D. and Others v. Sweden
EUROPEAN COMMISSION OF HUMAN RIGHTS
AS TO THE ADMISSIBILITY OF
Application of D. AND OTHERS (no. 2) v. SWEDEN
ORIGIN: COMMISSION (Plenary)
TITLE: D. AND OTHERS (no. 2) v. SWEDEN
APPLICATION NO.: 21649/93
REPRESENTED BY: DE GEER, S., lawyer, Stockholm
DATE OF INTRODUCTION: 19930323
DATE OF DECISION: 19930708
RULES OF PROCEDURE:
LAW AT ISSUE: Chapter 2, Section 5 of the Aliens Act ; Chapter 7, Section 11 of the 1989 Aliens Act (utlänningslag 1989:529)
STRASBOURG CASE-LAW: Eur. Court H.R. Deweer judgment of 27 February 1980, Series A no. 35, p. 15, para. 26 Eur. Comm. H.R. No. 10978/84, Dec. 14.10.86, D.R. 49, p. 144 
AS TO THE ADMISSIBILITY OF Application No. 21649/93 by D. and Others against Sweden The European Commission of Human Rights sitting in private on 8July 1993, the following members being present:
MM.C.A. NØRGAARD, President
Mrs. G.H. THUNE
Mrs. J. LIDDY
I. CABRAL BARRETO
Mr.H.C. KRÜGER, Secretary to the Commission Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms; Having regard to the application introduced on 23 March 1993 by D. and Others against Sweden and registered on 8 April 1993 under file No. 21649/93; Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission; Having regard to the Government's written observations of 11 May 1993 and the applicants' written observations in reply of 3 June 1993; Having deliberated; Decides as follows:
THE FACTS The applicants, D. and Others, are husband, wife and daughter. The husband and the wife were born in 1965 and their daughter in 1991. The first applicant is presently undergoing psychiatric treatment at the hospital of Beckomberga, Stockholm. The other applicants are currently living at Farsta. Before the Commission the applicants are represented by Mr. Sten De Geer, a lawyer practising in Stockholm. The facts of the case, as submitted by the parties, may be summarised as follows:
Particular circumstances of the case The first applicant is the son of a well-known Peruvian dissident who demanded social justice for farmers in books and newspaper interviews. While unsuccessfully searching for his father the authorities in 1982 arrested the first applicant and kept him in detention for six months without a trial. The police tried to make him reveal information pertaining to his father's political activities, allegedly by torturing him with electric shocks, by keeping his head in cold water, by beating him with sticks and whips and by forcing him to listen to his stepmother being tortured. As a result he still suffers from insomnia, kidney problems and headache. He has scars on his back. In 1986 the first applicant was again arrested and detained for fifteen days and allegedly tortured, again without a trial. He was accused of being a member of Sendero Luminoso, a guerilla movement. In 1989 the first applicant was detained for fourteen days and allegedly tortured during interrogations regarding his stepmother's activities. Between arrests the first applicant received telephone death threats from the paramilitary right-wing group, Rodrigo Franco, which the applicants allege is supported by the Peruvian Government. Following the first applicant's release after the second arrest, he and his wife moved around in Peru in fear of being persecuted. They both claim to have been active members of the Committee of Relatives of Political Prisoners and Disappeared Persons, an organisation prohibited by the Peruvian authorities. Other members of the Committee have disappeared. In particular, the first applicant has criticised, in newspaper and television interviews as well as in letters to international organisations, the authorities' lack of respect for the rule of law and the treatment of arrested and imprisoned persons. The first and second applicants allegedly managed to obtain passports and leave Peru after they had bribed certain officials. They arrived in Sweden on 30 March 1990. On 6 April 1990 they requested asylum, stating that if they were to be returned to Peru the first applicant would be subjected to persecution and ill-treatment. On 6 August 1991 the National Immigration Board (Statens invandrarverk) refrained from deciding on the asylum requests and referred the matter to the Government in accordance with Chapter 7, Section 11 of the 1989 Aliens Act (utlänningslag 1989:529). On 27 October 1991 a daughter was born to the first and the second applicant. On 7 July 1992 the National Immigration Board also referred the daughter's case to the Government. On 8 July 1992 the Government rejected the applicants' request for asylum. The first applicant's stepmother and her daughter were granted residence permits on humanitarian grounds. In a psychiatric report of 15 October 1992 by Dr. Eliana Arellano, a Spanish-speaking psychiatrist at the County Administrative Council (landstinget) of Stockholm, the following is stated: (translation from Swedish) "The report is based on notes taken during [the first applicant's] visits to our clinic between 26 April 1990 and 3 August 1992 and subsequent conversations, the latest on 9 October 