AS TO THE ADMISSIBILITY OF
Application No. 18275/91
by F.B.M.
against Sweden
The European Commission of Human Rights sitting in private on
7 December 1992, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
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 4 April 1991 by
F.B.M. against Sweden and registered on 28 May 1991 under file
No. 18275/91;
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 14 October 1992 and the observations in reply submitted
by the applicant on 16 December 1991;
Having deliberated;
Decides as follows:
THE FACTS
Particular circumstances of the case
The facts of the case, as submitted by the parties, may be
summarised as follows.
The applicant is a citizen of Ecuador, born in 1954. Before the
Commission he is represented by Mr. Hans Göran Franck, a lawyer from
Stockholm and a member of the Swedish Parliament.
The applicant arrived in Sweden on 6 March 1990. On 13 March
1990, he applied for a residence and work permit relying mainly on the
fact that his father and mother and ten out of a total of fourteen
brothers and sisters were living in Sweden; most of them had come to
the country as refugees in 1972-73 and had been granted residence
permits; the father and four of his children had also become Swedish
citizens. The applicant stated that he had stayed some 14 years in Cuba
where he had become a paediatrician. In Cuba he had also married a
Cuban woman in 1983 and together they had a child born in 1985. He had
been compelled to return to Ecuador in May 1989 as his student grant
had expired. He had left his wife and child in Cuba but hoped to be
able to reunite with them in Sweden as soon as his wife had terminated
her studies in Cuba. He added that his request had also a political
background but that he nevertheless invoked his family connections with
Sweden.
The National Immigration Board (Statens invandrarverk,
hereinafter "the Board") rejected the application on 28 May 1990 and
ordered the applicant's expulsion (avvisning) to Ecuador unless he
could show that he would be accepted in some other country. In its
decision the Board noted that the applicant's wife and child were still
living in Cuba and that he had lived there himself until 18 May 1989.
It concluded that the circumstances of the case were not such as to
enable it to grant the application.
The applicant appealed to the Government invoking, inter alia,
a medical certificate dated 8 June 1990 and signed by Mr. Hans Link,
a professor of neurology. The certificate stated the following as
regards the applicant's background. The applicant had encountered
serious problems when he had returned to Ecuador as a result of his
Cuban background: mainly numerous interrogations and great difficulties
in being accepted for work. As a result of these harassments his
Swedish family had decided to have him admitted to Sweden. However,
before the applicant had time to leave Ecuador he was hit by a
circulation disorder in the brain which paralysed the right side of his
face and caused speech problems. He was treated for a short period of
time at an Ecuadorian hospital and improved somewhat whereafter he left
for Sweden where he applied for political asylum. As regards the
applicant's physical condition the certificate stated that his right
leg and arm were hit by a paralysis of medium severity, and that the
right side of his face was slightly paralysed. It added that his
condition had improved somewhat as a result of the physiotherapy given
and that the treatment planned could further improve the
applicant's condition. The certificate concluded:
(translation)
"... expulsion of the patient from Sweden will in all
probability have a number of extremely serious consequences
for the patient: social isolation and misery since, as a
matter of fact, his whole family is living in Sweden and
since he cannot obtain gainful employment in Ecuador for
political and medical reasons; continued oppression as the
patient will be viewed as a subversive element and
potential spy because of his Cuban past; and unfavourable
medical consequences as the patient will not, because of
his low social status, receive even the elementary care and
rehabilitation training which is necessary for improving
his condition and the possible restoration of his health.
I find that even very elementary and humanitarian and
medical and also political reasons will be ignored if the
patient is expelled to Ecuador."
The Government dismissed his appeal on 18 October 1990 stating
that they found no reason to change the Board's assessment and that it
was obvious that the applicant should not be granted a residence
permit.
On 28 December 1990 the applicant, who was now represented by Mr.
Franck, lodged a further application for a residence permit with the
Board, this time relying also on political and humanitarian grounds.
He also requested the Board to use its powers under the Aliens Act
(utlänningslagen) and stop the enforcement of his expulsion to Ecuador.
In this application the applicant invoked, inter alia, the
following as regards the political grounds.
The applicant's family had been politically engaged in the fight
against misery and oppression in Ecuador for a long time. They were
all members of the "Partido Socialista Revolucionario Ecuadoriano".
