CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 7 décembre 1992

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                            AS TO THE ADMISSIBILITY OF                         Application No. 18275/91                       by F.B.M.                       against Sweden         The European Commission of Human Rights sitting in private on 7 December 1992, the following members being present:              MM.    C.A. NØRGAARD, President                  J.A. FROWEIN                  S. TRECHSEL                  F. ERMACORA                  G. SPERDUTI                  E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H.G. SCHERMERS                  H. DANELIUS            Mrs.   G. H. THUNE            Sir    Basil HALL            MM.    F. MARTINEZ                  C.L. ROZAKIS            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                    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 4 April 1991 by F.B.M. against Sweden and registered on 28 May 1991 under file No. 18275/91;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having regard to the observations submitted by the Respondent Government on 14 October 1992 and the observations in reply submitted by the applicant on 16 December 1991;         Having deliberated;         Decides as follows: THE FACTS   Particular circumstances of the case         The facts of the case, as submitted by the parties, may be summarised as follows.         The applicant is a citizen of Ecuador, born in 1954.   Before the Commission he is represented by Mr. Hans Göran Franck, a lawyer from Stockholm and a member of the Swedish Parliament.         The applicant arrived in Sweden on 6 March 1990.   On 13 March 1990, he applied for a residence and work permit relying mainly on the fact that his father and mother and ten out of a total of fourteen brothers and sisters were living in Sweden; most of them had come to the country as refugees in 1972-73 and had been granted residence permits; the father and four of his children had also become Swedish citizens. The applicant stated that he had stayed some 14 years in Cuba where he had become a paediatrician. In Cuba he had also married a Cuban woman in 1983 and together they had a child born in 1985. He had been compelled to return to Ecuador in May 1989 as his student grant had expired. He had left his wife and child in Cuba but hoped to be able to reunite with them in Sweden as soon as his wife had terminated her studies in Cuba. He added that his request had also a political background but that he nevertheless invoked his family connections with Sweden.         The National Immigration Board (Statens invandrarverk, hereinafter "the Board") rejected the application on 28 May 1990 and ordered the applicant's expulsion (avvisning) to Ecuador unless he could show that he would be accepted in some other country.   In its decision the Board noted that the applicant's wife and child were still living in Cuba and that he had lived there himself until 18 May 1989. It concluded that the circumstances of the case were not such as to enable it to grant the application.         The applicant appealed to the Government invoking, inter alia, a medical certificate dated 8 June 1990 and signed by Mr. Hans Link, a professor of neurology. The certificate stated the following as regards the applicant's background. The applicant had encountered serious problems when he had returned to Ecuador as a result of his Cuban background: mainly numerous interrogations and great difficulties in being accepted for work. As a result of these harassments his Swedish family had decided to have him admitted to Sweden. However, before the applicant had time to leave Ecuador he was hit by a circulation disorder in the brain which paralysed the right side of his face and caused speech problems. He was treated for a short period of time at an Ecuadorian hospital and improved somewhat whereafter he left for Sweden where he applied for political asylum. As regards the applicant's physical condition the certificate stated that his right leg and arm were hit by a paralysis of medium severity, and that the right side of his face was slightly paralysed. It added that his condition had improved somewhat as a result of the physiotherapy given and that the treatment planned could further improve the applicant's condition. The certificate concluded:     (translation)         "... expulsion of the patient from Sweden will in all       probability have a number of extremely serious consequences       for the patient: social isolation and misery since, as a       matter of fact, his whole family is living in Sweden and       since he cannot obtain gainful employment in Ecuador for       political and medical reasons; continued oppression as the       patient will be viewed as a subversive element and       potential spy because of his Cuban past; and unfavourable       medical consequences as the patient will not, because of       his low social status, receive even the elementary care and       rehabilitation training which is necessary for improving       his condition and the possible restoration of his health.       I find that even very elementary and humanitarian and       medical and also political reasons will be ignored if the       patient is expelled to Ecuador."         The Government dismissed his appeal on 18 October 1990 stating that they found no reason to change the Board's assessment and that it was obvious that the applicant should not be granted a residence permit.         