1992. [The first applicant] is a 27 year-old Peruvian man who came to Sweden in April 1990 and has since then been awaiting the grant of asylum. His stepmother ... and halfsister were granted residence permits in the summer of 1992. Interviews and notes show that [the first applicant] belongs to a Peruvian family whose father seems to be a well-known person active in an opposition movement in Peru. ... At the age of sixteen [the first applicant] experienced the dissolution of his family, his father having been forced to go into hiding. [His stepmother] was subsequently imprisoned, as the military wanted to find [his father]. During the same period [the first applicant] himself was tortured ... in order to force him to reveal his father's whereabouts. He was subsequently transferred to a prison for minors and was released after six months ... following which he could see his stepmother only on a few occasions, either in the prison or at the mental hospital where she was detained for many years. In 1986 [his] father died in what the press called a "massacre" in a prison in Lima. [The first applicant] has been detained on two further occasions, in 1987 and November 1989, the last time because [the military] was trying to find [his stepmother]. This detention gave him good reasons for fearing for his life. He therefore requested asylum following a request lodged by his stepmother. ... [He] has now been waiting for a residence and work permit for more than two years. Due to serious anxiety and depression he has been given a place in a support group for asylum seekers at this clinic. During the period he has been a member of the group his state has varied. On several occasions he has been offered conversations on an individual basis. On one occasion [his] depression and anxiety were serious and the risk of his committing suicide was considered as great. After the summer of 1992 [he] has only contacted us by telephone as he has been fearing [an enforcement of the expulsion order]. In connection with this [he] has reacted with symptoms of paralysis and great anxiety, concentration problems, inactivity and passivity. On 9 October 1992 he told me about his present state and said that he, because of the pressing situation, has been suffering from insomnia, despite his previous medication. ...In connection with his insomnia he has had flashbacks from his imprisonment and torture at the age of sixteen and [now] strongly fears that he will be murdered. [He] cannot at present see any meaning in life, as his only future, in case the expulsion order is enforced, will be a certain, horrifying death. This reaction can thus only be considered a natural one. The flashbacks from [his] traumatic experiences, which he used to be able to stand because of medication and the support group, have now become more outstanding. [He] suffers from post-traumatic experiences. At present the suicidal risk is great..." An opinion of 11 December 1992 by the Centre for Torture Victims (Centrum for tortyrskadade) concurred with Dr. Arellano's report and concluded that it seemed extremely unlikely that the first applicant had not been subjected to torture. The opinion was based on a substantial number of interviews with the first applicant as well as an examination of the first applicant's teeth carried out by a forensic ododntologist and an examination by a dermatologist of the first applicant's skin. According to the latter opinion it could not be excluded that the first applicant's scars had been caused by violence. On 15 February 1993 the Commission declared inadmissible the applicants' application No. 20547/92 as being manifestly ill-founded. It left open, however, the question whether the first applicant's expulsion would involve such a trauma that, as such, it could amount to a violation of Article 3 of the Convention. The Commission noted that the aforementioned reports on his mental state had not been submitted to the National Immigration Board. On 23 February 1993 the applicants lodged, in accordance with Chapter 2, Section 5 of the Aliens Act, a new request with the National Immigration Board for a residence permit. They invoke the above reports as well as a further report dated 23 February 1993 by Dr. Arellano concluding that the enforcement of the first applicant's expulsion would entail a great risk that he would suffer a nervous breakdown or commit suicide. On 24 February 1993 the Board suspended the enforcement of the applicants' expulsion pending an examination of the first applicant's state of health by a psychiatrist appointed by the Board, Dr. Anette Voltaire Carlsson. In her opinion of 9 March 1993 Dr. Voltaire Carlsson concluded that the first applicant's mental state did not constitute an obstacle to the enforcement of his expulsion. She noted that no serious attempt to commit suicide had been carried out by him. On 16 March 1993 the enforcement was further suspended until 22 March 1993. In a further report of 23 March 1993 submitted to the Board by the applicants Dr. Arellano refuted Dr. Voltaire Carlsson's opinion. The