be regarded as effective.

Moreover, as regards the decision to take Abdulmassih into custody there was nothing unlawful under Swedish law in that decision. If that decision had been appealed to the Administrative Courts it would not have been possible for these Courts to decide on the actual placement of Abdulmassih. They could only have determined whether the requirement for a decision to take him into custody were fulfilled and the applicant does not dispute that those requirements were at hand.

2. Jan and Ibrahim Bulus

The application on behalf of Jan and Ibrahim Bulus has been withdrawn for the following reasons.

Having had regard to a decision by the Commission of 6 July 1981 (Application No. 9105/80), the applicant's lawyer considered it difficult to convince the Commisison that the degree of inhuman treatment was enough to constitute inhuman treatment within the meaning of Art. 3 of the Convention. He also feared that following the expulsion on 15 April 1981, further investigations, if at all possible to carry out in Syria, might put the two brothers in danger, since they had feared persecution in Syria, before the expulsion orders were executed. Furthermore the lawyer considered that a decision stating a violation of Art. 3 could not have the effect of the cessation of the violation as the expulsion orders were already executed.

THE LAW

1. Abdulmassih Bulus has invoked Art. 3 of the Convention and submitted that he has been subjected to inhuman treatment by the Swedish authorities. The Government have submitted that this complaint is partly inadmissible for failure to exhaust domestic remedies and in any event as being manifestly ill-founded.

Art. 3 reads:
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment".

It has been established by the case-law of the Convention organs that before treatment can be considered to be inhuman, it has to reach a certain stage of gravity, causing considerable mental or physical suffering. The Commission refers on this point to the case of Ireland v. the United Kingdom in which the European Court of Human Rights stressed that "ill-treatment must attain a minimum level of severity if it is to fall within the scope of Art. 3. The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim, etc." (Eur. Court H. R., Case of Ireland v. the United Kingdom, judgment of 18 January 1978, Series A No. 25, para. 162).

The Commission recalls that Abdulmassih arrived in Sweden on 4 October 1979 together with his mother, two brothers and one sister. Their application for residence permit in Sweden was rejected finally by the Government on 10 July 1980, and an order of expulsion was issued against them. Following this decision, the family took refuge in a monastery to avoid the enforcement of the expulsion. It appears that during the time at the monastery the mother abandoned her children.

It was not until 24 February 1981 that Abdulmassih was located and apprehended at the monastery and brought to the police authorities in Södertälje, which was the authority responsible for the enforcement of the expulsion order. Abulmassih was released the following day with an obligation to report to the police authorities each week-day.

During the time up to 6 April 1981 Abdulmassih was taken care of by relatives in Södertälje. On that day he was taken into custody at the Lake Villa, allegedly a prison, together with his two brothers. He stayed there to 10 April when he was released with an obligation to report to the police authorities daily.

The authorities intention was to expel Abdulmassih together with his two brothers on 15 April, but Abdulmassih did not appear on that day, and therefore only his brothers could be expelled.

Almost one and a half years later, on 27 September 1982 Abdulmassih's mother was, by a decision of the Immigration Authority granted a residence permit in Sweden for one year. By virtue of that decision Abdulmassih was also permitted to stay in Sweden. This permit has subsequently been prolonged.

Abulmassih alleges a violoation of Art. 3 of the Convention mainly based on the treatment of him by the Swedish authorities, seen as a whole. He points in particular to the fact that he was held in a prison from 6 to 10 April 1981, and that the authorities did not change their plans to expel him in spite of all the medical reports which had been submitted.

In respect of the period in custody (6-10 Aril) the Government have submitted that the applicant did not exhaust domestic remedies in that he did not complain about the custody decision to the Administrative Courts. In addition, they have submitted that this complaint is manifestly ill-founded maintaining that to a large extent the Government could not be held responsible for the conditions in which the applicant found himself since they were the result of evasive actions by his mother, other relatives and their assistants in order to circumvent the enforcement of the expulsion order.

The Commission accepts that the applicant had a possibility to appeal against the decision to take him into custody. Such an appeal could however, only relate to one aspect of the complaint made under Art. 3.

The applicant's representative has explained that he was informed of the custody decision on 8 April 1981, i.e. two days after the applicant was taken into custody. He had the choice between appealing to the Administrative Courts and to ask the Police Board for reconsideration of the case. He chose the latter since he considered it the most appropriate avenue to take. It is noted that Abdulmassih was released two days later, and after release, the Administrative Courts would no longer enter into the merits of an appeal.