On 28 December 1990 the applicant, who was now represented by Mr. Franck, lodged a further application for a residence permit with the Board, this time relying also on political and humanitarian grounds. He also requested the Board to use its powers under the Aliens Act (utlänningslagen) and stop the enforcement of his expulsion to Ecuador.         In this application the applicant invoked, inter alia, the following as regards the political grounds.         The applicant's family had been politically engaged in the fight against misery and oppression in Ecuador for a long time.   They were all members of the "Partido Socialista Revolucionario Ecuadoriano". In 1972 his eldest brother José Bazurto was killed together with a person called Luis Salazar Jara while they were trying to organise the farmers. One of his cousins was sentenced to the severest penalty provided for by law, but he was freed after 7 years because of the intervention of Amnesty International and was subsequently authorised to take up domicile in Sweden.   Two elder brothers, Raúl and Ramón, were convicted in their absence by a special military tribunal, "Tribunal Especial", but managed to flee to Chile, via Peru, from where they continued to lead clandestine operations during the years 1972-1975.         In 1975 the highest body of the party decided that the situation had become so dangerous that it would be better for the family to leave the country for Cuba where its members would receive military training. In February 1975 the applicant and his sister Judith went to Peru to contact a representative of the Government of Cuba, Margarita Gutierrez.   After she had discussed with them the security aspects of their admission into Cuba, they could go back to Ecuador.   In August 1975, they received a message that they were welcome and on the 20th of that month they left for Cuba, via Peru. All their travel expenses were covered by the Cuban state.           In Cuba they were again interrogated as to their political and religious convictions and as to their academic studies.   After having accepted to undergo military training with a view to future actions in their respective home countries they were sent to "Instituto Pre- Universitario" in Siboney, in the County of Havana where they received their first military training.   After one year they were transferred to a school called "República Popular del Congo" in Artemiza, also in the County of Havana.   Here their military training was intensified. They stayed at this school for two years.         The applicant was thereafter given the opportunity of studying medicine at "Instituto Superior de Ciencias Médicas" in Santiago de Cuba.   During his studies military training was reduced to two hours daily.   After he had taken his degree as military doctor he performed certain services at a military regiment, "Camilo Cien Fuego".         The applicant hereafter studied paediatrics.   During these studies he continued his military training.         After he had passed his examination as a paediatrician, he was sent to a special department for assistance to liberation movements in the third world, where he was assigned, in particular, to study the behaviour of American soldiers.         During his stay in Cuba the applicant married a Cuban doctor and the couple had a child.   However, around 1986, when the child was one year old the couple separated, formal divorce being impossible as both were Catholics.         In August 1989, as a result of his having finished his studies, he was ordered to leave Cuba and to go back to Ecuador.         When he arrived in his home country the applicant started to look for work, but he met with blank refusals everywhere.   The military authorities subjected him to a number of different interrogations, both in Quito and in Guayaquíl. The authorities were very interested to know what he had seen in Cuba. They threatened to make him disappear without a trace if he did not cooperate with them, whereas he would receive the best possible employments if he did.   As he refused, he was subjected to harassment and threats of various kinds.   At the end the applicant could not stand the situation any longer and suffered a circulation disorder in the brain on 20 January 1990.         On 5 March 1990, he left Ecuador for Sweden in order to reunite with his mother and father and most of his brothers and sisters who were staying there.         With special regard to the humanitarian grounds, the applicant invoked amongst other things a medical certificate dated 11 December 1990 and signed by Professor Hans Link and Mr. Åke Sidén, a chief physician at Huddinge hospital. According to the certificate the applicant is still suffering from the effects of the previous circulation disorder in the brain. His right arm and leg are partly paralysed and so is, although to a lesser extent, the right side of his face. As regards the applicant's situation in Ecuador, if returned there, the certificate reiterated the conclusions reached by Professor Link in his certificate of 8 June 1990.           On 7 January 1991, the Board rejected the application.   The grounds for its decision read:         "Political grounds have been invoked in this case.   The       political grounds invoked do not give a right to asylum.         A medical certificate from Huddinge hospital has been       filed.   Special reasons of a humanitarian character are not       present.         The reasons concerning family ties have been examined       earlier in the expulsion case and have not been found to be       sufficient.         