CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 14 septembre 1995

.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. 28392/95                       by Jose Luis VELITA FLORES                       against Sweden         The European Commission of Human Rights sitting in private on 14 September 1995, the following members being present:              MM.    S. TRECHSEL, President                  H. DANELIUS                  C.L. ROZAKIS                  E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H.G. SCHERMERS            Mrs.   G.H. THUNE            Mr.    F. MARTINEZ            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  E. KONSTANTINOV                  D. SVÁBY                  G. RESS                  A. PERENIC                  C. BÎRSAN                  P. LORENZEN              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 6 March 1995 by Jose Luis VELITA FLORES against Sweden and registered on 31 August 1995 under file No. 28392/95;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;   THE FACTS         The applicant is a Peruvian citizen, born in 1970 and currently in hiding in Sweden. He is represented by Mr. Per Stadig, a lawyer in Stockholm.   Particular circumstances of the case         The applicant left Peru in November 1992, allegedly fearing harassment and arrests on suspicions of terrorism. He arrived in Sweden on 30 November 1992 and requested asylum on 2 December 1992. In his asylum request he alleged that his life would be in danger, should he be returned to Peru. He alleged that he had been working as a press and propaganda secretary to the youth branch of a legally recognised party. As a result he had been harassed both by the police and a terrorist group. He had been arrested on 2 July 1992 in connection with a demonstration and accused of being a terrorist. He had been released after three days following pressure mounted by a students' organisation. In September 1992 his home had been searched and he had received anonymous death threats by mail. His father, who had refused to continue cooperating with the terrorists, had allegedly been killed. His father's activities had been the cause of the harassment of himself. He had left Peru with a valid passport and with the help of a friend at the passport control.         On 27 May 1993 the applicant's asylum request was rejected after an oral hearing before the National Immigration Board (Statens invandrarverk). The Board considered that the arrest invoked by the applicant had been of a short duration and bore the character of an individual incident. Having regard to his activities in Peru, the Board found that his fears concerning a return to that country were exaggerated. The Board also noted that on arrival in Sweden the applicant had possessed no passport. When reporting the loss of his passport to the Swedish police, he had stated having entered the country as a tourist. This contradicted his subsequent asylum request.         In his appeal to the Aliens Appeals Board (Utlänningsnämnden) the applicant submitted a certificate of membership in Partido Aprista Peruano ("APRA") and a certificate showing that he was studying at a university in Lima. He submitted that, if expelled, he would immediately be arrested and accused of being a member of the terrorist organisation "The Shining Path" ("Sendero Luminoso").         On 2 May 1994 the Aliens Appeals Board (Utlänningsnämnden) rejected the applicant's appeal.         In August 1994 the applicant requested a residence permit in Sweden on humanitarian grounds, referring to a medical report stating that he was suffering from depression and paranoia but noting that he had not disclosed any concrete suicidal plans.         On 8 September 1994 the Aliens Appeals Board rejected the applicant's new request after having heard Dr. Peter Nordström, a psychiatrist and one of the experts normally consulted by the Board in cases of this kind (förtroendeläkare).         Soon thereafter the applicant lodged a further request with the Aliens Appeals Board for a residence permit on humanitarian grounds, again invoking his mental state. He had again sought treatment in a hospital for the mentally ill and had been considered to suffer from a paranoid psychosis.         The Aliens Appeals Board again heard Dr. Nordström, whose report of 24 October 1994 contains, inter alia, the following information: On 13 September 1994 the applicant had, accompanied by his sister, sought emergency psychiatric care after he had attempted to throw himself in front of a bus and on another occasion in front of a subway train. He had also attempted to slash his wrists. His relatives and friend had allegedly prevented him from carrying out the suicide attempts. The doctor examining him after the slashing-incident had noted a 20 centimetre scar on one of his arms caused by "scratching" by a piece of glass. The applicant had been admitted for care but had left the hospital on 21 September 1994.         In his report Dr. Nordström concluded that there existed certain, at least temporary, medical obstacles to enforcing the expulsion order concerning the applicant. He considered that enforcement of the expulsion order would entail a certain risk of suicidal acts on the part of the applicant. Dr. Nordström therefore indicated that psychiatric expert assistance would seem necessary during an enforcement attempt and that further care of the applicant should possibly be planned in Peru.         On 12 December 1994 the Aliens Appeals Board rejected the applicant's request. It noted that he had been voluntarily admitted for hospital care in Sweden and had been granted a number of day and weekend leaves from the hospital where he had been staying. Moreover, the medication and care which he was in need of would also be available in Peru.         