Moreover, Abdulmassih does not allege that the custody decision was unlawful under Swedish law. He alleges that it was inhuman treatment to place him in a prison. The applicant submitted, and the Government have accepted it, that the Administrative Courts could not examine the issue of in what sort of institution a person should be placed under a coustody decision. The examination is limited to the question as to whether the persons should be taken into custody or not.

In view of the above observations the Commission is of the opinion that under Art. 26 of the Convention, it could not be required that Abdulmassih should have lodged an appeal with the Administrative Courts. The Commission is therefore unable to accept that this aspect of the application could be declared inadmissible for non-exhaustion of domestic remedies.

The Commission has carried out a preliminary examination of the merits of the complaint under Art. 3 in the light of the parties observations. It considers that the complaint raises several issues of facts and law which are of such an important and complex nature that their determination should depend upon a further examination of the merits.

Consequently, this aspect of the application cannot be declared inadmissible.

2. The Commission has next examined Abdulmassih's complaints under Art. 8 which guarantees to everyone the right to respect for his private and family life.

Art. 8 reads as follows:

"1.Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

The Commission recalls that the separation of the members of the Bulus-Chamoun family which has taken place, is to a certain extent due to measures taken by the members of the family themselves. However the Swedish authorities have taken measures which have clearly affected Abdulmassish's rights under Art. 8, inter alia the decision to expel Abdulmassih together with his two brothers, while the mother and his sister were to be left in Sweden, and the subsequent decision to expel only the two brothers.

After having made a preliminary examination of the merits of this complaint the Commission considers that also this complaint raises several issues of such an important and complex nature that their determination should depend upon a further examination of the merits.

Accordingly, this aspect of the application cannot be declared inadmissible.

3. Abdulmassih has also alleged that he has not had an effective remedy for in particular the alleged violation of Art. 3, as required by Art. 13 of the Convention.

Art. 13 is worded:

"Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."

The Government has submitted that the applicant had a remedy to the Government against the expulsion decision, and to the Administrative Courts against the custody decision. They maintain that Article 13 does not require a further remedy for the enforcement of a decision which has already been examined in substance by the authorities. In any event, they submit that the applicant could have brought a criminal action or civil action against any public servant for misuse of office or careless misuse of office (Penal Code Chapter 20, Section 1) if the applicant had been harmed by any act or omission by such a servant. In such proceedings the applicant could have claimed damages. The Government therefore concludes that the applicant had an effective remedy and that the complaint is manifestly ill-founded.

The first issue to be decided is whether in the circumstances of the case, Article 13 could be interpreted as guaranteeing to the applicant a further remedy on the enforcement stage of the expulsion decision which had previously been examined in two instances. In the affirmative, it must then be decided whether the remedies which were at his disposal satisfied the requirements of an "effective remedy" within the meaning of Art. 13.

As regards this question, the following remedies are relevant:

a)an appeal to the Government against the expulsion order by the Immigration Authority.

b)an appeal to the Administrative Courts against the decision to take Abdulmassih into custody.

c)an application to the Police Board for reference to the Immigration Authority of the issue of enforcement of the expulsion.

d)a criminal or civil action against civil servants for misuse of office or careless misuse of office.

The Commission has carried out a preliminary examination of the above issues in the light of the parties observations. It considers that the complaint under Art. 13 raises several issues of facts and law, which are of such an important and complex nature that their determination should depend upon a further examination of the merits.

Consequently, neither this aspect of the application can be declared inadmissible.

4. Jan and Ibrahim Bulus have withdrawn their complaints to the Commission.

The Commission has had regard to the lawyer's explanations as to the withdrawal, and concludes that there are no reasons of a general character affecting the observance of the Convention which justify further examination of their complaints.

For these reasons, the Commission

DECLARES ADMISSIBLE THE COMPLAINTS OF ABDULMASSIH BULUS

And

DECLARES TO STRIKE OFF ITS LIST THE REST OF THE APPLICATION

 

Secretary to the Commission

President of the Commission

(H. C. KUGER)

(C. A. KORGAARD)

 

 


 



[1]* This decision is public and can be obtained from the Commission's Secretary. The decision will be published in the Commission's official publication entitled decisions and Reports.

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