applicants further submitted a report of 21 March 1993 by a Dr. Marcello Ferrada-Noli, a Spanish-speaking psychologist at the Karolinska hospital in Stockholm, refuting Dr. Voltaire Carlsson's conclusion. Dr. Ferrada-Noli had been involved in the examination of the first applicant at the Swedish Centre for Torture Victims. A further joint report of 22 March 1993 by Dr. Sten Jakobsson, Chief Doctor at the Swedish Centre for Torture Victims, Dr. Hans Peter Söndergaard, a psychiatrist at the Centre, and Ms. Margareta Olsson, Curator at the Centre, supported the views of Dr. Ferrada-Noli. They had all been involved in the examination of the first applicant at the Centre. The opinion refuted Dr. Voltaire Carlsson's opinion and noted it had been based solely on the first applicant's medical records and on telephone conversations with Dr. Arellano and Dr. Ferrada-Noli. She had never examined the first applicant herself. On 23 March 1993 the Board, taking all the above reports into account, rejected the applicants' request and revoked the order to suspend enforcement. It ordered, however, that prior to and during the enforcement of the expulsion, necessary consultations and cooperation with medical expertise take place. No appeal lay against this decision. On 2 April 1993 Dr. Arellano requested that the first applicant be admitted to the psychiatric clinic of St. Göran's Hospital in Stockholm as, in view of his post-traumatic stress syndrome and depression, he was in immediate need of treatment. On 16 April 1993 the first applicant was admitted to the mental hospital of Beckomberga. On the same day the National Immigration Board stayed the enforcement of the expulsion order of 23 March 1993 pending the outcome of the application before the Commission. In a report of 12 May 1993 by Dr. Christina Lagerbäck, a psychiatrist and Deputy Senior Medical Officer at the hospital, the following is stated: (translation from Swedish) "This opinion is based on almost daily contact with [the first applicant] since he was admitted ... as well as on discussions with [the second applicant] and his stepmother ... Prior to his admission [the first applicant] had already for several months been isolating himself ..., partly fearing that someone would report him in order to have him expelled, partly, as a result of increasing ... apathy, hardly responding when he had been spoken to. He had also isolated himself emotionally from his closest relatives. He had been unable to take part in the care of his one-year-old daughter, or to engage himself in [activities with] her. He had been suffering from a constant severe anxiety which occasionally would develop into panic. He further suffered greatly from insomnia, repeated nightmares in which he re-experienced his torture and imprisonment in Peru. For several weeks before his admission [he] had been having suicidal thoughts and had on several occasions put his suicide plans into words. His wife and stepmother had therefore been watching him day and night. Despite his difficult state his relatives managed, first after several weeks, to convince him to seek care in a psychiatric clinic. In view of the suicide risk [the first applicant] was under supervision around the clock immediately on his admission. This surveillance, however, brought back memories from previous traumatic situations when he had been guarded. He therefore showed an extreme watchfulness and his anxiety and insomnia increased. Despite sedatives and hypnotic substances [he] hardly dared to leave his room for several days and hardly slept at all. After five days, during which staff attempted to establish an emotional contact with him, his anxiety diminished somewhat. In order to relieve [him] from the surveillance, which had made him re-experience previous traumas so intensely, and as he then was showing no suicidal plans, the degree of surveillance was lowered somewhat. The day after a long conversation with [him], his wife and stepmother, during which [his] desperate situation was discussed, he attempted to commit suicide on the ward by trying to strangle himself with an electricity cord. He was, however, spotted by staff, following which we had to reinstate around the clock surveillance despite the difficulties caused by this. [The first applicant] is now showing symptoms, which apart from [showing] his post-traumatic stress syndrome clearly indicate a real depression as well as symptoms bordering on psychosis. He is extremely inhibited and passive, does not speak spontaneously, responds after long delays, is unable to respond emotionally even to his closest relatives, often suffers from severe headaches and has difficulties both in eating and retaining food. At night he suffers from constant nightmares in which he re-experiences previous imprisonment and torture to such a degree that he fears falling asleep again. In the daytime he has had frightening visual experiences, which are assessed as being hallucinations. At present [he] has no hope for the future. He is convinced that, if returned, he will face a certain and painful