CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 29 novembre 1993

.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. 21056/92                       by Mats CASSEGÅRD                       against Sweden         The European Commission of Human Rights sitting in private on 29 November 1993, the following members being present:              MM.    C.A. NØRGAARD, President                  S. TRECHSEL                  A. WEITZEL                  J.-C. SOYER                  H.G. SCHERMERS                  H. DANELIUS            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  G.B. REFFI                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA              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 15 September 1992 by Mats CASSEGÅRD against Sweden and registered on 11 December 1992 under file No. 21056/92;         Having regard to the observations submitted by the respondent Government on 4 June and 14 September 1993 and the observations in reply submitted by the applicant on 19 August 1993;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:   THE FACTS         The applicant is a Swedish citizen, born in 1965 and resident at Nässjö, Sweden.   He is at present detained at the Mariefred Prison (Kriminalvårdsanstalten Mariefred). He is represented by Mr. Lars G. Mattson and Mr. Niclas Forsberg, lawyers in Stockholm.         The facts of the present case, as submitted by the parties, may be summarised as follows.   Particular circumstances of the case         On 10 May 1991 the applicant was convicted by the District Court (tingsrätten) of Eksjö of a number of offences, including arson and aggravated theft, and was sentenced to four years and six months' imprisonment.         The judgment was upheld by the Göta Court of Appeal (hovrätten) on 3 July 1991. Leave to appeal was refused by the Supreme Court (Högsta domstolen) on 23 August 1991.         The applicant had been detained on remand as of 19 March 1991. After the conviction and sentence had acquired legal force he was placed in the Mariefred Prison.         In September 1991 the applicant was granted a guarded short-term leave to visit his mother in the hospital at Nässjö. The mother suffered from cancer. The applicant spent about four hours with his mother.         In November 1991 the applicant again requested leave to visit his mother. This request was granted on 27 November 1991 on the terms that the applicant would be transferred provisionally from the Mariefred Prison to the Detention Centre (häktet) at Värnamo, from where he would be able to have guarded short-term leave to visit his mother in the hospital. The distance between Värnamo and Nässjö is less than 100 kilometres.         On the same day, however, the applicant withdrew his request, since he could not accept being guarded by staff of the Detention Centre.         Subsequently, however, the applicant was granted short-term leave with guards from the Mariefred Prison. He then visited his mother on 2 December 1991, spending about three hours with her. The distance between the Mariefred Prison and the hospital at Nässjö is about 300 kilometres.         On 23 December 1991 the applicant requested that he be granted leave to visit his mother on 13 January 1992 on the same terms as those on which his second leave had been granted. This request was refused by the Prison Governor on 9 January 1992.         On 14 January 1992 the applicant appealed against this decision to the National Prisons and Probations Administration (Kriminal- vårdsstyrelsen), which on 21 January 1992 rejected the appeal.   In its decision the Administration stated as follows:         (translation)         "The Administration has been informed by the Prison about       the following.   [The applicant] was granted leave in       December 1991 to visit his mother.   The Prison is regularly       in touch with the doctor who is responsible for the       treatment of [the applicant's] mother.   According to this       doctor the mother's state of health is stable.   Naturally       [the applicant] will be granted further leave in case his       mother's state of health should deteriorate.         In the present circumstances there is no special reason to       grant [the applicant] leave."         The applicant was orally informed of the decision on 21 January 1992.         The time when the applicant appealed against this decision is in dispute between the parties. The applicant submits that he placed the appeal in the letter-box of the prison on 21 January 1992, while the Government contest that this was done before 22 January 1992 and state that the applicant might in fact have delayed the transmission of the appeal until some time later. The appeal was dated 22 January 1992.         According to Swedish procedural law the applicant should have sent his appeal to the National Prisons and Probations Administration, whose task it was to examine whether the appeal had been lodged within the applicable time-limit.   However, the applicant sent the appeal to the Administrative Court of Appeal (kammarrätten) of Jönköping.         