CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 26 octobre 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. 27776/95                     by A.G. and Others                     against Sweden        The European Commission of Human Rights sitting in private on 26 October 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                G.B. REFFI                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                K. HERNDL             Mr.   M. de SALVIA, Deputy 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 11 January 1995 by A.G. and Others against Sweden and registered on 3 July 1995 under file No. 27776/95;        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 30 August 1995 and the observations in reply submitted by the applicant on 5 October 1995;        Having deliberated;        Decides as follows:   THE FACTS        The facts of the case, as submitted by the parties, may be summarised as follows.        The applicants are two families. One family consists of A, born in 1951, his wife B, born in 1961, and their four children C, born in 1978, D, born in 1981, E, born in 1984, and F, born in 1990. The other family consists of G, born in 1948, his wife H, born in 1959, and their six children J, born in 1977, K, born in 1978, L, born in 1980, M, born in 1983, N, born in 1985, and O, born in 1989. A and G are brothers. They are all Turkish citizens. Before the Commission they are represented by Ms. Lena Isaksson, a lawyer practising at Umeå.        A and G arrived in Sweden on 4 December 1990 and applied for asylum. They declared that they were Iraqi citizens and members of the KDP (the Kurdish Democratic Party). They had allegedly been active in KDP's guerilla warfare in Iraq until 1988, when they fled to Iran after an Iraqi attack on Kurdistan. They stated that their families were still living in Iran and claimed that they could not return to Iraq, as they would be executed on account of their association with the guerilla. Based on this information, the National Immigration Board (Statens invandrarverk), on 13 March 1991, granted A and G permanent residence permits.        On 4 September 1991 A's and G's wives and children arrived in Sweden. They also applied for asylum claiming to be Iraqi citizens. The same day, a Turkish citizen was arrested at the Copenhagen airport. In his possession were Turkish passports and other Turkish documents issued for the applicants. Confronted with this information, the wives declared that they had travelled from Turkey with false Turkish passports. They maintained, however, that they were Iraqi citizens.        The Immigration Board started an investigation into the applicants' identities. Although the applicants denied that they were Turkish citizens or had lived in Turkey, the Board found it established that they were Turkish citizens.        On 10 February 1993 the Board revoked A's and G's residence permits and rejected the other family members' applications, as they were considered to have submitted false information in support of their applications for asylum. The Board further ordered their expulsion.        The applicants appealed to the Aliens Appeals Board (Utlännings- nämnden). They maintained the information previously submitted and added that the wives had moved from Iraq to Turkey in 1975 with their respective parents and that they had therefore double citizenships. They further referred to the general situation in Turkey and the children's school education in Sweden. A medical certificate concerning J was also submitted. Issued on 14 September 1993 by a chief physician and two psychologists at the Children's Psychiatric Centre at Lycksele, it stated that the expulsion threat had adversely affected J's mental state and that he had suicide thoughts.        On 14 October 1993 the Appeals Board upheld the Immigration Board's decisions. Thereafter, the applicants moved to a church in Åsele.        On 22 November and 2 December 1993 and on 28 January and 11 April 1994 the applicants lodged new applications for residence permits with the Immigration Board. They still maintained the information they had previously given and added that, being Kurds, they could not be expelled to Turkey where they would be persecuted. These applications were rejected by the Board on 24 November and 3 December 1993 and on 4 February and 19 April 1994.        In new applications lodged on 25 April 1994 A and G admitted that they were Turkish citizens but claimed that they had not been aware of this before. These applications were rejected by the Immigration Board on 5 May 1994.        Further applications were lodged on 1 June 1994. The applicants now admitted that they had lived in Turkey, although they had allegedly spent most of their time in Iraq. A and G further admitted that they had known about their Turkish citizenship and that they had also possessed Turkish passports. They claimed that Turkish authorities erroneously suspected them of being members of the PKK and that they might therefore be tortured and executed if they were sent back. The applicants also invoked their long stay in Sweden, during which some of the children had completed three years in Swedish schools. They also submitted two documents which, the applicants claimed, were a warrant for the arrest of A and G who were suspected of having supported and worked as couriers for the PKK and an announcement of the warrant published in a local Turkish newspaper. The warrant, issued by the Police Authority at Diyarbakir, was dated 27 February 1990 and the announcement had allegedly been published on 27 August 1990.        