death, probably together with [the other applicants]. He therefore sees a suicide as the only way out. He has constant suicidal thoughts and expresses intermittent plans to this end. He no longer has any hope for his own life, but thinks that his death might increase the possibility for [the other applicants] to obtain a residence permit. [The second applicant] is clearly also in a bad mental state. Due to [the first applicant's] incapability she has for a long time had to care for their daughter completely on her own. She has further watched over him around the clock for weeks in [their] home so as to prevent him from committing suicide. Now she is living with the constant risk of losing her husband through suicide. [She] has on several occasions contacted [the Child Care Centre], asking for ... assistance in the care of [her] daughter. In this situation [the daughter] runs a considerable risk of being hampered in her development. Her father has been isolating himself emotionally for months and now her mother is also wavering. In conclusion [the first applicant] is suffering from a posttraumatic stress syndrome as a result of his difficult experiences ever since his childhood and youth. At present he is also severely depressed and on the border of being psychotic. He is under treatment both by anti-depressants and neuroleptics, but the first-mentioned have so far had no effect at all. In view of the basic diagnosis, the reactive character of his depression and his stationary desperate..situation, the possibility to treat the depression with pharmaceutical preparations is considered very small. The suicide risk ... is considered as great. In 1991 he attempted suicide and recently carried out another serious attempt. ... He has no hope for the future, but fears it instead. He has constant suicidal thoughts as well as repeated and often abrupt suicidal plans. At present he accepts voluntary care, but should he wish to leave the ward, I would immediately have him taken into [compulsory] care in view of the great suicide risk. Should he be expelled, the suicide risk would, if possible, be even greater. Then there would exist a great risk that he would suffer a severe mental breakdown. I consider both [the first applicant's] and his [stepmother's] accounts of persecution, imprisonment and torture to be very plausible. I also agree in their assessment ... of the risk of torture or execution following a possible expulsion to Peru. I consider the possibilities [for the first applicant] to obtain adequate psychiatric care in his home country for [his] severe psychiatric disturbance as extremely doubtful. The obligation to hide and constantly change one's place of residence in the fear of torture, imprisonment and execution is ... not compatible with the [need] to receive adequate psychiatric care. ..."
Relevant domestic law A residence permit may be granted to an alien for humanitarian reasons (Chapter 2, Section 4, subsection 1, no. 2, of the Aliens Act). A request for a residence permit lodged by an alien, who is to be refused entry or expelled by a decision which has acquired legal force, may only be granted provided the request is based on new circumstances and the applicant is either entitled to asylum or there are weighty humanitarian reasons for allowing him to stay in Sweden (Chapter 2, Section 5, subsection 3). An alien may be refused entry into Sweden if he lacks a visa, residence permit or other permit required for entry, residence or employment in Sweden (Chapter 4, Section 1, no. 2). When considering whether to refuse an alien entry or to expel him, an examination must be made, pursuant to Chapter 8, Sections 1-4 of the Aliens Act, of whether he can be returned to a particular country or whether there are other special obstacles to the enforcement of such a decision. Any necessary instructions regarding the enforcement of an expulsion order shall be given by the Government or the National Immigration Board in their decisions (Chapter 4, Section 12). If an expulsion order or a decision refusing entry contains no instructions regarding its enforcement or if it is evident that the instructions cannot be complied with, the enforcing authority shall decide how to carry out the enforcement, provided it does not request an indication under Chapter 8, Section 13 of the Aliens Act (Chapter 7, Section 2 of the 1989 Aliens Ordinance (utlänningsförordning 1989:547)). The National Immigration Board shall review its decision, if it is incorrect, in view of new circumstances or for any other reason, provided it would not affect the alien negatively or be irrelevant to him (Chapter 7, Section 10). The National Immigration Board may, for special reasons, refer a request for asylum to the Government together with its opinion in the matter (Chapter 7, Section 11). If the enforcement is not subject to any obstacles under, inter alia, Chapter 8, Sections 1 and 2, an alien who has been refused entry or who is to be expelled is to be sent to his country of origin or, if possible, to the country from which he came to