In 1972 his eldest brother José Bazurto was killed together with a
person called Luis Salazar Jara while they were trying to organise the
farmers. One of his cousins was sentenced to the severest penalty
provided for by law, but he was freed after 7 years because of the
intervention of Amnesty International and was subsequently authorised
to take up domicile in Sweden. Two elder brothers, Raúl and Ramón,
were convicted in their absence by a special military tribunal,
"Tribunal Especial", but managed to flee to Chile, via Peru, from where
they continued to lead clandestine operations during the years
1972-1975.
In 1975 the highest body of the party decided that the situation
had become so dangerous that it would be better for the family to leave
the country for Cuba where its members would receive military training.
In February 1975 the applicant and his sister Judith went to Peru to
contact a representative of the Government of Cuba, Margarita
Gutierrez. After she had discussed with them the security aspects of
their admission into Cuba, they could go back to Ecuador. In August
1975, they received a message that they were welcome and on the 20th
of that month they left for Cuba, via Peru. All their travel expenses
were covered by the Cuban state.
In Cuba they were again interrogated as to their political and
religious convictions and as to their academic studies. After having
accepted to undergo military training with a view to future actions in
their respective home countries they were sent to "Instituto Pre-
Universitario" in Siboney, in the County of Havana where they received
their first military training. After one year they were transferred
to a school called "República Popular del Congo" in Artemiza, also in
the County of Havana. Here their military training was intensified.
They stayed at this school for two years.
The applicant was thereafter given the opportunity of studying
medicine at "Instituto Superior de Ciencias Médicas" in Santiago de
Cuba. During his studies military training was reduced to two hours
daily. After he had taken his degree as military doctor he performed
certain services at a military regiment, "Camilo Cien Fuego".
The applicant hereafter studied paediatrics. During these
studies he continued his military training.
After he had passed his examination as a paediatrician, he was
sent to a special department for assistance to liberation movements in
the third world, where he was assigned, in particular, to study the
behaviour of American soldiers.
During his stay in Cuba the applicant married a Cuban doctor and
the couple had a child. However, around 1986, when the child was one
year old the couple separated, formal divorce being impossible as both
were Catholics.
In August 1989, as a result of his having finished his studies,
he was ordered to leave Cuba and to go back to Ecuador.
When he arrived in his home country the applicant started to look
for work, but he met with blank refusals everywhere. The military
authorities subjected him to a number of different interrogations, both
in Quito and in Guayaquíl. The authorities were very interested to know
what he had seen in Cuba. They threatened to make him disappear without
a trace if he did not cooperate with them, whereas he would receive the
best possible employments if he did. As he refused, he was subjected
to harassment and threats of various kinds. At the end the applicant
could not stand the situation any longer and suffered a circulation
disorder in the brain on 20 January 1990.
On 5 March 1990, he left Ecuador for Sweden in order to reunite
with his mother and father and most of his brothers and sisters who
were staying there.
With special regard to the humanitarian grounds, the applicant
invoked amongst other things a medical certificate dated 11 December
1990 and signed by Professor Hans Link and Mr. Åke Sidén, a chief
physician at Huddinge hospital. According to the certificate the
applicant is still suffering from the effects of the previous
circulation disorder in the brain. His right arm and leg are partly
paralysed and so is, although to a lesser extent, the right side of his
face. As regards the applicant's situation in Ecuador, if returned
there, the certificate reiterated the conclusions reached by Professor
Link in his certificate of 8 June 1990.
On 7 January 1991, the Board rejected the application. The
grounds for its decision read:
"Political grounds have been invoked in this case. The
political grounds invoked do not give a right to asylum.
A medical certificate from Huddinge hospital has been
filed. Special reasons of a humanitarian character are not
present.
The reasons concerning family ties have been examined
earlier in the expulsion case and have not been found to be
sufficient.
The application shall accordingly be rejected.
...
This decision cannot be appealed."
The following information was supplied by the applicant to the
Commission by letter of 3 May 1991. His state of health, both physical
and mental, has worsened rather than improved while he has been waiting
for the enforcement of the expulsion decision due to a lack of adequate
treatment; he has difficulties with his speech; he cannot move about
without the assistance of another person and he needs to have his
family around him; he is depressed but cannot contact a doctor because
of the expulsion decision. He has no possibilities to receive adequate
treatment in Ecuador: the specialist treatment he requires is far too
expensive and available help in acute situations insufficient as it
does not provide the continuous follow-up which his condition requires.