The application shall accordingly be rejected.         ...         This decision cannot be appealed."         The following information was supplied by the applicant to the Commission by letter of 3 May 1991.   His state of health, both physical and mental, has worsened rather than improved while he has been waiting for the enforcement of the expulsion decision due to a lack of adequate treatment; he has difficulties with his speech; he cannot move about without the assistance of another person and he needs to have his family around him; he is depressed but cannot contact a doctor because of the expulsion decision.   He has no possibilities to receive adequate treatment in Ecuador: the specialist treatment he requires is far too expensive and available help in acute situations insufficient as it does not provide the continuous follow-up which his condition requires. What is most important for his recovery is the social and human care which he receives from his family in Sweden. Such care would be impossible in Ecuador as he no longer has any relatives there.   No special measures seem to have been taken by the Swedish authorities to facilitate his return there.         The applicant has indicated that deportation may take place at any time.   The situation in Ecuador         Ecuador is a country populated by some 10 million people. Its present democratic constitution came into force on 10 August 1979 after a 9 year period of civil and military dictatorship. The new constitution has been modelled on that of the United States of America. The Congress is since 1988 dominated by the "Isquierda Democrática", which could be described as a liberal social democratic party.         The general situation of the country has been described by the Swedish Government as follows:         As a result of an expanding oil export industry, Ecuador's GNP per capita has increased considerably during recent years. Although unemployment rates are uncertain, unemployment or underemployment seem to affect a large proportion of the population. Average life expectancy is now exceeding 65 years of age. The ratio of doctors is approximately one to 870 persons. A social security system exists, but there may be some doubt as to its efficiency. Although there still are problems - e.g. with respect to Indians, the conditions in prisons and ill- treatment, especially in the countryside - the human rights situation in Ecuador has improved considerably in recent years.   Immigration to Sweden         The Swedish Government have submitted the following information as regards immigration to Sweden, in particular with regard to that from Ecuador:         During the period from July 1990 to June 1991 about 24,000 aliens applied for a residence permit in Sweden. In 1990, 31 Ecuadorians requested a residence permit in Sweden.         In 1990 the immigration authorities dealt with twenty cases concerning persons from Ecuador. Seventeen of them did not succeed in obtaining residence permits in Sweden. The rejection rate during 1990 with regard to presumptive immigrants from Ecuador was thus 85 per cent. As a comparison, the rejection rates with regard to Colombia, El Salvador and Peru were 23, 21 and 49 per cent, respectively, during 1990.   COMPLAINTS   1.     The applicant complains that his expulsion to Ecuador would constitute a violation of Article 3 of the Convention in that he would be exposed to treatment contrary to this provision on account of his political background, his state of health and his family conditions.   2.     He also claims that the expulsion decision violates Articles 6 as he could not challenge it before a court.   3.     He finally maintains that he did not have an effective remedy before a national authority in respect of his complaints under the Convention.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 4 April 1991. On 12 April 1991 the Commission rejected a request from the applicant for assistance under Rule 36 of the Commission's Rules of Procedure in order to prevent his expulsion to Ecuador. The application was registered on 28 May 1991.         On 7 June 1991 the Commission decided to give notice of the application to the respondent Government and to invite them to submit observations in writing on the admissibility and merits of the application.         On 14 October 1991 the Government submitted their observations to which the applicant replied on 16 December 1991.     THE LAW   1.     The applicant complains that his expulsion to Ecuador would be contrary to Article 3 (Art. 3) of the Convention in that he would be exposed to treatment contrary to this provision on account of his political background, his state of health and his family conditions. Article 3   (Art. 3) reads:         "No one shall be subjected to torture or to inhuman or degrading       treatment or punishment."         The Government question whether the applicant has exhausted domestic remedies in the manner required by Article 26 (Art. 26) of the Convention. They emphasise that a new application for a residence permit may at any time be lodged with the Board which will be under a duty to examine the application in order to ascertain if such a permit should be granted on account of new circumstances. They state that, in view of this, it could be argued that domestic remedies cannot be exhausted until the applicant has actually been expelled from Sweden.         