Sweden. If the decision cannot be put into effect in the manner indicated in subsection 1 or there are other special grounds for doing so, the alien may be sent to some other country instead (Chapter 8, Section 5). When considering a request for a residence permit lodged by an alien to be expelled according to a decision which has acquired legal force, the National Immigration Board (and in certain cases also the Government) may stay execution of that decision. For particular reasons the Board may also otherwise stay execution (Chapter 8, Section 10). If the enforcing authority finds that enforcement cannot be carried out or that further information is needed, the authority is to notify the National Immigration Board accordingly. In such a case, the Board may decide on the question of enforcement or take such other measures as are necessary (Chapter 8, Section 13). Under the 1991 Ordinance on Residence Permits in Certain Cases (förordning 1991:1999 om uppehållstillstånd i vissa utlänningsärenden) an alien who has been staying in Sweden for more than eighteen months on 1 January 1992 may be granted a residence permit unless there are special reasons for not granting such a permit. The Ordinance entered into force on 1 February 1992.
COMPLAINTS 1.The applicants complain that, if they were to be returned to Peru, the first applicant would be subjected to treatment contrary to Article 3 of the Convention as a result of his present mental state. In view of his previous experiences of torture in Peru his expulsion to that country would cause a great risk that he would suffer from a psychosis or commit suicide. 2.The applicants further complain of the absence of a right of appeal against the decision of the National Immigration Board on 23 March 1993. They again invoke Article 3 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION The application was introduced on 23 March 1993 and registered on 8 April 1993. On 8 April 1993 the Commission decided, pursuant to Rule 36 of the Commission's Rules of Procedure, that it was desirable in the interest of the parties and the proper conduct of the proceedings not to return the applicants to Peru until the Commission had had an opportunity to examine the application. On 12 May 1993 the Commission decided to prolong the indication under Rule 36 until 9 July 1993. Following an extension of the time-limit, the Government's observations were submitted on 11 May 1993. The applicants' observations in reply were submitted on 3 June 1993.
THE LAW 1.The applicants complain that, if they were returned to Peru, the first applicant would be subjected to ill-treatment contrary to Article 3 (Art. 3) of the Convention as a result of his present state of health. Article 3 (Art. 3) of the Convention reads as follows: "No one shall be subjected to torture or to inhuman or degrading treatment or punishment." The Government submit that the applicants have not exhausted domestic remedies, as required by Article 26 (Art. 26) of the Convention, insofar as the applicants invoke circumstances different from those examined in the decision of the National Immigration Board on 23 March 1993. On the merits of the case, the Government point out that the mere fact that someone is suffering from an illness does not constitute sufficient grounds for the National Immigration Board to revoke the Government's expulsion order of 8 July 1992 and grant a residence permit. A residence permit on humanitarian grounds could be granted only if it were based on new circumstances not previously examined in the case concerning the expulsion and if there were exceptional humanitarian reasons. The Government submit that, in concluding that the enforcement of the expulsion order would not violate Article 3 (Art. 3) of the Convention, the National Immigration Board based itself primarily on the expert opinions submitted to it, and found no humanitarian grounds in the case. The Government contend that it is not unusual for psychiatrists to reach different conclusions about the mental state of an asylum seeker and the implications of a possible expulsion. The Commission should rely on the good faith of the authorities in their assessment of whether there are substantial risks that an asylum seeker might, as a result of an enforcement, injure himself or commit suicide. For this purpose the first applicant's mental state at the time of the enforcement of the expulsion order will be decisive. The Government refer to the case of Cruz Varas and Others v. Sweden (Eur. Court H.R., judgment of 20 March 1991, Series A no. 201, p. 31, paras. 