Subsequently the applicant requested a reconsideration of the Board's decision of 12 December 1994, now invoking a medical report of 4 January 1995 according to which he had been suffering from a psychosis ever since he had been notified of that decision.         On 2 March 1995 the Aliens Appeals Board dismissed the request for a reconsideration of its decision of 12 December 1994 and rejected the applicant's claim in so far as it amounted to a renewed request for a residence permit. In the last-mentioned respect the Board in essence upheld the reasons invoked in its decision of 12 December 1994.         According to a further medical report of 21 March 1995 by Dr. Michael Brune, a psychiatrist and neurologist, the applicant's mental state had further deteriorated. He had been suffering from a psychosis since the summer of 1994. He had become increasingly paranoid, suspecting, for instance, that his sister was serving him human meat. He had continuously been expressing suicidal thoughts. He was clearly in need of hospital care, but Dr. Brune had hesitated to order his compulsory mental care in view of the trauma this could cause. Dr. Brune concluded that enforcement of the expulsion order would further aggravate the applicant's mental state.         According to a further report of 24 March 1995, the applicant had visited Dr. Brune on that day. During his visit he had seen police cars and officers in the street and had immediately feared being apprehended in Dr. Brune's office. He had then shown Dr. Brune a razor blade with which he had threatened to "slice himself up", should the police enter the premises. Eventually, he had been convinced by Dr. Brune that the police had not been called there to apprehend him and had agreed to hand over the razor blade to Dr. Brune.         The following information appears in a further report by Dr. Brune dated 21 June 1995: On 12 June 1995 the applicant had voluntarily sought care at the Emergency Psychiatric Clinic of the Karolinska Hospital and had been admitted. On 13 June 1995 he had been transferred to another hospital but there he had been informed that he should return to the Karolinska Hospital. Meanwhile, the police had received information about his care and whereabouts. On his return to the Karolinska Hospital he had either noticed the presence of police officers awaiting his return or had a paranoid illusion. As a result he had left the hospital area and instead gone to stay with his sister. On 18 June 1995 the applicant and his sister had visited Dr. Brune. According to the sister, the applicant had been carrying a knife in her flat. He had been threatening her and her baby daughter with the knife and she had had to lock her bedroom door so as to be safe in the night- time. He had failed to follow medical prescriptions and had accused her and Dr. Brune of being "traitors".         In his report of 21 June 1995 Dr. Brune concluded that the applicant's situation could have catastrophic consequences for himself or others, unless he could be given adequate care. He was clearly in need of institutional psychiatric care but Dr. Brune estimated that resorting to police assistance so as to have him compulsorily placed in such care would not be in the applicant's best interests.         According to a letter from the President of the Peruvian Association of Physicians to Dr. Brune dated 16 June 1995, a poor person without a family suffering from chronic schizophrenia has no possibility of obtaining adequate care in Peru.   Relevant domestic law         According to the 1989 Aliens Act (utlänningslag 1989:529), a residence permit may be granted to an alien for humanitarian reasons (chapter 2, section 4, subsection 1 (2)). A so-called new request for a residence permit may only be granted if the request, lodged by an alien who is to be refused entry or expelled by a decision which has acquired legal force, is based on new circumstances and provided the applicant is either entitled to asylum or there are weighty humanitarian reasons for allowing him or her to stay in Sweden (chapter 2, section 5, subsection 3). As from 1 July 1994 a request pursuant to chapter 2, section 5, shall be lodged with the Aliens Appeals Board.         When considering whether to refuse an alien entry or to issue an expulsion order, the authorities must examine, pursuant to chapter 8, sections 1-4, of the Aliens Act, whether the alien 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 order shall be given by the Government, the Aliens Appeals Board or the National Immigration Board in their decisions (chapter 4, section 12).         If the enforcement meets no obstacles under chapter 8, an alien is to be expelled or returned to the country of origin or, if possible, to the country from which he or she came to Sweden. If the decision cannot be enforced in one of these manners or if special reasons exist, the alien may be sent to another country (chapter 8, section 5).         If the enforcing authority finds that the enforcement cannot be carried out or that further information is needed, it shall 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).         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 proceed in accordance with chapter 8, section 13 of the Aliens Act (chapter 7, section 2 of the 1989 Aliens Ordinance (utlänningsförordning 1989:547)).         When considering a new request for a residence permit lodged by an alien who is 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 the enforcement of that decision. For particular reasons the Board may also otherwise stay enforcement (chapter 8, section 10). Similarly, the Aliens Appeals Board may decide to stay the enforcement of a previous expulsion order.         