AS TO THE ADMISSIBILITY OF
Application No. 28938/95
by Monica and Evelyn BARRANTES
against Sweden
The European Commission of Human Rights sitting in private on
24 October 1996, the following members being present:
Mr. S. TRECHSEL, President
Mrs. G.H. THUNE
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
Mr. H.C. KRÜGER, Secretary to the Commission
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 8 October 1995 by
Monica and Evelyn BARRANTES against Sweden and registered on 17 October
1995 under file No. 28938/95;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard the observations submitted by the respondent
Government on 6 September 1996 and the observations in reply submitted
by the applicants on 3 October 1996;
Having deliberated;
Decides as follows:
THE FACTS
The first applicant is a Peruvian citizen, born in 1969. The
second applicant is the first applicant's daughter, born in 1994. At
present the applicants reside at Saltsjö-Boo, Sweden. In the
proceedings before the Commission the applicants are represented by
Mr. Peter Bergqvist, a lawyer practising at Tyresö, Sweden.
The facts of the case, as submitted by the parties, may be
summarised as follows.
The first applicant and her daughter, S, born on 28 May 1993,
arrived in Sweden from Peru in December 1993. The first applicant's
husband had at that time already arrived in Sweden and had applied for
political asylum. In support of his request for asylum he invoked that
he had been working for the Peruvian police in its anti-terrorist unit,
but that at the same time he had been in contact with a special
movement within the police - "Policia Progresista" - which was
struggling for a better police force in Peru. Having refused, together
with a colleague of his, to carry out an order to apprehend a person
he and his colleague were reported to the military court in Peru and
they were to be transferred to another district. He was summoned to
appear before the court on three occasions in 1992 but never did. His
colleague was allegedly killed. He tried to resign from the police
service but his request was refused. He left his work in January 1993
and went to Sweden where a brother of his was living. When he left the
country he was not wanted by the police but a check made later by his
brother showed that he was wanted by the Peruvian authorities in
February 1994. In respect of her own request for asylum the first
applicant claimed that she had been harassed by the police following
her husband's journey to Sweden and that the police had tried on one
occasion to force her into a car by means of threat. She also invoked
humanitarian reasons for being allowed to remain in Sweden.
On 11 July 1994 the National Immigration Board (Statens
invandrarverk, hereinafter "the SIV") rejected the family's application
for a residence permit. The SIV did not find the reasons invoked
sufficient for considering the first applicant and her husband as
political refugees or so-called de facto refugees. The information
provided was not considered credible and it was noted that the
application for asylum had not been made upon their arrival in Sweden
but several weeks later. The family was ordered to leave Sweden and was
prohibited from returning to the country within two years without
permission from the SIV. However, they remained in Sweden and lodged
an appeal against the SIV's decision (cf. below "the expulsion order").
On 24 November 1994 the first applicant's mother arrived in
Sweden and applied for a residence permit. On 4 July 1995 the Aliens
Appeals Board (Utlänningsnämnden, hereinafter "the Board") to which the
SIV had referred her case, rejected her application and ordered her
expulsion. A new application for a residence permit was turned down by
the Board on 29 November 1995. On 26 August 1996 the expulsion order
was enforced and the first applicant's mother was returned to Peru.
The care order concerning the second applicant
On 5 January 1994 the family was reported to the social
authorities following a medical examination of the first applicant's
daughter S carried out at the S:t Göran Hospital in Stockholm at which
a fractured thigh bone was discovered. This as well as several bruises
indicated that she might have been assaulted. Following her treatment
at the hospital the social authorities arranged for the family to be
placed at a special investigation home under the supervision of the
social authorities. Traces of assault were noted also later in
January 1994 and it was considered that the parents lacked capacity to
take care of their daughter. However, no care order was issued at this
stage. In early March 1994 the family was allowed to leave the special
investigation home, but was requested to remain in regular contact with
the social welfare officers in charge of their case. New traces of
assault were discovered later in March 1994 and the family moved back
to the investigation home. Following further injuries in April 1994 S
died on 28 May 1994, only one year old. The investigation carried out
showed that S had been assaulted by her father who was found guilty on
14 July 1994 by the District Court of Stockholm (Stockholms tingsrätt)
of having killed his daughter and sentenced to ten years' imprisonment
to be followed by an expulsion from Sweden. The Court's judgment was
upheld on 2 December 1994 by the Svea Court of Appeal (Svea hovrätt)
whose judgment has gained legal force.