What is most important for his recovery is the social and human care
which he receives from his family in Sweden. Such care would be
impossible in Ecuador as he no longer has any relatives there. No
special measures seem to have been taken by the Swedish authorities to
facilitate his return there.
The applicant has indicated that deportation may take place at
any time.
The situation in Ecuador
Ecuador is a country populated by some 10 million people. Its
present democratic constitution came into force on 10 August 1979 after
a 9 year period of civil and military dictatorship. The new
constitution has been modelled on that of the United States of America.
The Congress is since 1988 dominated by the "Isquierda Democrática",
which could be described as a liberal social democratic party.
The general situation of the country has been described by the
Swedish Government as follows:
As a result of an expanding oil export industry, Ecuador's GNP
per capita has increased considerably during recent years. Although
unemployment rates are uncertain, unemployment or underemployment seem
to affect a large proportion of the population. Average life expectancy
is now exceeding 65 years of age. The ratio of doctors is approximately
one to 870 persons. A social security system exists, but there may be
some doubt as to its efficiency. Although there still are problems -
e.g. with respect to Indians, the conditions in prisons and ill-
treatment, especially in the countryside - the human rights situation
in Ecuador has improved considerably in recent years.
Immigration to Sweden
The Swedish Government have submitted the following information
as regards immigration to Sweden, in particular with regard to that
from Ecuador:
During the period from July 1990 to June 1991 about 24,000 aliens
applied for a residence permit in Sweden. In 1990, 31 Ecuadorians
requested a residence permit in Sweden.
In 1990 the immigration authorities dealt with twenty cases
concerning persons from Ecuador. Seventeen of them did not succeed in
obtaining residence permits in Sweden. The rejection rate during 1990
with regard to presumptive immigrants from Ecuador was thus
85 per cent. As a comparison, the rejection rates with regard to
Colombia, El Salvador and Peru were 23, 21 and 49 per cent,
respectively, during 1990.
COMPLAINTS
1. The applicant complains that his expulsion to Ecuador would
constitute a violation of Article 3 of the Convention in that he would
be exposed to treatment contrary to this provision on account of his
political background, his state of health and his family conditions.
2. He also claims that the expulsion decision violates Articles 6
as he could not challenge it before a court.
3. He finally maintains that he did not have an effective remedy
before a national authority in respect of his complaints under the
Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 4 April 1991. On 12 April 1991
the Commission rejected a request from the applicant for assistance
under Rule 36 of the Commission's Rules of Procedure in order to
prevent his expulsion to Ecuador. The application was registered on
28 May 1991.
On 7 June 1991 the Commission decided to give notice of the
application to the respondent Government and to invite them to submit
observations in writing on the admissibility and merits of the
application.
On 14 October 1991 the Government submitted their observations
to which the applicant replied on 16 December 1991.
THE LAW
1. The applicant complains that his expulsion to Ecuador would be
contrary to Article 3 (Art. 3) of the Convention in that he would be
exposed to treatment contrary to this provision on account of his
political background, his state of health and his family conditions.
Article 3 (Art. 3) reads:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
The Government question whether the applicant has exhausted
domestic remedies in the manner required by Article 26 (Art. 26) of the
Convention. They emphasise that a new application for a residence
permit may at any time be lodged with the Board which will be under a
duty to examine the application in order to ascertain if such a permit
should be granted on account of new circumstances. They state that, in
view of this, it could be argued that domestic remedies cannot be
exhausted until the applicant has actually been expelled from Sweden.
The Commission is not convinced of this reasoning. Under Article
26 (Art. 26) an applicant must only exhaust remedies which are
apparently effective and sufficient (see, inter alia, No. 9697/82,
Dec. 7.10.83, D.R. 34 p. 131). A new application for a residence permit
could only be considered an effective remedy if the applicant alleged
the existence of new relevant circumstances. In the present case, the
applicant has not invoked any new circumstances before the Commission
but only reiterated and developed the arguments which he submitted to
the Board already in the application dated 28 December 1990.