On 10 June 1994 the Immigration Board stayed the enforcement of the applicants' expulsion in order to check the authenticity of the documents. In an opinion of 22 September 1994, the Swedish Embassy at Ankara stated that the warrant of arrest seemed to be genuine, although the Embassy found it peculiar that it had come into the applicants' hands since such documents would normally be of a confidential nature. With regard to the newspaper announcement, the Embassy concluded that the newspaper either had ceased to exist or was published only unofficially.        The Immigration Board held an oral hearing on 6 December 1994, during which the applicants again changed their story, now claiming that A and G had actually been members of the PKK but had later dissociated themselves from the organisation. Allegedly, the Turkish authorities knew about their PKK affiliation. They further stated that they had previously submitted false information to the Swedish immigration authorities as they were afraid to mention their activities within the PKK.        On 10 January 1995 the Immigration Board rejected the applicants' latest applications. In view of the constant changes in the applicants' statements, of which they had not been able to give a satisfactory explanation, the Board found them not credible. It further found the latest information supplied by the applicants to be vague and uncertain. The authenticity of the warrant of arrest and the newspaper announcement was also called into question. The Board found it remarkable that the applicants possessed a document not intended for them but for the authority responsible for the arrest of A and G. It also took into account that the documents had been submitted at a very late stage of the immigration proceedings. With regard to the humanitarian aspects invoked by the applicants - i.a. their long stay in Sweden, their integration into the Swedish society and the children's school education - the Board noted that the applicants' submission of false information and the constant changes in their statements had rendered the examination of their applications difficult and prolonged their stay in the country. Regard was further had to the fact that the applicants since October 1993 had lived in a church, which the police in charge of enforcing the expulsion orders considered that they could not enter. For these reasons, the Board concluded that the applicants could not be granted residence permits on humanitarian grounds.        Soon after the Immigration Board's decision, the applicants again lodged new applications for residence permits. Due to a change of the appeal procedure under the Aliens Act (Utlänningslagen, 1989:529), these applications were lodged with the Appeals Board. The applicants invoked the information previously submitted. In regard to the warrant of arrest, they maintained that it was genuine and that it had been announced in the Turkish newspaper three months before A's and G's applications for asylum and invoked before the Swedish immigration authorities on 1 June 1994, which would prove that it was not fabricated by the applicants. As concerns the children's situation, the applicants submitted medical certificates concerning eight of the children issued on 18 January 1995 by four physicians and psychologists at the Children's Psychiatric Centre at Umeå. The certificates stated that C, J and K, the three eldest children, suffered from severe depressions and were in need of immediate psychiatric care which could not be provided for in Turkey, that L had a slight depression and that D suffered from somnambulism. All those children as well as E, M and N further showed psychosomatic symptoms like headache, stomach pains, dizziness, fatigue, respiratory problems, insomnia and nightmares. Moreover, C, D, J, K and L had recurrent suicide thoughts and could, in the doctors' opinion, make successful attempts at taking their own lives while being deported. Allegedly, C had already made a few suicide attempts. Unable to control his aggressions, J could also pose a threat to the others.        On 2 February 1995 the Appeals Board decided, in accordance with the applicants' request, to refer the matter to the Government. Agreeing with the Immigration Board's findings of 10 January 1995, the Appeals Board at the same time expressed its opinion that the applications should be rejected. The Appeals Board further decided to stay the enforcement of the expulsion orders pending the outcome of the Government's examination.        Following the decision to stay the enforcement proceedings the applicant families moved to two flats in Åsele.        In a statement to the Government of 13 March 1995, the applicants claimed that they had originally withheld information on A's and G's previous PKK membership due to their fear that the Turkish authorities would learn about this. When, at the Immigration Board's hearing in December 1994, they had finally disclosed that A and G had been members of the PKK, they had naturally expected that this information would be kept secret. However, when interviewed by television and radio reporters in January 1995, the Director-General of the Immigration Board had made this information public. For this reason, the risk had increased that the applicants would be arrested and subjected to torture or other inhuman or degrading treatment by the Turkish authorities upon return.        The Government requested Dr. Annette Voltaire Carlsson, a psychiatrist regularly consulted by the immigration authorities (förtroendeläkare), to review the medical certificates concerning C, D, J, K and L. After having examined the children herself, Dr. Voltaire Carlsson, in statements of 29 March 1995, concluded that J suffered from depression and could very well try to commit suicide. Moreover, she would not exclude the possibility that C, K and L would perform self-destructive acts in an expulsion situation. However, despite signs of anxiety and dejection, these three children did not, in her opinion, suffer from depression. D allegedly showed moderate psychosomatic symptoms.        