The National Immigration Board or the Aliens Appeals Board may refer a matter to the Government if, for instance, its outcome is of particular importance to the future application of the Aliens Act or if other particular circumstances warrant the Government's consideration of the case (chapter 7, section 11).         According to the 1991 Act on Compulsory Mental Care (lag 1991:1128 om psykiatrisk tvångsvård), such care shall be terminated at the request of the competent police authority whenever the person placed in care is ordered to be expelled. This presupposes, however, that the Chief Physician is of the opinion that the alien's condition allows enforcement to take place and consequently grants the request (section 29; Government Bill no. 1190/91: 58, appendix 1, p. 270). No appeal lies against the Chief Physician's decision upon a request made by the enforcing authority (section 33 of the 1991 Act).     COMPLAINT         The applicant complains that his expulsion to Peru would, if presently enforced, violate Article 3 of the Convention on account of his current state of health which has allegedly deteriorated significantly during the spring and summer of 1995. Reference is made, in particular, to certain suicide attempts. He recalls that the reports submitted to the Aliens Appeals Board by Dr. Nordström have been based merely on the already existing written documentation of the applicant's health. However, even according to this expert an enforcement would entail a risk to the applicant's health. The applicant furthermore submits that even if he were placed in compulsory psychiatric care Swedish law would not prevent enforcement of the expulsion order. As a result he does not dare to seek adequate psychiatric care in Sweden. Nor can his need of adequate care on his return to Peru be guaranteed.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 6 March 1995 and registered on 31 August 1995.         On 12 April 1995 the Commission decided not to indicate to the respondent Government that it would be desirable in the interest of the parties and the proper conduct of the proceedings not to enforce the expulsion order concerning the applicant until the Commission had examined the application further.   THE LAW         The applicant complains that his return to Peru would constitute treatment contrary to Article 3 (Art. 3) of the Convention, having regard to his current state of health. Article 3 (Art. 3) reads as follows:         "No one shall be subjected to torture or to inhuman or       degrading treatment or punishment."         The Commission recalls that Contracting States have the right to control the entry, residence and expulsion of aliens. However, expulsion by a Contracting State of an asylum seeker may give rise to an issue under Article 3 (Art. 3) of the Convention, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned would face a real risk of being subjected to, for instance, inhuman or degrading treatment in the country to which he is to be expelled (e.g., Eur. Court H.R., Vilvarajah and Others judgment of 30 October 1991, Series A no. 215, p. 34, paras. 102-103). A mere possibility of ill-treatment is not in itself sufficient (ibid., p. 37, para. 111).         The question to be answered in the case in issue is whether the enforcement at present of the expulsion order concerning the applicant would in itself involve such a trauma to him that Article 3 (Art. 3) would be violated (cf. Eur. Court H.R., Cruz Varas and others judgment of 20 March 1991, Series A no. 201, p. 31, paras. 83-84). The Commission recalls, however, that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 (Art. 3). The assessment of this minimum is relative; it depends on all the circumstances of the case, such as the nature and context of the treatment, the manner and method of its execution, its duration, its physical or mental effects and, in some instance, the sex, age and state of health of the victim (the above-mentioned Cruz Varas and others judgment, loc.cit.).         The Commission observes that the enforcement of the expulsion order concerning the applicant has not been opposed by the expert consulted by the Aliens Appeals Board apparently on condition that psychiatric expert assistance would be guaranteed during an actual enforcement attempt. The Commission assumes that no enforcement will take place without this condition being met.         The Commission therefore finds that in the circumstances of this case it is not unreasonable to assume that the applicant's return to Peru would not amount to a violation of Article 3 (Art. 3). It appears, moreover, that, should he be placed in compulsory care in Sweden, enforcement could under no circumstances take place without permission of the Chief Physician responsible for his care. Given that the enforcing police authority must request this physician to terminate the care, he or she still retains a further opportunity to assess, in a decisive manner, the applicant's state of health at the time of the planned enforcement.         In these circumstances the Commission cannot find it to have been shown that the applicant's possible return to Peru would amount to a violation of Article 3 (Art. 3) on account of his current state of health.         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, by a majority,         DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the Commission             President of the Commission          (H.C. KRÜGER)                          (S. TRECHSEL)