83-84) and argue that, as held by the Court in that case, enforcement of the expulsion order in the present case would not attain the threshold of severe ill-treatment proscribed by Article 3 (Art. 3), provided that the instructions given by the National Immigration Board in its expulsion order are observed. According to these instructions medical staff should take part in the enforcement of the expulsion so as to ensure that due regard will be had to the first applicant's health. The police authority responsible for the enforcement is under an obligation to see to it that the instruction is complied with. However, in view of the fact that the applicants are in hiding no special arrangements have so far been made to deal with the first applicant's need for psychiatric treatment prior to and during the expulsion. Nor can the Government obtain any guarantees that he will receive psychiatric treatment upon his return to Peru and it is clearly not for the Swedish authorities to ensure that the first applicant receives such care. Should the applicants wish to have the first applicant undergo psychiatric treatment there, it is evident that such care would be available. The applicants refute the Government's assertion that they are in hiding. It is highly unlikely that the enforcing police authority would be held responsible, should the instructions by the National Immigration Board not be complied with. The Government's reference to the possibility of the first applicant seeking psychiatric care in Peru upon his return is theoretical, as he is not suffering from a mental illness, but from a post-traumatic stress syndrome caused by his previous torture experiences in Peru and his fear of again being subjected to similar treatment. The applicants contend that the enforcement of the expulsion order would violate Article 3 (Art. 3) in view of the great risk that the first applicant would suffer from a psychosis or commit suicide. They refer, in particular, to the psychiatric reports of 15 October 1992 and 23 February 1993 by Dr. Arellano, the report of 11 December 1992 by the Swedish Centre for Torture Victims and the psychiatric report of 12 May 1993 by Dr. Lagerbäck. The Commission refers to the fact that under Article 26 (Art. 26) of the Convention it may only deal with a complaint once all domestic remedies have been exhausted, according to the generally recognised rules of international law. An applicant must make normal use of remedies likely to be effective and adequate in respect of the matters complained of (cf. No. 10978/84, Dec. 14.10.86, D.R. 49 p. 144  with further references). The burden of proving the existence of available and sufficient remedies lies upon the State (Eur. Court H.R., Deweer judgment of 27 February 1980, Series A no. 35, p. 15, para. 26). The Commission observes that, since the decision of the National Immigration Board of 23 March 1993, the first applicant's mental health could be said to have deteriorated further. The applicants in their second asylum request have invoked that deterioration as an obstacle to his expulsion to Peru. Although the National Immigration Board subsequently stayed the enforcement of the expulsion order pending the outcome of the present application before the Commission, it has not proceeded to an ex officio review of the order in accordance with Chapter 7, Section 10 of the Aliens Act. In these circumstances, it appears to the Commission that a further request by the applicants for a residence permit on humanitarian grounds to the National Immigration Board would lack any prospects of success. It cannot therefore be regarded as an "effective" remedy for the purposes of Article 26 (Art. 26) of the Convention. It follows that the Government's objection under this provision must be rejected. The Commission has made a preliminary examination of the applicants' complaint under Article 3 (Art. 3) of the Convention in the light of the submissions by the parties. It considers that it raises questions of fact and law of such a complex nature that their determination requires an examination on the merits. The complaint cannot therefore be declared inadmissible as being manifestly illfounded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other reason for declaring the complaint inadmissible has been established. 2.The applicants further complain of the absence of a right of appeal against the decision of the National Immigration Board. They point out that such a right of appeal was created as a result of the settlement in the case of Bulus v. Sweden (No. 9330/81, Comm. Report 8.12.84, D.R. 39 p. 75), but that this remedy no longer exists. They again invoke Article 3 (Art. 3) of the Convention. The Commission considers that the complaint falls to be considered under Article 13 (Art. 13) of the Convention, which reads as follows: "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 Commission considers this complaint to be closely connected to the complaint admitted above under Article 3 (Art. 3). It also raises questions of fact and law of such a complex nature that their determination requires an examination on the merits. The complaint cannot therefore be declared inadmissible as being manifestly illfounded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other reason for declaring the complaint inadmissible has been established. For these reasons, the Commission, by a majority, DECLARES THE APPLICATION ADMISSIBLE, without prejudging the merits of the case. Secretary to the Commission President of the Commission (H.C. KRÜGER) (C.A. NØRGAARD)