Furthermore, the Government have not provided any information to the
effect that the practice of the Board in cases such as the present has
changed in the meantime. Accordingly, a further request to the Board
reiterating the same arguments as those contained in the earlier
application cannot be considered as an effective remedy within the
meaning of Article 26 (Art. 26) of the Convention. In addition, it is
constant case-law that a person facing extradition or expulsion to a
foreign state may, where the measure is imminent, claim to be a victim
of a violation of the Convention even before the actual expulsion,
e.g. if the measure might expose him to a serious risk of treatment
contrary to Article 3 (Art. 3) of the Convention in the country to
which he is to be returned (see, inter alia, No. 10479/83, Dec.
12.3.84, D.R. 37 p. 158; Eur. Court of H.R., Vilvarajah and Others
judgment of 30 October 1991, Series A No. 215, p. 34, para. 103).
The Commission accordingly concludes that the applicant can claim
to be a victim of the alleged violation of Article 3 (Art. 3) of the
Convention although he has not been expelled to Ecuador. It also finds
that he has exhausted domestic remedies in the manner prescribed by
Article 26 (Art. 26) of the Convention.
As regards the seriousness of the risk of treatment contrary to
Article 3 (Art. 3) the applicant has stressed the following: first,
that he is perceived as a potential enemy of the Ecuadorian Government
as a result of his military training in Cuba and his family's political
involvement in Ecuador; secondly, that he would not be able to take
care of himself in Ecuador because of the paralysis which has affected
his right side and which makes it difficult for him to move without
assistance and to talk; finally, as he no longer has any relatives in
Ecuador he cannot depend on his family for the treatment and care which
his physical condition requires. He maintains that, in view of his
political background and family situation, he faces a serious risk of
not receiving necessary care and assistance if returned to Ecuador. As
most of his family live in Sweden it is in this country that he would
have the best possibilities to deal with his handicaps.
With regard to the political reasons invoked, the Government
stress that the applicant has never applied for political asylum in
Sweden. Considering what the Government know about the situation in
Ecuador, they find it highly unlikely that the applicant would be
subject to any harassment there today, even assuming that his story as
regards his background is true - something which is not proved. As
regards the humanitarian grounds invoked, the Government maintain that
Article 3 (Art. 3) of the Convention should be interpreted
restrictively and that the Article cannot oblige the State concerned
to grant a residence permit to any person within its jurisdiction who
needs medical treatment or who finds it easier to support him- or
herself financially there. They also observe that the assessments of
the social, economic and political situation in Ecuador made in the
medical certificates submitted by the applicant are presumably based
mainly on the applicant's own account of the situation in the country.
They finally note that the applicant was able to travel by himself from
Ecuador to Sweden and his state of health does not appear to have
worsened after this journey. If he were to require assistance during
the return journey such assistance would be provided by the Swedish
authorities. Taking into account that the Convention contains no rights
to health or medical care of a certain standard, nor any right to
gainful employment, they do not find it established that his physical
condition prevents his undertaking the home voyage or could cause him
such economic or social hardships in Ecuador, which is a democratic
country with an existing health care and social security system and a
developing economy, that his expulsion would amount to a violation of
Article 3 (Art. 3).
The Government maintain that the fact that most of the
applicant's relatives reside in Sweden does not alter the above
conclusion. The applicant is 36 years old and has founded a family of
his own, although his wife and child are still in Cuba. Judging from
the information supplied by the applicant after his arrival in Sweden,
his intention seems to have been to resume family life as soon as his
wife finished her education in Cuba.
The applicant has questioned whether Ecuador could really be
called a democracy and whether the health care and social security
system there is sufficiently developed, inter alia as regards the
number of doctors. He has also stressed that he was only able to travel
from Ecuador to Sweden as a result of the help he received from a niece
and from the airline personnel; he could never have undertaken the
travel without assistance. He has also replied that it was only on
account of a mistake due to his speech problems that his first
application for a residence permit was interpreted as invoking merely
family reasons.