In reply to Dr. Voltaire Carlsson's statement, the doctors at the Children's Psychiatric Centre at Umeå, on 26 April 1995, expressed that the differences between their and Dr. Voltaire Carlsson's assessments were due to changes in the children's general situation. At the time of the examination in January 1995 there was an imminent threat of expulsion and the children lived under primitive circumstances in a church and did not attend school whereas, in March 1995, they had moved with their families to flats and were attending school again.        On 29 June 1995 the Government rejected the applicants' latest applications. Taking into account that the applicants had submitted false information to the immigration authorities which had delayed the examination of their applications and further agreeing with the findings of the Immigration Board and the Appeals Board, the Government found that the applicants were not entitled to asylum. Mainly referring to the statements of Dr. Voltaire Carlsson, the Government further considered that the children's situation and their mental problems did not constitute sufficient grounds for granting the applicants residence permits.        On the same day C, J and K were admitted for institutional care at the Children's Psychiatric Clinic at Umeå due to the imminent risk of suicide attempts. According to the Clinic's chief physician, Dr. Olav Bengtsson, C, on 1 July 1995, cut her wrists with a razor-blade. Dr. Bengtsson, however, noted that this was not a suicide attempt, as C knew that she would not die from her action. On 6 July 1995 the three children were discharged from the Clinic. Two of them have been seeing doctors at the Clinic thereafter.        On 7 August 1995, notwithstanding the Commission's indication to the respondent Government that it was desirable not to deport the applicants until the Commission had had an opportunity to examine the present application, the Immigration Board rejected the applicants' request to have the enforcement of the expulsion orders stayed. The Board found no reason to stay the enforcement in view of the extensive investigations which had already been carried out in connection with the applicants' numerous applications. However, on 11 August 1995, following the applicants' submission of new applications for residence permits to the Appeals Board, the Appeals Board stayed the enforcement.        The applicants' latest applications have not yet been examined by the Appeals Board. Before the Appeals Board, the applicants have stated that the Director-General of the Immigration Board, on 7 July and 20 August 1995, respectively, made public the Immigration Board's decision of 10 January 1995 in its entirety and the Government's decision of 29 June 1995 in parts. This has allegedly further increased the risks for the applicants upon return to Turkey. The applicants have further submitted a statement by Amnesty International of 9 August 1995, according to which the fact that A's and G's previous affiliation to the PKK has been made public puts their life and security in danger if they are sent back to Turkey.   COMPLAINT        The applicants complain, under Article 3 of the Convention, of their expulsion to Turkey. They claim that A and G risk torture or inhuman or degrading treatment or punishment upon return due to the Turkish authorities' suspicion that they are members of the PKK. Furthermore, it would allegedly constitute inhuman treatment to expel the children as they are integrated into the Swedish society and as some of them have mental problems and may attempt to commit suicide.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 11 January 1995. The applicants requested the Commission to stay their expulsion until the application had been examined.        On 13 January 1995 the Commission decided not to indicate to the respondent Government, pursuant to Rule 36 of the Commission's Rules of Procedure, the measure suggested by the applicants.        On 14 June 1995 the applicants, submitting further documents, lodged a second request for the Commission to apply Rule 36.        Following further correspondence with the applicants, the application was registered on 3 July 1995.        Also on 3 July 1995 the Commission decided, pursuant to Rule 36, to indicate to the respondent Government that it was desirable in the interest of the parties and the proper conduct of the proceedings not to deport the applicants to Turkey until the Commission had had an opportunity to examine the application. The Commission further decided, in accordance with Rule 48 para. 2 (b), to communicate the application to the respondent Government.        On 30 August 1995 the Government's observations were submitted, after an extension of the time-limit fixed for that purpose.        By decision of 14 September 1995, the Commission prolonged its indication under Rule 36 until the end of the Commission's session between 16 and 27 October 1995.        On 5 October 1995 the applicant replied to the Government's observations, also after an extension of the applicable time-limit.   THE LAW        The applicants complain of their expulsion to Turkey. They invoke Article 3 (Art. 3) of the Convention, which reads as follows:        "No one shall be subjected to torture or to inhuman or      degrading treatment or punishment."        The Government submit that the application should be declared inadmissible for being manifestly ill-founded. The Government argue that the applicants have systematically attempted to mislead the Swedish immigration authorities with regard to their identities, nationality and previous place of residence and their motives for coming to Sweden. They have had considerable success in that A and G have managed to obtain permanent residence permits for themselves and considerably prolong their and their families' stay in Sweden. Allegedly, it is very likely that they would no longer be in Sweden had they furnished correct information from the very beginning. The Government contend that the Swedish authorities should not have to accept that persons coming to Sweden under false premises are allowed to remain in the country. The Government submit that, against this background, the trustworthiness of the applicants' present standpoint must be called into question. Referring to the conclusions of the Swedish Embassy in Ankara, the Government further consider that there are reasons to doubt the authenticity of the warrant of arrest. The Government especially find it peculiar that a warrant issued by the police would be inserted in a newspaper which appears not to have been published continuously or officially at the relevant time. The Government also submit that a large part of the Turkish population consists of persons of Kurdish origin and that they live in all parts of the country where they are completely integrated into the Turkish society. Furthermore, Turkey is bound by Article 3 (Art. 3) of the Convention and the applicants are thus entitled not to be subjected to any treatment contrary to Article 3 (Art. 3) in that country. The supervision exercised by the Convention organs is equally relevant in the case of Turkey as in the case of Sweden.        As regards the applicant children's mental state, the Government contend that when assessing the medical opinions of 18 January 1995 it has to be taken into account that the physicians and psychologists had been given incorrect information as far as the children's background and previous experiences are concerned. In this connection, the Government note that the opinion delivered by Dr. Voltaire Carlsson after her examination of the children at the end of March 1995 gives a somewhat different picture of the children's situation than the opinions from January. Furthermore, the Government contend that the fact that the three children admitted for institutional psychiatric care on 29 June 1995 were discharged after a week indicates that their health status was not as serious as it might have appeared at first sight. The Government further argue that the children's situation, to a very large extent, has been created by their parents, as they would most likely no longer be in Sweden if the parents had not furnished the immigration authorities with false information. Moreover, the children's present state of health is allegedly a result of their fear of what will happen when they return to Turkey. Having regard to the above statements, the Government contend that this fear is highly exaggerated. Finally, the Government maintain that, when enforcing the expulsion, the police authority in charge will take into account the applicants' state of health and find the most appropriate manner for such an enforcement. Should the applicant's health be such that expulsion cannot take place, the police is obliged to notify the National Immigration Board which may decide to stay the enforcement until further notice.        The Government conclude that no substantial grounds have been shown for believing that the applicants would face a real risk of treatment contrary to Article 3 (Art. 3) of the Convention if the expulsion orders were to be enforced and that, with respect to the children's present state of health, the threshold under Article 3 (Art. 3) would not be exceeded in case of enforcement.        The applicants submit that A, since 1983, and G, since the late 1970's, have been active within the PKK, transporting persons and documents. They have not taken part in any acts of violence. They fled to Syria in 1989, as the Turkish authorities had found out about their activities and as the PKK forced them to carry arms and planned to transfer them to its military branch. At the time of their escape, they were wanted by the Turkish authorities. They refer in this respect to the warrant of arrest of 27 February 1990 and the newspaper announcement of 27 August 1990. On account of their previous activities within the PKK, A and G allegedly risk long prison sentences in Turkey. Moreover, they might be tortured or subjected to other inhuman or degrading treatment in prison. It is also unlikely that they will receive fair trials. These risks have increased after the Immigration Board's decision of 10 January 1995 and the Government's decision of 29 June 1995 were made public, including A's and G's declaration that they were former PKK members. The reason why A and G initially failed to tell the immigration authorities about their PKK activities was their fear that Turkish authorities or the PKK would learn about their statements. They submit that it will be very difficult for them to refute the Turkish authorities' charges of PKK activities when these authorities know about their own admissions before the Swedish immigration authorities.        As concerns the children's situation, the applicants refer to the medical certificates submitted to the immigration authorities, which allegedly show that there are clear risks of suicide attempts or self- destructive acts in respect of four of the children. Allegedly, the only false information submitted by the applicants at the time of the examinations in January 1995 was the names of the children. In reply to the Government's allegation that the children's situation has been created by their parents who have caused their long stay in Sweden, the applicants claim that they have a right, under the Aliens Act, to submit new applications if new, previously unknown, facts emerge. The applicants should not be blamed for the delayed examination of these applications. Moreover, it should not be held against the applicants that the police authorities decided not to enforce the expulsion orders while the applicants resided in the church, since there were no legal impediments to such a measure.        The Commission recalls that Contracting States have the right to control the entry, residence and expulsion of aliens (cf., e.g., Eur. Court H.R., Vilvarajah and Others judgment of 30 October 1991, Series A no. 215, p. 34, para. 102). However, an expulsion decision may give rise to an issue under Article 3 (Art. 3) of the Convention, and hence engage the responsibility of the State, where substantial grounds have been shown for believing that the person concerned would face a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the country to which he or she is to be expelled (ibid., p. 34, para. 103). A mere possibility of ill-treatment is not in itself sufficient (ibid., p. 37, para. 111).        The Commission notes that in the present case the expulsion is foreseen to a State Party to the Convention, which has declared that it recognises the competence of the Commission to receive individual petitions lodged under Article 25 (Art. 25) of the Convention.        As regards the particular circumstances of the present case, the Commission notes that the applicants, when applying for asylum in 1990 and 1991, supplied the Swedish immigration authorities with false information. Thereafter, they have repeatedly changed their story. The applicants claim that this has been done out of fear that the Turkish authorities and the PKK would learn about A's and G's statements about previous PKK membership. In this connection, the Commission, however, notes that the applicants now claim that the Turkish authorities had found out about A's and G's PKK activities already in 1989. They have further invoked a warrant for their arrest on account of those activities allegedly issued on 27 February 1990 and published on 27 August 1990. The Commission considers that the applicants have not convincingly explained why they did not invoke this when they initially applied for asylum. In this respect, the Commission further takes into account that the applicants have not changed their story only with respect to the alleged PKK membership, but also in regard to their identities, nationality and previous place of residence. The Commission thus considers that, on account of the contradictory information supplied by the applicants before the Swedish immigration authorities, there are reasons to call into question also the veracity of the facts now invoked before the Commission.        The Commission concludes, for the above reasons, that it has not been established that there are substantial grounds for believing that the applicants would be exposed to a real risk of being subjected to treatment contrary to Article 3 (Art. 3) of the Convention in Turkey.        Moreover, the Commission recalls from its previous case-law that Chapter 8, Section 1 of the Aliens Act imposes an absolute obligation on the enforcement authority in Sweden to refrain from expelling an alien should the human rights situation in the receiving country constitute a firm reason to believe that he or she would be in danger of being subjected to capital or corporal punishment, or torture, in that country (cf., e.g., No. 25387/94, Kas Ibrahim and Parsom v. Sweden, Dec. 4.7.95, unpublished).        The Commission next has to examine whether, in view of the applicants' state of health, an enforcement at present of the expulsion orders would in itself involve such a trauma for them that Article 3 (Art. 3) would be violated.        The Commission recalls 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 instances, the sex, age and state of health of the victim (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 notes that several medical certificates have been invoked in the present case according to which some of the children suffer from depressions and might try to commit suicide should the expulsion orders be enforced. According to the medical opinions of 18 January 1995, C, J and K were in need of immediate psychiatric care. The Commission also notes that these three children, faced with the threat of expulsion, were admitted for institutional psychiatric care on 29 June 1995 due to imminent suicide risks. C later cut her wrists, but this could not be considered as a suicide attempt, according to the chief physician in charge of her care.        It appears to the Commission that the main reasons for the children's mental problems are that they have for many years lived in uncertainty as to whether they would be allowed to remain in Sweden and that they have, during this period, in various respects integrated into the Swedish society. Although the prolonged stay in Sweden, to a lesser extent, may be due to the conduct of the Swedish immigration authorities, it appears that it is mainly an effect of the applicants' failure to provide the authorities with correct information.        The Commission notes that the children are not, at present, undergoing psychiatric care. It is, moreover, satisfied that, whether or not they are at the time under psychiatric care, the police authority in charge of the enforcement of the expulsion orders will take into account their state of health when deciding how the expulsion should be carried out. In this connection, the Commission further notes that, should the children be placed in compulsory psychiatric care, the expulsion could under no circumstances take place without the permission of the chief physician responsible for their care (cf. No. 27249/95, Lwanga and Sempungo v. Sweden, Dec. 14.9.95, unpublished).        In the above circumstances, the Commission does not find it established that the applicants' return to Turkey would amount to a violation of Article 3 (Art. 3) on account of the children's present state of health.        It follows that the application is 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.   Deputy Secretary to the Commission      President of the Commission         (M. de SALVIA)                         (S. TRECHSEL)