On 24 January 1992 the applicant's mother was discharged from the hospital and on 2 February 1992 she was re-admitted.         On 3 February 1992 the Administrative Court of Appeal received the appeal and sent it to the National Prisons and Probations Administration for an examination of whether it had been lodged in time.         On 4 February 1992 the National Prisons and Probations Administration received the appeal. On the same day it attempted to obtain information concerning the applicant's mother's state of health. She died, however, on 5 February 1992 before such information could be procured.         On 13 February 1992 the applicant, having been granted leave, attended his mother's funeral.         On 2 March 1992 the applicant requested that his appeal should be examined.   On 6 March 1992 the National Prisons and Probations Administration re-examined the matter and decided that no further action was called for.         On 15 April 1992 the National Prisons and Probations Administration, after the applicant had again requested an examination of his appeal, forwarded the case-file to the Administrative Court of Appeal.   On 24 April 1992 the Court decided that, in view of the applicant's mother's death, his application for leave no longer had any purpose and that his appeal therefore did not require any decision by the Court.         On 11 May 1992 the applicant lodged a further appeal with the Supreme Administrative Court (Regeringsrätten).   On 7 July 1992 the Supreme Administrative Court decided not to grant leave to appeal.         The applicant also complained to the Parliamentary Ombudsmen (Riksdagens justitieombudsmän) about the manner in which the authorities had dealt with his request for leave, but on 4 August 1992 the competent Ombudsman decided not to take any action.         The inmates of the Mariefred Prison can leave their outgoing correspondence in a letter-box which is emptied every morning. The mail leaves the prison every weekday at around 4.00 p.m. The mail is not registered by prison staff.   Relevant domestic law         Provisions concerning the treatment of prisoners are found in the 1974 Act on Correctional Treatment in Institutions (lag 1974:203 om kriminalvård i anstalt) and the 1974 Decree containing Certain Regulations regarding the Implementation of the Act on Correctional Treatment in Institutions (förordning 1974:248 om kriminalvård i anstalt). The National Prisons and Probation Administration has issued more detailed provisions (anstaltsföreskrifter) in accordance with the Decree.   General advice (allmänna råd) concerning leave has also been issued.         Section 9 of the 1974 Act provides that prisoners shall be treated with respect for their human dignity and with understanding for the special difficulties connected with imprisonment.         A prisoner may be granted short-term leave in order to facilitate his or her adjustment in the community, provided that there is no manifest danger of continued criminal activity or considerable danger that the leave be misused. Short-term leave may also be granted for other special reasons (Section 32, subsections 1 and 2).         Short-term leave may be made subject to such conditions as considered necessary, for instance concerning the place where the leave shall be spent. If close supervision is called for, it may be stipulated that the prisoner shall be placed under surveillance during the leave (Section 32, subsection 4).         According to Government Bill 1978/79:62 (pp. 20 et seq.), short-term leave for special reasons should not be granted unless it fulfils an essential purpose which cannot be achieved in any other way.         Under Section 12 of the 1974 Decree a prisoner who has been sentenced to a minimum of two years' imprisonment shall not, unless there are special reasons, be granted short-term leave in accordance with Section 32 para. 1 of the Act prior to having served six months of his imprisonment, including any time spent in detention on remand.         According to Section 106 of the provisions issued by the National Prisons and Probations Administration, short-term leave may be granted in order to enable an inmate to take care of a matter outside the institution, if the matter is of essential importance to him and cannot be taken care of during regular leave or in any other way.   Such special leave may be granted to enable an inmate to visit someone close to him who is seriously ill or to attend the funeral of such a person. Special leave shall not be permitted for any longer time than necessary in order to fulfil its purpose.   There are no provisions or established practice concerning how often a prison inmate should be allowed such special leave.   COMPLAINT         The applicant complains of a violation of Article 3 of the Convention in that he was not allowed to visit his mother before she died on 5 February 1992.   He refers, in particular, to the European Prison Rules, a Recommendation adopted by the Committee of Ministers of the Council of Europe in 1987.   Under para. 49, subpara. 2, of these Rules a prisoner shall be informed at once of the serious illness of a near relative. In such cases and "whenever circumstances allow" the prisoner should be authorised to visit the relative either under escort or alone.         