The Commission recalls that the Contracting States have the
right, as a matter of well-established international law and subject
to their treaty obligations including Article 3 (Art. 3), to control
the entry, residence and expulsion of aliens, and furthermore that the
right to political asylum is not contained in the Convention or its
Protocols (see, inter alia, the above mentioned Vilvarajah and Others
judgment, p. 34, para. 102). However, whereas the expulsion of a an
alien may give rise to an issue under Article 3 (Art. 3), and hence
engage the responsibility of that State under the Convention, where
substantial grounds have been shown for believing that the person
concerned faces a real risk of being subjected to torture of to inhuman
or degrading treatment or punishment in the country to which he is
returned, a mere possibility of ill-treatment is not in itself
sufficient in this context (ibid. pp. 34 and 36, paras. 103 and 107).
Furthermore, ill-treatment must attain a minimum level of severity if
it is to fall within the scope of Article 3 (Art. 3) (ibid. p. 37,
para. 111).
The Commission has examined the applicant's allegation of
possible ill-treatment if returned to Ecuador in the light of the above
case-law. The Commission accepts that the applicant's return to Ecuador
could involve considerable hardships. However, in the circumstances of
the case it does not find that there are substantial grounds for
believing that he is faced with a real risk of being subjected to
treatment contrary to Article 3 (Art. 3) if returned to that country.
In reaching its decision the Commission has in particular considered
that neither the applicant's own nor his family's political background
can today, in the light of the present situation in Ecuador, warrant
the conclusion that the applicant would be subjected to harassment or
excluded from existing medical care or social benefits in Ecuador in
a manner which would amount to inhuman or degrading treatment. In this
context it has also noted that the Swedish authorities would provide
the applicant with the assistance required to enable him to undertake
the long journey back in safe conditions.
The Commission accordingly concludes that the applicant's
complaint under Article 3 (Art. 3) of the Convention has to be rejected
as being manifestly ill-founded in accordance with Article 27 para. 2
(Art. 27-2) of the Convention.
As regards the applicant's reliance on his relations with his
mother and father and brothers and sisters in Sweden, the Commission
observes the following. Considering its conclusion above and the fact
that the applicant has founded a family of his own - even if he seems
to have separated from his wife, who appears presently to be in Cuba
with their child - his relationship with his family in Sweden cannot,
for the purposes of the Convention and, in particular Articles 3 and
8 (Art. 3, 8), be said to extend to more than ordinary emotional ties.
Taking into account the important considerations relating to the proper
enforcement of immigration controls the Commission cannot find that the
existence of these ties could have as effect that his expulsion from
Sweden would amount to a violation of the Convention (cf., inter alia,
No. 12122/86, Dec. 16.10.86, D.R. 50 p. 268).
It follows that this aspect of his complaint must also be
rejected as being manifestly ill-founded within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention.
2. The applicant also complains about the absence of any court
review of the expulsion decision and alleges a violation of Article 6
(Art. 6) of the Convention.
The Commission recalls, however, that according to established
case-law, Article 6 (Art. 6) does not apply to the procedure for
expulsion of an alien (see, inter alia, No. 8118/77, Dec. 19.3.81, D.R.
25 p. 105).
This complaint is therefore incompatible, ratione materiae, with
the provisions of the Convention and must be rejected according to
Article 27 para. 2 (Art. 27-2) of the Convention.
3. The applicant finally alleges a violation of Article 13 (Art. 13)
of the Convention in that he claims not to have had any effective
remedy before a national authority in respect of the decision to expel
him to Ecuador.
The Commission recalls that Article 13 (Art. 13) requires that
any individual who has an arguable claim to be the victim of a
violation of the rights set forth in the Convention should have a
remedy before a national authority in order both to have his claim
decided and, if appropriate, to obtain redress (see, inter alia, Eur.
Court H.R., Leander judgment of 26 March 1987, Series A No. 116,
pp. 29-30, para. 77 and Boyle and Rice judgment of 27 April 1988,
Series A no. 131, pp. 23-24, paras. 52 - 55).
The Commission recalls that it has rejected the applicant's
complaints as manifestly ill-founded on the ground that it has not
found either that there are substantial grounds for believing that he
is faced with a real risk of being subjected to treatment contrary to
Article 3 (Art. 3) of the Convention if returned to Ecuador or that his
family ties with relatives in Sweden are such that his expulsion would
amount to a violation of the Convention. Against this background the
Commission does not consider that the applicant's complaints can be
described as "arguable" for the purposes of Article 13 (Art. 13) of the
Convention.
It follows that this part of the application is also manifestly
ill-founded and has to be rejected in accordance with Article 27
para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission by a majority
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy