AS TO THE ADMISSIBILITY OF
Application No. 26516/95
by Mashiur Rahman BHUYIAN
against Sweden
The European Commission of Human Rights sitting in private on
14 September 1995, the following members being present:
MM. S. TRECHSEL, President
H. DANELIUS
C.L. ROZAKIS
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 14 February 1995
by Mashiur Rahman Bhuyian against Sweden and registered on
15 February 1995 under file No. 26516/95;
Having regard to the reports provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to the observations submitted by the respondent
Government on 24 March 1995 and the observations in reply submitted by
the applicant on 28 April 1995;
Having regard to the supplementary observations submitted by the
applicant on 9 and 30 June 1995 and by the respondent Government on
16 June and 4 July 1995;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a citizen of Bangladesh, born in 1967 and
currently placed in compulsory psychiatric care in a hospital at
Skellefteå, Sweden. He is represented by Ms. Ewa Lilliesköld, a lawyer
in Stockholm.
The facts of the case, as submitted by the parties, may be
summarised as follows.
Particular circumstances of the case
The applicant first entered Sweden on 16 February 1990. On
19 February 1990 he requested asylum in Sweden, fearing persecution for
political reasons. He had allegedly, on three occasions, been arrested
and ill-treated by the police of Bangladesh on account of his position
as Chairman of a branch of the youth league of the Bangladesh
Nationalist Party ("BNP"). The most recent arrest had allegedly
occurred in November 1989 during a demonstration organised by the BNP.
He had also been charged with and convicted of various offences
following false accusations made by his political opponents.
On 23 November 1990 the National Immigration Board (Statens
invandrarverk) refused the applicant's request.
On 13 June 1991 the Government upheld the refusal, considering
that the applicant's fears of ill-treatment on his return to Bangladesh
were highly exaggerated, having regard to his political connections and
the political changes in that country.
Between December 1991 and January 1992 the applicant lodged
three unsuccessful new requests for a residence permit, invoking
humanitarian grounds. In one of these requests, of 16 December 1991,
he invoked a medical report of November 1991 reproducing, inter alia,
the applicant's statements to the effect that he had been tortured
during his arrest in 1986 and that he had been assaulted during
subsequent arrests in 1987 and 1989.
On 16 December 1991 the applicant was hospitalised at his own
request. According to the hospital diary for 19 December 1991 the
applicant had ripped his bed cover and placed it around his neck. He
had also broken a glass and scratched himself with it before the staff
were able to stop him.
On 4 January 1992 the applicant was examined by Dr. Anette
Voltaire-Carlsson, a psychiatrist, who concluded that his health did
not constitute an obstacle to the enforcement of the expulsion order.
The expulsion order was enforced on 30 January 1992, the
applicant being transported in a wheel-chair and having been given
sedatives. In Bangladesh he was met by staff of the Swedish Embassy,
who assisted him through the passport control.
On 18 December 1992 the applicant again entered Sweden. On
30 December 1992 he lodged a fresh asylum request, again referring to
his fear of being persecuted on political grounds in Bangladesh. In the
alternative, he requested a residence permit on humanitarian grounds.
He alleged that he had been excluded from the BNP in May 1991.
Subsequently he had been wanted by the police, having falsely been
accused of robbery. This allegedly false accusation had been made by
his political opponents. In May 1992 he had escaped to India, where a
smuggler had provided him with a false passport. His brother had
allegedly been arrested in Bangladesh in November 1992 and the police
had assaulted him in order to obtain information about the applicant's
whereabouts. Subsequently the brother had also left the country.
On 25 August 1993 the applicant was granted an eighteen-month
passport by the Embassy of Bangladesh in Sweden.
On 26 November 1993 the National Immigration Board rejected the
applicant's asylum request. It noted, in particular, that in his
initial asylum request he had referred to his membership of the BNP,
whereas his fresh request had referred to his exclusion from that
organisation in May 1991. The Board also took note of the fact that the
applicant had obtained a Bangladeshi passport. It considered therefore
that he was not wanted in that country. The Board furthermore found no
grounds for granting him a residence permit.
The applicant's appeal was rejected by the Aliens Appeals Board
(Utlänningsnämnden) on 25 March 1994 following which his mental health
allegedly deteriorated.
On 12 August 1994 the applicant lodged a new request for a
residence permit, invoking humanitarian grounds and referring to, inter
alia, a medical report of 6 August 1994 by Dr. Mikael Brune, a
psychiatrist and neurologist. According to Dr. Brune, an enforcement
of the expulsion order concerning the applicant would entail a risk
that he might commit suicide.