The applicant further refers to notes by hospital staff showing that, before refusing the applicant's leave request on 9 January 1992, the Prison Governor did not verify the state of health of the applicant's mother.   This was only done on 10 January 1992. Although at that time the mother's condition had been stable, she continued to be seriously ill.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 15 September 1992 and registered on 11 December 1992.         On 29 March 1993 the Commission decided to bring the application to the notice of the respondent Government and to invite them to submit written observations on its admissibility and merits.         The Government submitted observations on admissibility and merits on 4 June and 14 September 1993.   The applicant's observations in reply were submitted on 19 August 1993.   THE LAW         The applicant complains of a violation of Article 3 (Art. 3) of the Convention in that his third request for short-term leave in order to visit his dying mother was refused.         Article 3 (Art. 3) of the Convention provides as follows:         "No one shall be subjected to torture or to inhuman or degrading       treatment or punishment."         The Government submit that, in so far as the applicant alleges a violation of Article 3 (Art. 3), his application should be considered incompatible ratione materiae with the provisions of the Convention.         The Government further address the question whether the applicant's complaint may be considered under Article 8 (Art. 8) of the Convention, which 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."         Should the application be examined under Article 8 (Art. 8), the Government recall that the applicant is an adult who presumably left his mother's home years ago. It could therefore be questioned whether his relationship with his mother at the relevant time was such as to fall within the field of "family life" protected by Article 8 para. 1 (Art. 8-1).   Considering that the detention of the applicant is as such compatible with Article 5 para. 1 (a) (Art. 5-1-a) of the Convention, it could also be questioned whether the applicant had any right under the Convention to visit his mother.         The Government contend that, in any case, the application is manifestly ill-founded.   The interference with the applicant's possible right under Article 8 (Art. 8) was in accordance with the law.   His possibilities to maintain and develop his relationship with his mother by means of visiting her while she was in hospital were necessarily affected by his prison sentence, which pursued the interests of public safety and was aimed at the prevention of disorder or crime, as well as the protection of the rights of others.   Since the refusal of the applicant's request for a third leave in fact served to enforce his prison sentence, the same legitimate aims justified that refusal.         The Government argue that the measure in question was proportionate to the aims pursued.   They recall that, although at the time of his third leave request he had only served some ten months of his prison term, the applicant had already been allowed to visit his mother twice. It is recalled that, as he had been dissatisfied with the arrangements of the first visit, the applicant was granted exceptionally favourable treatment during his second leave.   Moreover, between 9 January and the death of the applicant's mother the prison authorities did not receive any information from the hospital staff, the applicant himself or any of his relatives about his mother's re- admission or critical state of health. At least four staff members of the Mariefred Prison were in contact with the hospital during her hospitalisation. On 10 January 1992 one of the doctors had informed the Prison Governor that the applicant's mother's health had not deteriorated in any acute way. Had the prison received information to the contrary, short-term leave could have been granted immediately.         The Government furthermore question the date of the applicant's appeal to the Administrative Court of Appeal. They point out that, although the appeal was allegedly lodged on 21 January 1992, it was dated 22 January 1992.         In the above circumstances the Government contend that the authorities did not transgress the margin of appreciation allowed by Article 8 para. 2 (Art. 8-2) of the Convention.         The applicant submits that there did exist family life between him and his mother despite the fact that they lived apart. The National Prisons and Probations Administration had, on 21 January 1992, considered that the applicant was to be granted further leave, should his mother's condition deteriorate. The Administration thereby considered whether such leave could be harmful to other persons and society and answered this question in the negative. The fact that the applicant was not dangerous is supported by the fact that he had already been granted leave on two occasions, the second leave having been granted on exceptional terms.               