The Commission is not convinced of this reasoning. Under Article 26 (Art. 26) an applicant must only exhaust remedies which are apparently effective and sufficient (see, inter alia, No. 9697/82, Dec. 7.10.83, D.R. 34 p. 131). A new application for a residence permit could only be considered an effective remedy if the applicant alleged the existence of new relevant circumstances. In the present case, the applicant has not invoked any new circumstances before the Commission but only reiterated and developed the arguments which he submitted to the Board already in the application dated 28 December 1990. Furthermore, the Government have not provided any information to the effect that the practice of the Board in cases such as the present has changed in the meantime. Accordingly, a further request to the Board reiterating the same arguments as those contained in the earlier application cannot be considered as an effective remedy within the meaning of Article 26 (Art. 26) of the Convention. In addition, it is constant case-law that a person facing extradition or expulsion to a foreign state may, where the measure is imminent, claim to be a victim of a violation of the Convention even before the actual expulsion, e.g. if the measure might expose him to a serious risk of treatment contrary to Article 3 (Art. 3) of the Convention in the country to which he is to be returned (see, inter alia, No. 10479/83, Dec. 12.3.84, D.R. 37 p. 158; Eur. Court of H.R., Vilvarajah and Others judgment of 30 October 1991, Series A No. 215, p. 34, para. 103).         The Commission accordingly concludes that the applicant can claim to be a victim of the alleged violation of Article 3 (Art. 3) of the Convention although he has not been expelled to Ecuador. It also finds that he has exhausted domestic remedies in the manner prescribed by Article 26 (Art. 26) of the Convention.         As regards the seriousness of the risk of treatment contrary to Article 3 (Art. 3) the applicant has stressed the following: first, that he is perceived as a potential enemy of the Ecuadorian Government as a result of his military training in Cuba and his family's political involvement in Ecuador; secondly, that he would not be able to take care of himself in Ecuador because of the paralysis which has affected his right side and which makes it difficult for him to move without assistance and to talk; finally, as he no longer has any relatives in Ecuador he cannot depend on his family for the treatment and care which his physical condition requires. He maintains that, in view of his political background and family situation, he faces a serious risk of not receiving necessary care and assistance if returned to Ecuador. As most of his family live in Sweden it is in this country that he would have the best possibilities to deal with his handicaps.          With regard to the political reasons invoked, the Government stress that the applicant has never applied for political asylum in Sweden. Considering what the Government know about the situation in Ecuador, they find it highly unlikely that the applicant would be subject to any harassment there today, even assuming that his story as regards his background is true - something which is not proved. As regards the humanitarian grounds invoked, the Government maintain that Article 3 (Art. 3) of the Convention should be interpreted restrictively and that the Article cannot oblige the State concerned to grant a residence permit to any person within its jurisdiction who needs medical treatment or who finds it easier to support him- or herself financially there. They also observe that the assessments of the social, economic and political situation in Ecuador made in the medical certificates submitted by the applicant are presumably based mainly on the applicant's own account of the situation in the country. They finally note that the applicant was able to travel by himself from Ecuador to Sweden and his state of health does not appear to have worsened after this journey. If he were to require assistance during the return journey such assistance would be provided by the Swedish authorities. Taking into account that the Convention contains no rights to health or medical care of a certain standard, nor any right to gainful employment, they do not find it established that his physical condition prevents his undertaking the home voyage or could cause him such economic or social hardships in Ecuador, which is a democratic country with an existing health care and social security system and a developing economy, that his expulsion would amount to a violation of Article 3 (Art. 3).         The Government maintain that the fact that most of the applicant's relatives reside in Sweden does not alter the above conclusion. The applicant is 36 years old and has founded a family of his own, although his wife and child are still in Cuba. Judging from the information supplied by the applicant after his arrival in Sweden, his intention seems to have been to resume family life as soon as his wife finished her education in Cuba.         The applicant has questioned whether Ecuador could really be called a democracy and whether the health care and social security system there is sufficiently developed, inter alia as regards the number of doctors. He has also stressed that he was only able to travel from Ecuador to Sweden as a result of the help he received from a niece and from the airline personnel; he could never have undertaken the travel without assistance. He has also replied that it was only on account of a mistake due to his speech problems that his first application for a residence permit was interpreted as invoking merely family reasons.         