When S died the first applicant was pregnant. The social
authorities remained in contact with her and she received support in
accordance with the provisions of the Social Services Act
(socialtjänstlagen). She was placed at a special nursery home at
Klingsta awaiting the child to be born. She gave birth to her daughter
E (the second applicant) on 8 October 1994. On the same day the deputy
chairman of the Social District Council no. 7 of the municipality of
Stockholm decided to place the child in care with immediate effect in
accordance with section 6 of the 1990 Act with Special Provisions on
the Care of Young Persons (lag 1990:52 med särskilda bestämmelser om
vård av unga, hereinafter "the 1990 Act") which provides for such an
interim measure where care pursuant to the Act appears to be necessary
and where the young person's health or development or the
investigations to be made cannot await a court order.
On 13 October 1994 the social authorities decided to place the
second applicant in a temporary foster home as a measure of emergency.
The reasons for separating the applicants were the first applicant's
alleged lack of ability to take care of her daughter, the trauma that
she was going through following the death of her first daughter, other
stress factors and that she was allegedly unable to understand the
reason why she had been placed at the nursery home at Klingsta.
Moreover, the decision was taken in view of the fact that Dr. F.S., a
child psychiatrist and a consultant to the social authorities, and the
staff at Klingsta had expressed the opinion that, in the present
conditions, the safety of the second applicant could not be guaranteed
if the applicants were placed together.
On 19 October it was decided not to reveal the child's
whereabouts to the first applicant. However, as from 26 October 1994,
i.e. seven days later, she was allowed to see her daughter regularly
for which reason the decision was revoked on 2 November 1994 as it was
no longer considered necessary.
The interim care order of 8 October 1994 was submitted to the
County Administrative Court (länsrätten) of Stockholm on
14 October 1994 in accordance with section 7 of the 1990 Act. On
20 October 1994 the Court confirmed the interim care order. The
decision was appealed against to the Administrative Court of Appeal
(kammarrätten) of Stockholm which on 10 November 1994 upheld the
interim care order. No appeal was lodged against the decision of the
Administrative Court of Appeal.
On 16 November 1994 the Social District Council requested the
County Administrative Court to issue a care order in accordance with
section 2 of the 1990 Act. The Council maintained that the second
applicant's parents lacked the ability to take care of their daughter
and that this implied a palpable risk of her health and development
being impaired. According to the arrangements suggested the care should
be provided in a foster home until it could be assessed whether the
first applicant herself could take care of her daughter.
The first applicant and her husband opposed a care order. The
second applicant's father admitted that he was unable to take care of
his daughter in view of the long prison sentence he was serving.
However, both he and the first applicant objected to the statement that
the latter lacked the ability to take care of their daughter. The
second applicant's appointed counsel supported a care order. The Court
heard a number of witnesses and medical experts.
By judgment of 11 January 1995 the Court granted the Social
District Council's request and ordered that care should be provided for
the second applicant in accordance with section 1, subsection 2 and
section 2 of the 1990 Act according to which care shall be ordered if
ill-treatment, improper exploitation, other lack of care for the child
or any other condition in the home entails a danger to the child's
health or development. In its judgment the Court analysed how the
parents had taken care of their daughter S and found that the first
applicant had been unable to protect S from injuries and violence. The
Court furthermore relied on professor R at Karolinska Sjukhuset in
Stockholm, an expert witness heard by the Court, and took into
consideration the fact that the first applicant needed more time to
cope with her husband's guilt and her own responsibility for S's death
when assessing her ability to take care of the second applicant. The
Court found it established that there were great deficiencies in the
first applicant's ability to take care of a child and that she failed
to see her lack of ability in spite of the qualified supporting
measures which had been taken by the social authorities. She had, in
the Court's view, been unable to benefit from the support she had
received in a satisfactory manner in order to satisfy a child's need
of care, protection and security. The Court finally found that the
second applicant's health and development could be secured only if she
was separated from her mother.