The applicant recalls that, according to the decision of 21 January 1992, the Mariefred Prison was to be in regular contact with the doctor in charge of the care of the applicant's mother.   It appears, however, from the hospital notes that there was no such regular contact.         The applicant states that he appealed against the decision of 21 January 1992 on the same day by placing his letter in the relevant box for this purpose.         The applicant finally contends that he did inform the prison administration of his mother's re-admission to hospital.   No further information regarding her state of health was, however, obtained by the prison.         The Commission does not consider that the present case discloses any appearance of a violation of Article 3 (Art. 3) of the Convention. The matter of which complaint is   made does not amount to the kind of severe ill-treatment proscribed by this provision.         However, the Commission is of the opinion that the applicant's right to respect for his family life is at issue and that, therefore, Article 8 (Art. 8) of the Convention is applicable to the applicant's complaint about the refusal of short-term leave to make a third visit to his mother in hospital.         The Commission recalls that the notion of 'respect' enshrined in Article 8 (Art. 8) is not clear-cut. This is the case especially where the positive obligations implicit in that concept are concerned. Its requirements will vary considerably from case to case according to the practices followed and the situations obtaining in the Contracting States. In determinating whether or not such an obligation exists, regard must be had to the fair balance that has to be struck between the general interest and the interests of the individual as well as to the margin of appreciation afforded to the Contracting States (Eur. Court H.R., B. v. France judgment of 25 March 1992, Series A no. 232-C, pp. 47 et seq., paras. 44 et seq.).         In the present case the Commission must strike a balance between the general interest in ensuring execution of punishment and the applicant's individual interest in visiting a parent in a critical state of health.         The Commission first observes that the applicant was serving a prison sentence of four years and six months for, inter alia, arson and aggravated theft. Nevertheless, he had been granted leave to see his mother in hospital in September and December 1991, the last-mentioned leave on exceptionally favourable terms in that he had been guarded by staff of the Mariefred Prison, having refused the offer to be transferred to the Detention Centre at Värnamo.         The Commission next observes that in his third leave request the applicant demanded that he again be guarded by staff from the Mariefred Prison despite the considerable distance between that prison and the hospital where his mother was staying. This would undoubtedly have put an additional burden on the prison staff and there might well have been considerable practical problems connected with such arrangements.               The Commission further notes that the Prison Governor, when considering the applicant's third request on 9 January 1992, did not have at his disposal any information regarding a deterioration of the applicant's mother's state of health. Nor was any such information available to the National Prisons and Probations Administration, when it decided on the applicant's appeal on 21 January 1992. It is explicitly stated in the decision of that authority that, according to information received from the doctor in charge, the mother's state of health was stable and that, should it deteriorate, the applicant would be granted leave. The Commission notes in this regard that the mother was in fact discharged from the hospital on 24 January 1992 and that the prison authorities were apparently not informed of her subsequent re-admission on 2 February 1992.         Regarding the fact that the applicant's appeal against the decision of 21 January 1992 to refuse further leave could only be examined after the death of his mother, it has not been established why his appeal dated 22 January 1992 did not arrive at the Administrative Court of Appeal until 3 February 1992. There is no indication, however, that the prison authorities delayed its transmission.         Having regard to these various elements, the Commission finds that a fair balance was struck between the conflicting interests at stake in the present case. It considers that the competent authorities of the respondent State did not transgress their margin of appreciation in refusing the applicant's third leave request. The Commission concludes that there has been no lack of respect for the applicant's family life, and that, therefore, the application discloses no appearance of a violation of Article 8 (Art. 8) of the Convention.         It follows that the application must be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission, unanimously,         DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the Commission             President of the Commission          (H.C. KRÜGER)                          (C.A. NØRGAARD)