On 19 August 1994 the Aliens Appeals Board rejected the
applicant's new request.
On 21 November 1994 the applicant voluntarily sought psychiatric
care and was admitted to the hospital clinic where he is presently
staying.
In a medical report of 21 December 1994 written by
Dr. Mikael Granström, Senior Physician specialising in psychiatry, and
confirmed by Dr. Bengt Häggqvist, Senior Physician specialising in
neurology, the applicant was considered seriously mentally ill. He was
found to suffer from schizophrenia and paranoia. He was suffering from
insomnia. He was refusing to eat, fearing food poisoning. He was
showing suicidal symptoms and was often found beating his head against
the wall. On one occasion he had slashed his wrist.
On 9 January 1995 the applicant lodged a further request for a
residence permit on humanitarian grounds, invoking the report of
21 December 1994. This request was rejected by the Aliens Appeals Board
on 12 January 1995.
According to a further medical report of 18 January 1995 written
by Dr. Granström and by Dr. Maia Alvariza, Acting Senior Physician, the
applicant's mental health had deteriorated further. As he had committed
several suicide attempts, his care had been converted from voluntary
to compulsory treatment. He was not considered fit to be transported.
According to an oral medical report given by Dr. Granström to the
applicant's lawyer of 30 January 1995, the applicant was considered to
be "dying" and could no longer be "force-fed".
In view of the fresh reports concerning his health the applicant
lodged a request for a reconsideration of the Aliens Appeals Board's
decision of 12 January 1995, alternatively a request that the matter
be referred to the Government. The requests were considered as a new
request for a residence permit which was rejected by the Aliens Appeals
Board on 31 January 1995.
According to a further oral medical report given by Dr. Granström
to the applicant's lawyer of 3 February 1995, the applicant's state of
health was deteriorating day by day. He had lost considerable weight
and was being fed with the help of a probe.
On 3 February 1995 the applicant lodged a further request for a
residence permit on humanitarian grounds, invoking Dr. Granström's
report of that day. On 10 February 1995 he also requested that the
Aliens Appeals Board should hear one of the physicians whom it normally
consulted in expulsion matters (förtroendeläkare). The applicant
referred to an entry in his medical journal dated 9 February 1995 and
worded as follows:
(translation from Swedish)
"[The applicant] is now clearly expressing a wish that he
should no longer receive nourishment through a probe. He is
unable to mount any active resistance. Force-feeding
is inconsistent with the patient's right to
self-determination. It is therefore necessary to subject
him to compulsory treatment."
On 10 February 1995 the Aliens Appeals Board rejected the
applicant's requests of 3 and 10 February 1995.
On 17 February 1995 the County Administrative Court (länsrätten)
of Västerbotten consented to the compulsory care of the applicant for
four months.
A report of 7 June 1995 submitted at the applicant's request by
Dr. Granström and Dr. Carl-Gustaf Olofsson, Chief Medical Officer,
states, inter alia, as follows:
(translation from Swedish)
"... On 31 January an intravenous drip was installed
because it was becoming increasingly difficult for the
patient to eat and drink and he had lost several
kilogrammes. He had visual and olfactory hallucinations
concerning food, saying that things were moving in it
(worms, spiders) and that it smelt odd. He was unable to
eat and vomited on ingestion. On 1 February it was decided
to insert a feeding tube because the condition appeared to
be prolonged. He made many attempts to pull the tube out
and succeeded on a few occasions.
The medical condition with worsening depressive psychosis
and continuing need to forcefeed the patient by tube
because of further loss of weight led to the decision to
place the patient in compulsory care on 9 February. He had
declined physically and his life was in danger as a result
of his general mental derangement. ... The force-feeding
continued until 21 March.
Virtually every evening and night the patient shows
symptoms such as agitation and anxiety. He does not dare to
sleep, partly because of bad nightmares which wake him up
and make him afraid and partly because he thinks that
someone will harm him while he is asleep. He becomes more
secure if staff are by the bed. He nevertheless sleeps
normally for a few hours a night. He is very susceptible,
flinches when somebody bangs a door, keys jangle or when
staff or other patients run or suddenly come towards him.
With even more disturbance in the unit the patient is very
negatively affected: motor agitation, fear, anguish; he
wants to get out of the department and bangs his head
against the wall. He states that when the anguish overcomes
him he loses control over himself and his existence; he
does not know what he is doing and something inside him
says he is going to die. This is judged to be a condition
of prepsychosis-psychosis. Suicide attempts form part of
the psychotic symptom.