The Commission recalls that the Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations including Article 3 (Art. 3), to control the entry, residence and expulsion of aliens, and furthermore that the right to political asylum is not contained in the Convention or its Protocols (see, inter alia, the above mentioned Vilvarajah and Others judgment, p. 34, para. 102). However, whereas the expulsion of a an alien may give rise to an issue under Article 3 (Art. 3), and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned faces a real risk of being subjected to torture of to inhuman or degrading treatment or punishment in the country to which he is returned, a mere possibility of ill-treatment is not in itself sufficient in this context (ibid. pp. 34 and 36, paras. 103 and 107). Furthermore, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 (Art. 3) (ibid. p. 37, para. 111).         The Commission has examined the applicant's allegation of possible ill-treatment if returned to Ecuador in the light of the above case-law. The Commission accepts that the applicant's return to Ecuador could involve considerable hardships. However, in the circumstances of the case it does not find that there are substantial grounds for believing that he is faced with a real risk of being subjected to treatment contrary to Article 3 (Art. 3) if returned to that country. In reaching its decision the Commission has in particular considered that neither the applicant's own nor his family's political background can today, in the light of the present situation in Ecuador, warrant the conclusion that the applicant would be subjected to harassment or excluded from existing medical care or social benefits in Ecuador in a manner which would amount to inhuman or degrading treatment. In this context it has also noted that the Swedish authorities would provide the applicant with the assistance required to enable him to undertake the long journey back in safe conditions.         The Commission accordingly concludes that the applicant's complaint under Article 3 (Art. 3) of the Convention has to be rejected as being manifestly ill-founded in accordance with Article 27 para. 2 (Art. 27-2) of the Convention.         As regards the applicant's reliance on his relations with his mother and father and brothers and sisters in Sweden, the Commission observes the following. Considering its conclusion above and the fact that the applicant has founded a family of his own - even if he seems to have separated from his wife, who appears presently to be in Cuba with their child - his relationship with his family in Sweden cannot, for the purposes of the Convention and, in particular Articles 3 and 8 (Art. 3, 8), be said to extend to more than ordinary emotional ties. Taking into account the important considerations relating to the proper enforcement of immigration controls the Commission cannot find that the existence of these ties could have as effect that his expulsion from Sweden would amount to a violation of the Convention (cf., inter alia, No. 12122/86, Dec. 16.10.86, D.R. 50 p. 268).         It follows that this aspect of his complaint must also be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.     The applicant also complains about the absence of any court review of the expulsion decision and alleges a violation of Article 6 (Art. 6) of the Convention.         The Commission recalls, however, that according to established case-law, Article 6 (Art. 6) does not apply to the procedure for expulsion of an alien (see, inter alia, No. 8118/77, Dec. 19.3.81, D.R. 25 p. 105).         This complaint is therefore incompatible, ratione materiae, with the provisions of the Convention and must be rejected according to Article 27 para. 2 (Art. 27-2) of the Convention.   3.     The applicant finally alleges a violation of Article 13 (Art. 13) of the Convention in that he claims not to have had any effective remedy before a national authority in respect of the decision to expel him to Ecuador.         The Commission recalls that Article 13 (Art. 13) requires that any individual who has an arguable claim to be the victim of a violation of the rights set forth in the Convention should have a remedy before a national authority in order both to have his claim decided and, if appropriate, to obtain redress (see, inter alia, Eur. Court H.R., Leander judgment of 26 March 1987, Series A No. 116, pp. 29-30, para. 77 and Boyle and Rice judgment of 27 April 1988, Series A no. 131, pp. 23-24, paras. 52 - 55).         The Commission recalls that it has rejected the applicant's complaints as manifestly ill-founded on the ground that it has not found either that there are substantial grounds for believing that he is faced with a real risk of being subjected to treatment contrary to Article 3 (Art. 3) of the Convention if returned to Ecuador or that his family ties with relatives in Sweden are such that his expulsion would amount to a violation of the Convention. Against this background the Commission does not consider that the applicant's complaints can be described as "arguable" for the purposes of Article 13 (Art. 13) of the Convention.         It follows that this part of the application is also manifestly ill-founded and has to be rejected in accordance with Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission by a majority         DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the Commission                President of the Commission         (H.C. KRÜGER)                                (C.A. NØRGAARD)