The Court's judgment was appealed against to the Administrative
Court of Appeal. By judgment of 5 May 1995 the Administrative Court of
Appeal rejected the appeal following an oral hearing. The Court noted
that the situation for the first applicant had changed as compared to
the situation existing upon her arrival in Sweden. She had undergone
certain psychiatric and psychological treatment from which she had been
able to benefit. She had realised that her parental responsibility for
her daughter had been unsatisfactory. Still the Court found that there
were deficiencies in her ability to take care of the second applicant
inter alia as regards the practical elements of the daily care. The
Court found that the deficiencies entailed a palpable risk for the
second applicant's health and development and that there was therefore
a need for public care. The Court further pointed at an urgent need for
the applicants to be placed together once a proper treatment home for
mother and child had been found.
The judgment of the Administrative Court of Appeal was appealed
against to the Supreme Administrative Court (Regeringsrätten) which on
29 September 1995 refused to grant leave to appeal.
Following the above judgment of the Administrative Court of
Appeal of 5 May 1995 the first applicant was on 17 August 1995 granted
assistance under the Social Services Act for the purpose of undergoing
treatment at Duvnäshemmet, a special treatment home for families with
social problems. On 5 September 1995 it was decided also to move the
second applicant to Duvnäshemmet.
On 12 June 1996 the Social District Council decided to
discontinue the care but the first applicant continues to receive
support from the staff at Duvnäshemmet. At present (October 1996) the
applicants are living together in a private apartment. The first
applicant has in May 1996 lodged an application with the District Court
of Nacka for a divorce from her husband, but no judgment has been
delivered yet.
The expulsion order
As indicated above, the first applicant and her husband's
applications for residence permits were turned down by the SIV on
11 July 1994. The applicants appealed against the decision and invoked
in support of their appeal inter alia the fact that the second
applicant had been taken into care under the 1990 Act.
On 4 July 1995 the Aliens Appeals Board rejected the appeal. It
concluded inter alia as follows:
(Translation)
"Considering that (the applicants) are without connection
with Sweden, the Board finds it would be best for them to
return to Peru together where, in the Board's opinion, they
both have the possibility of finding proper ways to develop
their future mother-child relationship. As for (the second
applicant) the Board considers it to be an advantage that
she is given the opportunity to develop her mother tongue
in her own cultural environment where she also has close
relatives. The Board has also considered that (the second
applicant's) father, after having served his prison
sentence, will be expelled to Peru. As for (the first
applicant) the Board cannot but find that a return to Peru
- together with her daughter - will mean that, with the
support of her relatives, she will have a good opportunity
to cope with the extreme pressure under which she has been
living in Sweden and to make plans for the future."
The Board finally pointed to the recent legislation in Peru which
emphasised the interest of the child, provided for care in cases of
neglect and ill-treatment and which, in the Board's view, complied with
the requirements of the UN Convention on the Rights of the Child.
A new request for a residence permit submitted by the first
applicant was rejected by the Board on 10 October 1995.
On 28 March 1996 the Board rejected yet another request for a
residence permit. In the Board's view there was nothing new which could
constitute a reason for quashing the previous expulsion order and
nothing indicated that it would be in violation of humanitarian demands
to enforce the expulsion order. The Board noted that the medical
experts and the social authorities did not seem to have prepared the
first applicant for a return to Peru as a part of the treatment she had
received and stated that it supposed that the social authorities
together with the first applicant would now make plans for her and her
daughter's return to Peru. The Board thus found it appropriate to
postpone the enforcement and granted the applicants a residence permit
until 31 August 1996.
It appears that a new application for a residence permit is at
present pending before the Aliens Appeals Board. In support of the
present application the applicants have submitted a report of
28 August 1996 drawn up by the Social District Council which states
inter alia as follows:
(Translation)
"In her role as a parent (the first applicant) is in need
of support from relatives as well as professionals.
At present (the second applicant's) need of security and
care can be best guaranteed through continuing support
measures in Sweden. The Council considers, therefore, that
(the applicants) should be granted a permanent residence
permit in Sweden.
The task of the social authorities is to ensure that
children and juveniles grow up under safe conditions, and
it is not limited only to those children who are placed in
public care under the 1990 Act. It is for that reason very
unfortunate that the social network, in which (the first
applicant's mother) was a natural and important part, has
been destroyed by the sudden enforcement of the expulsion
order regarding (the first applicant's mother)."
COMPLAINTS
1. The first applicant complains, under Article 8 of the Convention,
of the fact that her daughter, the second applicant, was taken into
care at birth and that she only had limited possibilities of seeing her
for a period of approximately one year.
2. The first applicant also complains that the placement of her
daughter and "the circumstances connected thereto" were such an
important and traumatic "interference" that it would amount to a
violation of Article 3 of the Convention.
3. The second applicant complains that her separation from her
mother during the first year of her life and her placement with
non-Spanish speaking foster parents violated Article 3 of the
Convention.
4. In respect of the possible deportation to Peru the first
applicant maintains that she risks political persecution in that
country and that therefore it would be contrary to Article 3 to return
her.
5. The second applicant complains, under Articles 3 and 5 of the
Convention, that a return to Peru would subject her to inhuman
treatment and loss of security of person due to the fact that her
mother, the first applicant, in incapable of taking proper care of her
in Peru.
6. Finally, the applicants complain that they do not have an
effective remedy since the aliens authorities have decided to reject
the applications for asylum regardless of the fact that the social
authorities decided to take the second applicant into care.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 8 October 1995 and registered
on 17 October 1995.
On 17 October 1995 the Commission decided to indicate to the
Government of Sweden, pursuant to Rule 36 of its Rules of Procedure,
that it was desirable in the interest of the parties and the proper
conduct of the proceedings before the Commission not to deport the
applicants to Peru until the Commission had had an opportunity to
examine the application further.
The Commission furthermore decided to invite the Government to
submit written observations on the admissibility and merits of the
application.
The Commission's indication under Rule 36 of its Rules of
Procedure has subsequently been prolonged until the Commission has had
an opportunity to examine the application in the light of the parties'
written observations.
On 7 March 1996 the Commission decided to adjourn the examination
of the application pending the outcome of certain domestic proceedings.
Following the conclusion of these proceedings the Commission decided,
on 24 May 1996, to extend until 31 August 1996 the time-limit for the
submission of the Government's observations on the admissibility and
merits of the application.
Following an extension of this time-limit the Government's
observations were submitted on 6 September 1996. The applicants'
observations in reply were submitted on 3 October 1996.
THE LAW
1. In respect of the taking into care of the second applicant, the
first applicant complains that this was an unjustified interference
with her right to respect for her family life. She invokes in this
respect 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."
The Commission considers, which is undisputed, that the taking
into care of the second applicant interfered with the first applicant's
right to respect for her family life. Such an interference constitutes
a violation of Article 8 (Art. 8) of the Convention unless it was "in
accordance with the law", had an aim that was legitimate under Article
8 para. 2 (Art. 8-2) and was "necessary in a democratic society" for
the aforesaid aim (cf. e.g. Eur. Court HR, Margareta and Roger
Andersson v. Sweden judgment of 25 February 1992, Series A no. 226, p.
25, para. 73 with further references).
In the present case it is undisputed that the interference was
in accordance with the law as the measures taken had their legal basis
in the 1990 Act with Special Provisions on the Care of Young Persons.
Furthermore, in the Commission's view the relevant Swedish legislation
which was applied in this case is clearly designed to protect children
and there is nothing to suggest that it was applied for any other
purpose. The interference in question, which was intended to safeguard
the health and development of the second applicant therefore had, for
the purposes of paragraph 2 of Article 8 (Art. 8-2), the legitimate aim
of protecting the "rights and freedoms of others".
What remains is accordingly to examine whether the interference
was "necessary in a democratic society".
According to the established case-law of the Commission and the
Court, the notion of necessity implies that the interference
corresponds to a pressing social need and, in particular, that it is
proportionate to the legitimate aim pursued. In determining whether an
interference is "necessary in a democratic society", the Commission
will also take into account that a margin of appreciation is left to
the Contracting States, but its review is not limited to ascertaining
whether a respondent State exercised its discretion reasonably,
carefully and in good faith. Furthermore, in exercising its supervisory
function, the Commission cannot confine itself to considering the
impugned decisions in isolation, but must look at them in the light of
the case as a whole. It must determine whether the reasons adduced to
justify the interference at issue were "relevant and sufficient" (cf.
e.g. Eur. Court HR, Olsson v. Sweden judgment of 24 March 1988,
Series A no. 130, pp. 31-32, paras. 67-68).
When applying the above criteria to the facts of the present case
the Commission recalls that the second applicant was taken into care
on an interim basis when she was born on 8 October 1994. The first
applicant maintains, and this is disputed by the Government, that there
was no reason for such a measure.
The Commission considers that the taking into care of the second
applicant on 8 October 1994 pursuant to the provisions of the 1990 Act
was based on relevant and sufficient reasons. Prior to this interim
measure the first applicant had been in contact with the social
authorities on several occasions due to severe problems in her family.
She had, as an asylum-seeker in Sweden, witnessed her husband's
ill-treatment of their daughter S, her death caused thereby and the
arrest and detention of her husband. The family had been accommodated
in a special home in order to obtain assistance which did not prevent
the tragic death of her first child. It was on the basis of this
information that the social authorities and the courts found that the
applicant was incapable of taking proper care of the second applicant.
Having regard to this the Commission finds that there were relevant and
sufficient reasons for the interim measure of care and, having regard
to the margin of appreciation of the Swedish administrative authorities
and courts, that these authorities and courts could reasonably consider
that such an order was necessary.
Following the interim measure of care the issue was examined
again by the County Administrative Court, the Administrative Court of
Appeal and, in so far as the question of leave to appeal was concerned,
the Supreme Administrative Court due to the social authorities'
application for care pursuant to the relevant provisions of the 1990
Act. Their judgments were based on the examination carried out by the
social authorities, the conclusions of the expert appointed, the
statements of the first applicant and other witnesses as well as the
courts' own impressions obtained during the hearings held in the case
at two levels. The County Administrative Court and the Administrative
Court of Appeal established that the first applicant was not, in the
circumstances, capable of taking proper care of the second applicant
and that any other solution than public care would endanger her health
and development.
The Commission also recalls that the care order did not mean that
the applicants were subject to total separation. The facts of this case
clearly show that measures were taken in order to ensure a continuing
contact between mother and child and that these measures were aimed at
reuniting them.
In the light of these various elements the Commission finds that
the decisions taken by the administrative authorities and the courts
as to the imposition and maintenance of the care order from 8 October
1994 until 12 June 1996 did not interfere with the first applicant's
right to respect for her family life in a way which cannot be
considered as being justified under paragraph 2 of Article 8
(Art. 8-2) of the Convention.
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The first applicant also complains in a more general manner that
the public care and "the circumstances connected thereto" were such an
important and traumatic "interference" that it would amount to a
violation of 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 Commission understands the first applicant's sentiments
having regard to the problems with which she was faced. However, the
present case does not disclose any reason for believing that the
Swedish authorities acted in a way which would call for a further
examination of this part of the application.
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. The second applicant complains, through her representative, that
her separation from her mother and her placement in a foster home
violated Article 3 (Art. 3) of the Convention.
The Commission recalls from above that the care order was made
in order to protect the second applicant during a period when she was
less than one year old. Nothing indicates that this separation, which
was not absolute, or her placement caused her such suffering - if any -
that a further examination of this complaint would be required.
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
4. In respect of the possible deportation to Peru the first
applicant maintains that she risks political persecution in that
country and that, therefore, a deportation would amount to a violation
of Article 3 (Art. 3) of the Convention. The Government dispute this.
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 HR, Vilvarajah and Others v. the United Kingdom
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 or she is to be expelled (ibid., para. 103). A mere possibility of
ill-treatment is not in itself sufficient (ibid., p. 37, para. 111).
In the present case the first applicant has not substantiated
that she would today face any political persecution or other real risk
of treatment contrary to Article 3 (Art. 3) of the Convention if
returned to Peru. Thus, the Commission considers, on the evidence
before it concerning the first applicant's background, that it has not
been established that there are substantial grounds for believing that
she would be exposed to a real risk of being subjected to treatment
contrary to Article 3 (Art. 3) of the Convention if returned to Peru.
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
5. The second applicant complains, through her representative, that
a return to Peru would subject her to inhuman treatment and loss of
security of person contrary to Articles 3 and 5 (Art. 3, 5) of the
Convention due to the fact that her mother is incapable of taking
proper care of her in Peru. She refers in particular to the views of
the social authorities which as recently as 28 August 1996 have
submitted that the first applicant in her role as a parent is in need
of support from relatives as well as from professionals and that the
second applicant's need of security and care can be guaranteed better
through continuing supporting measures in Sweden.
The Government maintain that Article 5 (Art. 5) is not applicable
to the facts complained of and that in any event this complaint is
manifestly ill-founded. As regards Article 3 (Art. 3) the Government
point out that today the applicants have been living together for more
than a year and the care order was lifted already in June 1996.
Although, as a matter of Swedish law, there are no impediments against
enforcing the expulsion order today, the Government submit that this
should in any event "meet the child's needs and interests and
(presuppose) that a more normal relationship has been established
between (the applicants)".
As regards Article 5 (Art. 5) of the Convention the Commission
agrees with the Government that this provision does not apply in the
circumstances of the present case. Furthermore, although the Commission
would not exclude that the second applicant would be better off were
she to remain in Sweden together with her mother, it recalls that such
a right is not guaranteed by the Convention or its Protocols, nor would
this as such be sufficient to establish that their return to Peru would
violate Article 3 (Art. 3) of the Convention. Today no care order
exists in respect of the second applicant and the Commission does not
find it established that the first applicant's care for her daughter
would endanger the latter's health or development. Furthermore, the
Commission finds that the conditions in Peru are such that the second
applicant's return to that country, together with her mother, does not
disclose any appearance of a violation of Article 3 (Art. 3) of the
Convention.
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
6. Finally, the first applicant complains that there was no
effective remedy available to her for challenging the alleged
violations of the Convention. She invokes Article 13 (Art. 13) of the
Convention which reads:
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy
before a national authority notwithstanding that the
violation has been committed by persons acting in an
official capacity."
The Government maintain that as the alleged violations are, in
their view, all manifestly ill-founded the applicant does not have any
arguable claims for the purpose of Article 13 (Art. 13). In any event
the Government maintain that the administrative courts and the Aliens
Appeals Board were effective remedies in respect of the claims made.
The Commission finds it can be left open whether the first
applicant had any "arguable claims" for the purpose of Article 13
(Art. 13) of the Convention. As far as the care proceedings are
concerned the issues were determined by the administrative courts which
are, undoubtedly, effective remedies within the meaning of Article 13
(Art. 13) of the Convention. Furthermore, in respect of the request for
a residence permit, the Commission notes that an appeal against the
SIV's decision lies with the Aliens Appeals Board which has the power
to decide the matter regardless of the outcome in the previous
proceedings. The mere fact that an appeal for reason of substance is
not successful does not mean that this remedy is not "effective" within
the meaning of Article 13 (Art. 13) of the Convention.
It follows that this part of the application is also 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.
H.C. KRÜGER S. TRECHSEL
Secretary President
to the Commission of the Commission
Full & Egal Universal Law Academy