The psychotic symptoms are attenuated by the use of
psychopharmacological drugs. The psychotic outbreaks which
are still seen are a consequence of the pronounced fear,
and spring from both the outer stresses and the inner world
of paranoic ideas.
It should be noted that physically the patient has lost a
lot of weight and has generalised pronounced muscular
tension. He has a serious difficulty with aches in the
muscles and joints, though a certain improvement has been
observed thanks to the physiotherapy given.
Short description of suicide attempts:
4.1.95 Broke a bottle and cut himself on the left wrist
and the stomach, and tried to throttle himself
with a sheet ripped into strips. Later the same
day he crushed a glass in his hand and tried to
cut himself with it, despite close supervision
(suicide watch).
18.1.95 Tried to hang himself from a curtain rail using
torn bed linen (released by staff).
21.3.95 Pulled out the nasogastric feeding tube and
tried to throttle himself with it. Cut his
throat with a glass that he broke.
8.5.95 Cut his wrist with a broken bottle. Later tried
to hang himself from the curtain rail with
string.
29.5.95 Out for exercise with staff, he darted out into
the road and tried to throw himself in front of
a car, but was prevented by staff. Took a table
knife and tried to cut himself with it. ..."At
the respondent Government's request Dr. Sten
Lindgren on 13 June 1995 submitted a report
based on his evaluation of the existing medical
documentation of the applicant's physical and
mental health as well as on his own examination
of the applicant on 9 June 1995. Dr. Lindgren
is one of the physicians normally consulted by
the Swedish Immigration Board in cases of this
kind (förtroendeläkare). His report reads, inter
alia, as follows:
(translation from Swedish)
"...
The diary kept by the psychiatric clinic in Skellefteå: ...
The report by Nurse Anette Henrysson covers the period from
30 January to 18 February 1995. She states that MR [i.e.
the applicant] was not able to eat and that he drank less
and less. He is said to be more and more worried and
depressed and losing weight the whole time. He spends most
of the time lying in bed, has a good deal of pain, is stiff
in the joints and sometimes cannot manage to go to the
smoking room. Tube feeding began on 1 February 1995, split
up into four times a day. MR will take only half the
prescribed quantity of tube gruel, which results in big
conflicts and much persuasion on the part of the staff.
Because of stiff joints and muscles, thermotherapy has
begun and efforts are made to get the patient to walk as
much as possible. MR pulled the tube out twice during the
period. He is said to know that the European Commission [of
Human Rights] has taken up his case. A slight improvement
is noted as from 15 February 1995 when MR begins to sit in
the day-room more, is significantly more talkative than
before and a "spark" of hope is to be seen. He can talk of
other things than his death wish, joins in games and thinks
of writing to his relatives. He is also willing to try to
eat something liquid.
The report by Nurse Barry Lundmark covers the period
19 February to 3 April 1995. MR is stated to have been tube
fed from 1 February to 21 March 1995. He is said to have
pulled the tube out on 21 March and performed a number of
violent acts of a self-destructive nature. A new tube was
not inserted immediately because it was desired to see
whether MR would manage to take his own responsibility for
eating. For the first few days he was overcome by worry,
but then there was a certain improvement as regards both
his capacity for initiative and his mood. MR is stated to
still have great anxiety with visual and auditory
hallucinations and is said to be tense and agitated while
waiting for the decision [of the Commission] which is
expected soon.
The report by Nurse Anette Henrysson covers the period
3 March to 14 May 1995. MR is stated as having a better
appetite and finally getting bigger portions at his own
request. At the end of April he has some really good days
when he has no serious anxiety and is much happier and
alert. He takes part in the activities of the ward in
another fashion than before, tidying up, playing games and
being very keen to make contacts. But he still sleeps badly
at nights and is often woken up by nightmares. It is also
said that nearly every day MR has aches and pains,
especially in the shoulders and neck, and is receiving
physiotherapy. He spoke by telephone to his relatives in
Bangladesh and is said to miss them, especially his mother.
In the beginning of May he became more depressed and cried
more often. He does not believe the forthcoming decision
[of the Commission] will be favourable and starts having
fits of anxiety again, with thoughts of death as the only
way out. In the night of 8 May 1995 he cut himself with a
broken bottle and tried to hang himself from the curtain
rail.
The entry for 29 May 1995 by Senior Physician Mikael
Granström states that while out for a walk with staff, MR
ran into a roadway and tried to throw himself in front of
a car. When he came back into the ward he took a table
knife and tried to cut himself with it. The patient was
considered to be so mentally unstable that his freedom was
restricted and a suicide watch established.
The entry for 30 May 1995 by Senior Physician Mikael
Granström states that MR says he can promise not to do
anything to himself, so that the suicide watch was removed.
...
The report by Nurse Anette Henrysson covers the period
15 May to 4 June 1995. MR is stated to be becoming
increasingly agitated and anxious in the days preceding the
decision [of the Commission]. On one occasion he tries to
smash the window in his room because he is so desperate and
wants to get away from the ward. He learns on 25 May that
the case [before the Commission] is held over until 7 July
and after this the feelings of anxiety and hopelessness get
worse. His appetite declines greatly in a few days. On
29 May it is said that MR shows more motor agitation.
During the day he cuts one arm with a table knife and
breaks glass. MR begins to feel better afterwards and
attempts are made to liven him up with gymnastic games and
walks. He is not in such a black mood, but does not know
how he will manage to live until July and says he will take
his life straight away if he gets negative news.
...
In a hand-written report sheet it is stated that on the
evening of 1 June MR went along to the gym ... While there
he played volleyball and badminton and thought it was real
fun. He went for a walk on 2 June with the contact person
to go out and buy things and was talkative and somewhat
happier. MR again played games in the evening. According to
the entry for 3 June he slept more than usual the previous
night. He plays games and has quite a good day, but cannot
see how he will be able to wait a month for the decision
[of the Commission]. In the entry for 6 June it is stated
that MR slept between 12.30 am and 5 am. He woke up in a
state of acute anxiety and wanted to get out of the ward
and harm himself. ... In the evening MR is said to have
tried to break open the knife drawer in the kitchen. In the
entry for 9 June it is stated that MR had slept for about
three hours and was anxious about receiving a visit from
the consulting physician [Dr. Lindgren].
...
I personally examined MR on the care ward in Skellefteå ...
Before the consultation I observe that the curtain rails on
the ward consist of weak l-shaped sections on wall
brackets.
Account of the consultation: ... When I ask MR about how he
felt when he first came to Sweden, he says that it was fine
at first, but later it became awful and was now just as bad
as it was in Bangladesh. He is hunted by the police here
too. MR does not care any more about what is happening in
the refugee camp, but just wants to die. He asks for help
in taking his life. MR cannot say how he would go about
committing suicide. The only thing people can do for him
from now on is put flowers on his grave.
When I ask MR what he thinks of the food on the ward, he
says it's fine, but he has a poor appetite. After three
mouthfuls he can't eat any more.
Regarding sleep, MR says that he has nightmares and
difficulty in sleeping. When I ask him to describe what he
usually dreams about he says that it can be regarded as
fire but does not give any more detail despite further
questioning.
I ask MR if he has ever had the experience of hearing or
seeing something beyond the normal reality. He says that
he constantly hears noise in the ears as from a TV set
which is out of order. Concerning visual hallucinations, he
says that he can see blood, but does not describe any
context into which the blood fits.
I again take up the self-destructive episodes which have
been described during his period in care and ask MR whether
he thought he would die through these actions. He says
that he doesn't remember. I ask him to explain why he was
not injured or killed in the incident where he ran into the
roadway and tried to throw himself in front of a car. I
suggest three alternative explanations: according to the
first there was no car, according to the second the staff
rushed to prevent him, and according to the third he was
not capable of taking this step. MR says he can't
remember.
The treatment with mainly anti-psychotic and
anxiety-reducing drugs which has been used on the ward has,
according to MR, had a positive effect on his sleep.
I ask MR how he thinks his life will look in five years'
time if he is allowed to stay in Sweden. He says he has
neither dreams nor plans and repeats that his life is over
and that it doesn't matter any more what happens. He says
that he would be dead within five minutes if he got out of
the ward, but does not say how he would take his life.
MR confirms that he has spoken by telephone with his
parents in Bangladesh, but did not tell them how he was
living his situation in Sweden.
...
Somatic condition: MR is slightly built and weighs 49 kg
without clothes. ... His appearance is generally
appropriate to his age. MR appears thin but not emaciated.
Normal skin colour and moist mucous membranes. He is not
badly affected and does not need to stay in bed.
Heart and lungs were listened to and the belly palpated,
all OK. ... Pupil reaction, eye movements and ... reflexes
were examined, OK. Range of movement in hip and knee joints
and the elbows OK, but movement in the shoulders is
restricted and the patient has difficulty in raising his
left arm for the finger-nose test.
MR indicates that he has a scar on the forehead somewhat to
the right of the centre line and a couple of centimetres
above the edge of the scalp. The scar is bowed and about
3 cm long. It is said to have been caused by a blow with a
brick. He also points out a scar midway up the front of the
lower leg with irregular hyperpigmentation and a size of
2x1 cm. This is also said to have been caused by a brick.
