SUR LA RECEVABILITÉ
Application No. 22806/93
by A. and family
against Sweden
The European Commission of Human Rights sitting in private on
10 March 1994, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
A. WEITZEL
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
D. SVÁBY
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 21 July 1993 by
A. and family against Sweden and registered on 22 October 1993 under
file No. 22806/93;
Having regard to :
- reports provided for in Rule 47 of the Rules of Procedure
of the Commission;
- the observations submitted by the respondent Government on
29 November 1993 as well as 3 and 7 March 1994 and the
observations submitted by the applicants on 2 January as well as
1, 3, 9 and 10 March 1994;
Having deliberated;
Decides as follows:
THE FACTS
The applicants are a mother, born in 1962, with her two children
M., born in 1986 and S., born in 1989. They are of Lebanese nationality
and currently reside in Vallentuna, Sweden. They are represented by
Mr. Leif Rydberg, a lawyer in Bergshamra.
The facts of the case, as submitted by the parties, may be
summarised as follows.
Particular circumstances of the case
The first applicant is a Christian Armenian. Her father was
allegedly responsible for the military activities of the Christian
Kataeb party led by the former Lebanese President Gemayel. Her mother
is also said to have been politically active in the same party. The
first applicant allegedly became involved in political activities at
the age of eleven and in military activities in 1976, at the age of
fourteen. She served as a radio specialist and as an assistant to an
intelligence officer, who was a subordinate of ex-General Aoun. In 1984
she married another soldier in Aoun's troops and withdrew from military
activities. However, she continued to sympathise with General Aoun,
inter alia, by arranging demonstrations.
According to the applicants, the first applicant's husband and
the other applicant's father disappeared in Lebanon in August 1990.
Allegedly for this reason the applicants left Lebanon in October 1990,
having been smuggled out of the country carrying false passports. On
28 October 1990 they entered Sweden, where they immediately requested
asylum.
On 11 September 1991 the asylum request was refused by the
National Immigration Board (statens invandrarverk), considering that
the first applicant had never been arrested in Lebanon and having
regard to the general situation in the country. Participation in
conflicts between different groups was not considered sufficient for
the granting of asylum.
On 27 October 1992 the Aliens' Appeals Board (utlänningsnämnden)
upheld the refusal, questioning the first applicant's credibility, as
she had apparently thrown away her passport and had been unable to name
the airline transporting the applicants to Sweden, despite her claim
that she had served as an intelligence officer.
According to a report of 18 December 1991 submitted by the Clinic
for Children's and Youth Psychiatry at the hospital of Danderyd, the
first applicant appears to be a mentally strong woman who, at the time,
was having a difficult crisis, but nevertheless shows responsibility
and energy when it comes to her children's care.
According to a report of 16 November 1992 submitted by Dr.
Marianne Bauer, a psychiatrist, there was at the time a great risk that
the first applicant would kill her children and commit suicide in order
to avoid enforcement of the expulsion order. This was said to be due
to her fear of being killed if returned to Lebanon.
According to a psychological report of 3 May 1993 submitted by
Mr. Anders Andrén, a psychologist, the first applicant was at the time
suffering from a post-traumatic stress syndrome with depression, a
slight psychosis, flashbacks involving shooting, insomnia and
nightmares, excessive sound sensitivity, headache, anorexia and heart
and breathing problems. The report continues:
(translation from Swedish)
"... [The first applicant] is ... anxious, depressed,
desperate and sometimes confused. Further [mental] pressure
could lead to suicide attempts. It cannot ... be excluded
that [her] psychosis would develop. ...
... Her capacity to care for herself and her children if
returned to Lebanon appears to depend significantly on the
care to be expected there. ..."
The report also found that the first applicant's children were
traumatised by experiences from the civil war in Lebanon and that the
older child is suffering from flashbacks involving shootings.
On 18 June 1993 the applicants lodged a further request for
residence permits and stay of execution of the expulsion order.
Reference was made to the expert reports of 18 December 1991 and
3 May 1993.
On 22 June 1993 the request was rejected, the Board considering
that no new grounds had been shown.
On 26 January 1994 the applicants requested that the enforcement
of the expulsion order be suspended. The request was granted by the
National Immigration Board on 27 January 1994 pending the outcome of
the application lodged under the Convention.
In a further psychological report by Mr. Andrén submitted on
22 February 1994 the first applicant's current mental state is
considered to be, in essence, the following:
(translation from Swedish)
"... The [first applicant's] symptoms, as described in [my]
report of 3 May 1993 remain ... and have, in some respects,
become aggravated ...
[The first applicant] is deeply depressed ...
After the fourth denial of a residence permit [she] has
more and more begun contemplating suicide ...
... [She] is not afraid of dying, but fears being tortured
or raped ...
... Further pressure (due to a further denial [of a
residence permit]) may cause an impulsive, suicidal
reaction or , in the alternative, an aggravation of her
psychosis ... Suicidal behaviour is to be expected in
connection with [the enforcement of her and the children's]
expulsion [order] ...
In his report of 28 February 1994 Dr. Peter Nordström, a
psychiatrist consulted on a regular basis by the National Immigration
Board (förtroendeläkare i utlänningsärenden), evaluates the first
applicant's current mental state as follows:
(translation from Swedish)
"... [The first applicant has not sought any continuous
care and support ... [She is in] no particular need of
receiving compulsory psychiatric treatment ...
Under the circumstances the [second and third applicants]
seem to be in surprisingly good mental health.
... The risk that [the first applicant] would ... first
kill her children and then commit suicide [in order to
avoid enforcement of their expulsion] ... now appears less
significant ...
The medical documentation does not convincingly show that
there are medical [psychiatric] obstacles to the
enforcement [of the expulsion order]. [T]here is, however,
a clearly formulated and well planned, conditional threat
[that the first applicant would commit suicide] by the help
of a self-made petrol bomb. This threat should be taken
seriously, [thereby] requiring particular attention during
possible attempts to enforce [the expulsion order]. Reasons
of a generally humanitarian character, following from the
fact that children form part of the family, are not taken
into account in this evaluation. ..."
Dr. Nordström's report is based on an evaluation of the
previously mentioned expert reports as well as on a report of
28 February 1994 submitted by Ms. Gudrun Lindroth, a psychologist and
psychotherapist. According to Ms. Lindroth, the first applicant is
suffering from a complex post-traumatic stress syndrome. Her suicidal
plans are extremely concrete and realistic and she is fully capable of
taking her own life so as to enable the other applicants to stay in
Sweden. Ms. Lindroth considered the other applicants to be in
relatively good mental health.
Dr. Nordström's report is further based on telephone interviews
with Mr. Andrén and Ms. Lindroth and on an interview with the
applicants on 23 February 1994. According to the telephone interview
with Mr. Andrén, the first applicant now appears less likely to take
the other applicants' lives or injure them in order to prevent their
expulsion.
It appears from the file that in the autumn of 1993 the first
applicant's father had been informed that her husband is living in
Greece at an unknown address.
The first applicant's younger sister entered Sweden in
August 1989 together with her daughter. Their request for asylum or
de facto refugee status was rejected, but they were granted a permanent
residence permit on humanitarian grounds in January 1990. Subsequently
they have been joined by the sister's husband.
The first applicant's father entered Sweden in June 1990. In
July 1990 his request for de facto refugee status was rejected, but he
was granted a permanent residence permit on humanitarian grounds. In
September 1990 he requested permanent residence permits on behalf of
his wife (the first applicant's mother) and two of their children,
namely a further younger sister as well as a younger brother of the
first applicant.
The wife entered Sweden in March 1991 and in September 1991 she
was granted a permanent residence permit. The first applicant's sister
was twice refused a residence permit, in December 1990 and May 1992.
In September 1992 she entered Sweden and applied for asylum, referring
to her activities within the Kataeb party. This request was struck out
by the National Immigration Board in November 1993, as she had been
granted a residence permit in Norway. The first applicant's brother has
been refused a residence permit four times, in December 1990, May 1991,
May 1992 and March 1993. According to the Government, he is still
living in Lebanon.
It appears from the file that the first applicant's aunt is also
living in Lebanon, although, according to the applicants, "in a Muslim
area where they could hardly seek protection".
Relevant domestic law
Under Chapter 2, Section 5, subsection 3, of the Aliens Act
(utlänningslag 1989:529) a request for a residence permit lodged by an
alien, who is to be refused entry or expelled by a decision which has
acquired legal force, may only be granted provided the request is based
on new circumstances and the applicant is either entitled to asylum or
there are weighty humanitarian reasons for allowing him to stay in
Sweden.
Under Chapter 3, Section 1, an alien may be granted asylum
because he is a refugee or, without being a refugee, if he wishes not
to return to his home country because of the political situation there
and provided he can put forward weighty reasons in support of his wish.
The term "refugee" refers to an alien who is staying outside the
country of which he is a citizen because he feels a well-founded fear
of being persecuted in that country, having regard to his race,
nationality, membership of a special group in society or his religious
or political convictions, and who cannot or does not wish to avail
himself of his home country's protection (Chapter 3, Section 2).
An alien, as referred to in Chapter 3, Section 1, is entitled to
asylum. Asylum may, however, be refused inter alia if, in the case of
an alien falling under Chapter 3, Section 1, para. 3, there are special
grounds for not granting asylum (Chapter 3, Section 4). An alien may
be refused entry into Sweden if he lacks a visa, residence permit or
other permit required for entry, residence or employment in Sweden
(Chapter 4, Section 1, para. 2). When considering whether to refuse an
alien entry or to expel him, it must be examined whether he, pursuant
to Chapter 8, Sections 1-4, can be returned to a particular country or
whether there are other special obstacles to the enforcement of such
a decision (Chapter 4, Section 12). A refusal of entry issued by the
National Board of Immigration may be combined with a prohibition on
return for a specific period of time (Chapter 4, Section 14). In
refusing entry the Aliens' Appeals Board may also issue a prohibition
on return for a specific period of time (Chapter 7, Section 5,
subsection 2).
Under Chapter 7, Section 10, the National Board of Immigration
may review its decision if new circumstances have emerged or for any
other reason, provided it would not affect the alien negatively or be
irrelevant to him. A review may take place even if an appeal has been
lodged against the Board's decision. Once the Board has handed over the
file to the Aliens' Appeals Board it may only review its decision if
its opinion is requested by the Aliens' Appeals Board. The National
Board of Immigration may, for special reasons, refer a request for
asylum to the Aliens' Appeals Board together with its opinion in the
matter (Chapter 7, Section 11).
An alien who has been refused entry or who is to be expelled may
never be conveyed to a country where there is firm reason to believe
that he would be in danger of being subjected to capital or corporal
punishment or torture, or to a country where he is not protected from
being sent to a country where he would be in such danger (Chapter 8,
Section 1).
When a refusal of entry or an expulsion order is put into effect,
the alien may not be sent to a country where he would risk being
persecuted, or to a country where he would not be protected from being
sent on to a country where he would risk being persecuted (Chapter 8,
Section 2, subsection 1). An alien may, however, be sent to such a
country if he cannot be sent to any other and if he has shown, by
committing a particular offence, that public order and safety would be
seriously endangered by his being allowed to remain in Sweden. However,
this does not apply if the threatened persecution in the receiving
State implies danger to his life or is otherwise of a particularly
grave nature (subsection 2). Similarly, the alien may be sent to a
country referred to in subsection 1 if he has engaged in activities
endangering the national security of Sweden and if there is reason to
suppose that he would continue to engage in such activities in Sweden
and he cannot be sent to any other country (subsection 3).
If the enforcement is not subject to any obstacles under, inter
alia, Chapter 8, Sections 1 and 2, an alien who has been refused entry,
or who is to be expelled, is to be sent to his country of origin or,
if possible, to the country from which he came to Sweden. If the
decision cannot be put into effect in the manner indicated in
subsection 1, or there are other special grounds for doing so, the
alien may be sent to some other country instead (Chapter 8, Section 5).
When considering a request for a residence permit lodged by an
alien to be expelled according to a decision which has acquired legal
force, the National Board of Immigration (and in certain cases the
Government too) may stay execution of that decision. For particular
reasons, the Board may also otherwise stay execution (Chapter 8,
Section 10).
If the enforcing authority finds that enforcement cannot be
carried out or that further information is needed, the authority is to
notify the National Board of Immigration 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).
COMPLAINTS
1. The applicants complain that, if returned to Lebanon, they would
risk imprisonment and torture owing to the activities of the first
applicant, as well as her parents, in support of the Kataeb party. The
applicants refer to a letter by former President Gemayel confirming
that the first applicant was serving in the Kataeb party during the
civil war and that he knows her and her family "very well". Allegedly,
both present and former members of the Kataeb party are still being
persecuted in Lebanon, notably by the Syrian security police. For
instance, in December 1993 the party's headquarters in Beirut was
bombed and several persons were killed, including a member of
Parliament.
The applicants further allege that persecution of Christians is
also continuing, as Lebanon is practically ruled by Syrian forces. The
applicants refer to the bombings in February 1994 of a Christian-
Maronite church at Jonie where some ten persons were killed, and to the
recent attempt to bomb another Christian church in Lebanon.
The applicants finally refer to the opinions regarding their
current mental health which they consider forms an obstacle to their
expulsion.
2. In regard to the impending expulsion the applicants finally
allege that their entire family is lawfully resident in Sweden. They
claim to have no relatives left in Lebanon, as the first applicant's
missing husband is thought to be dead.
The applicants invoke Articles 2, 3, 5, 8, 9, 10, 11 and 14 of
the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 21 July 1993 and registered on
22 October 1993.
On 22 October 1993 the Commission decided to bring the
application to the notice of the Government and to invite them to
submit written observations on its admissibility and merits. It further
decided, pursuant to Rule 36 of the Commission's Rules of Procedure,
to indicate to the Government that it was desirable in the interests
of the parties and the proper conduct of the proceedings not to expel
the applicants to Lebanon until the Commission had had an opportunity
to examine the application before 10 December 1993.
Following an extension of the time-limit, the Government's
observations were submitted on 29 November 1993.
On 9 December 1993 the Commission prolonged the indication under
Rule 36 until 21 January 1994.
Following an extension of the time-limit, the applicants'
comments in reply were submitted on 2 January 1994.
On 20 January 1994 the Commission decided to obtain supplementary
written observations from both parties on the admissibility and merits
of the application. It further decided to prolong its indication under
Rule 36 until 11 March 1994.
Supplementary observations were submitted by the applicants on
1 and 3 March 1994 and by the Government on 3 March 1994. On 9 and 10
March 1994 the applicants submitted comments in reply to the
Government's supplementary observations. The Government commented on
the applicants' supplementary observations on 7 March 1994.
THE LAW
1. The applicants complain that, if returned to Lebanon, they would
risk severe ill-treatment primarily owing to the first applicant's
military background and her parents' political activities in support
of the Kataeb party and having regard to the Syrian presence in
Lebanon. Moreover, Christians are allegedly still being persecuted in
Lebanon. Finally, the applicants refer to their current mental health
which they consider forms an obstacle to their expulsion.
The Commission has examined this complaint under Article 3
(Art. 3) of the Convention which reads:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
The Government question whether domestic remedies have been
exhausted, referring to the expert reports submitted by Mr. Andrén and
Dr. Nordström in February 1994. In the alternative, the Government
consider the complaint manifestly ill-founded, no substantial grounds
having been shown for believing that the applicants would be subjected
to treatment contrary to Article 3 (Art. 3) of the Convention if
returned to Lebanon.
First, as regards the military and political background in
Lebanon of the first applicant and her parents, the Government have not
been informed of any attempts to harm the applicants in Lebanon on
account of the first applicant's previous activities prior to their
departure from that country; nor have they been informed of any attempt
to prevent the applicants from leaving Lebanon. Moreover, in 1991 a
general amnesty was proclaimed in Lebanon covering, among others,
political offences. Having regard to the current political situation
in the country, the applicants' risk of being subjected to treatment
contrary to Article 3 (Art. 3) due to the first applicant's alleged
background in Lebanon is far from significant, especially as she had
already stopped her military activities in 1984.
Secondly, as regards the first applicant's Christian faith and
Armenian background, the Government have not been informed of any
current persecution of Christians in Lebanon.
Finally, as regards the applicants' mental state, the Government
refer, in particular, to the report by Dr. Nordström which they
consider shows the absence of any obstacle to the enforcement at
present of the expulsion order. The applicants' mental health at the
time of the enforcement being decisive, the National Immigration Board
may decide to stay the enforcement until further notice if their health
is regarded as an obstacle to the enforcement.
The Commission recalls that Contracting States have the right to
control the entry, residence and expulsion of aliens. The right to
political asylum is not protected in either the Convention or its
Protocols (Eur. Court H.R., Vilvarajah and Others judgment of
30 October 1991, Series A no. 215, p. 34, para. 102). 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 torture or to
inhuman or degrading treatment or punishment in the country to which
he is to be expelled (ibid., para. 103). A mere possibility of ill-
treatment is not in itself sufficient (ibid., p. 37, para. 111).
Assuming that the applicants have exhausted domestic remedies in
accordance with Article 26 (Art. 26) of the Convention, the Commission
finds that no substantial grounds have been shown for believing that
their return to Lebanon would subject them to a real risk of being
treated contrary to Article 3 (Art. 3) of the Convention, either on
account of the alleged background in that country of the first
applicant and her parents, or on account of the first applicant's
Christian faith.
As to the applicants' mental state, the Commission has had
particular regard to the most recent expert medical reports of February
1994. In the light of these reports, it finds that no substantial
grounds have been shown for believing that the applicants' return to
Lebanon would violate Article 3 (Art. 3) of the Convention on account
of their current state of health.
It follows that this complaint, as a whole, must be rejected as
being manifestly ill-founded, within the meaning of Article 27 para.
2 (Art. 27-2) of the Convention.
2. In regard to their impending expulsion, the applicants also claim
that their entire family is lawfully resident in Sweden. Allegedly,
they have no relatives left in Lebanon, as the first applicant's
missing husband is thought to be dead.
The Commission has examined this complaint under Article 8
(Art. 8) of the Convention, which reads:
"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."
The Government consider this complaint to be manifestly ill-
founded, primarily as it has not been shown that the first applicant's
husband and father of the other applicants has disappeared or that he
is no longer living in Lebanon. The Government further refute the
applicants' allegation that they have no other relatives left in
Lebanon. They finally emphasise that the first applicant's parents and
one of her sisters were granted residence permits in Sweden because of
the impossibility at the time to enforce expulsions to Lebanon.
The Commission considers that the refusal to grant the applicants
a residence permit in Sweden raises the question whether there has been
a lack of respect for their family life. It recalls that the notion of
"respect" enshrined in Article 8 (Art. 8) of the Convention 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 determining
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.).
The Commission further recalls that in the field of immigration
"Contracting States enjoy a wide margin of appreciation in determining
the steps to be taken to ensure compliance with the Convention with due
regard to the needs and resources of the community and of individuals".
A State's obligation to admit to its territory foreign relatives of its
citizens will vary according to the particular circumstances of the
persons involved. Moreover, "as a matter of well-established
international law and subject to its treaty obligations, a State has
the right to control the entry of non-nationals to its territory" (Eur.
Court H.R., Abdulaziz, Cabales and Balkandali judgment of 28 May 1985,
Series A no. 94, pp. 33-34, para. 67).
As regards the facts of the present case, the Commission observes
that the applicants are Lebanese citizens, who entered Sweden in
October 1990 following the alleged disappearance of their husband and
father. In January 1990 the first applicant's younger sister and her
daughter were granted a permanent residence permit in Sweden and
subsequently also the sister's husband. The first applicant's parents
were granted permanent residence permits in Sweden in July 1990 and in
September 1991, respectively. A further sister of the first applicant
was granted a residence permit in Norway in 1993. The first applicant's
brother and aunt appear to be living in Lebanon.
The Commission recalls that the existence or not of family life
falling within the scope of Article 8 (Art. 8) will depend on a number
of factors and on the circumstances of each particular case (e.g.
No. 12402/86, Dec. 9.3.88, D.R. 55 p. 224). Even if the applicants'
husband/father has disappeared, the Commission primarily considers that
they must be regarded as an independent family unit. Thus, neither the
first applicant's relationship with her parents and sister in Sweden,
nor the other applicants' relationship with their grandparents and aunt
in that country, could be regarded as "family life" within the meaning
of Article 8 (Art. 8). Even assuming that the applicants' relationship
with the whole of their extended family could be considered "family
life", the Commission observes that, contrary to the applicants'
contention, these family members are not all resident in Sweden.
In these circumstances, the duties imposed by Article 8
(Art. 8) of the Convention cannot be considered as extending to an
obligation on the part of Sweden to grant the applicants a residence
permit (cf., mutatis mutandis, the above-mentioned Abdulaziz, Cabales
and Balkandali judgment, p. 34, para. 68).
The Commission concludes that there are no elements in the
present case which would indicate that the respondent Government
exceeded their margin of appreciation in striking a fair balance
between the general interests of the community and the individual
interest of the applicants, when refusing them a residence permit in
Sweden. The Commission concludes, therefore, that there has been no
lack of respect for their family life.
It follows that this complaint must also be rejected as being
manifestly ill-founded, within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
3. Finally, the Commission has examined the application in so far
as it has been submitted under Articles 2, 5, 9, 10, 11 and 14
(Art. 2, 5, 9, 10, 11, 14) of the Convention. However, insofar as the
matters complained of have been substantiated and are within its
competence, the Commission finds that they do not disclose any
appearance of a violation of those provisions.
It follows that this part of the application must be rejected in
accordance with Article 27 (Art. 27) 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. NORGAARD)
Full & Egal Universal Law Academy