Mental condition: During the consultation MR looks anxious
but is judged to be clear and well-oriented. He sometimes
does not answer and sometimes answers with a variable delay
to the questions asked, and speaks with a fairly weak
voice. The answers he gives are considered appropriate to
the context. Eye contact is limited. Sometimes he gives
the impression of being absent, but appears at the same
time to note what is happening in the room and to react to
noise from various sources. His attitude is interpreted as
sometimes seeking help and sometimes rejection. MR is
generally capable of sitting still during the consultation,
but stands up on a few occasions and stands for a while
before sitting down again of his own accord or after being
urged to do so. The anxiety level appears to be high and
MR looks tense. He appears well-controlled all the time.
The basic mood is understood as being somewhat down. In
moving about the ward the patient moves relatively slowly
and hesitantly, but this is not interpreted as any
manifestation of motor impairment. There is no
hallucinatory behaviour and the reported visual and
auditory experiences are not considered to have psychotic
significance. The sleeping difficulties mentioned are
described as are the reduced appetite and refusal to eat
and drink at times. The thought process is considered to
be normal and no bizarre features are noted in the thought
content. The patient's fear appears to be appropriate in
the present situation. MR describes his hopelessness and
reports death wishes and suicidal intentions, but does not
describe any concrete suicide plans. He appears to have a
good intellectual capacity.
... The present physical and mental state and the various
suicide attempts:
In the case file there is a medical/psychiatric report from
MR's previous period in Sweden and medical reports
subsequent to his return and the diary for the current stay
in the Skellefteå Psychiatric Clinic. In addition I have
conferred with Senior Physician Mikael Granström.
The available documents clearly indicate that MR has in the
past been physically and mentally healthy, with good
intellectual capacities. Earlier reports indicate that
before the expulsion of 30 January 1992 MR was in a
reactive state triggered by his situation, with anxiety and
depression as the main symptoms. There do not seem to have
been any psychotic element. Self-destructive behaviour is
stated to have occurred on various occasions. On one such
occasion MR hit himself on the head with a soft drink
bottle, causing bumps to appear. The "foster parents" did
not note any direct suicide attempt. During a period in
care in Sundsvall, it was not considered that there was any
suicide risk. While MR was in the Säter Hospital, when he
was informed of a negative decision [by the National
Immigration Board] he ripped his bed-cover and pulled in
round his neck and also broke a glass and scratched himself
with it before the staff could intervene. His suicidal
thoughts were considered to be conditional and there was
thought to be no risk of suicide in the ward. MR weighed
68 kg when he first came to Sweden. He refused to eat or
drink in the Säter Hospital and according to the report
weighed no more than about 40 kg when expelled. The report
on the actual expulsion states that he ate and drank and
remained calm on the homeward journey.
After MR's return to Sweden the medical report of
6 August 1994 written by Dr. Brune stated that as a result
of the circumstances there was a long-lasting crisis
situation leading to reactive depression with probably
hysterical elements. Instability and poor control over his
impulses would in the case of enforcement probably involve
a significant risk of self-destructive behaviour with a
danger of suicide.
In a medical report of 21 December 1994, Dr. Granström
considers that there is a schizophreniform psychosis. MR
is stated to have smashed a glass and cut himself on one
occasion. It is judged that he could be a danger to
himself and it is also expected that he would be capable of
acting destructively against other people in an enforcement
situation.
According to the diary, on 4 January 1995 he broke a bottle
and cut his left wrist and stomach. He also ripped up a
sheet and tried to throttle himself with it. In addition
he took a glass and crushed it in his hand to cut himself.
Following a negative decision, MR tried on 18 January 1995
to hang himself from a curtain rail using torn bedclothes
and also broke a glass and cut his arms.
In a medical report of 13 February 1995, Dr. Granström
considers that MR is suffering from reactive depression
bordering on psychotic values which manifests itself in the
refusal to eat.
According to the diary, in the night of 8 May 1995 MR cut
himself with a broken bottle and tried to hang himself from
the curtain rail. On 29 May when out for a walk with
staff, he ran into the roadway and tried to throw himself
under a car. Back on the ward he took a table knife and
tried to cut himself with it.
In a medical report of 9 June 1995, Dr. Granström judges MR's
condition to be prepsychosis-psychosis and the suicide attempts
to be part of the psychotic symptoms.Certain obvious damage in
connection with the reported self-destructiveness has never been
documented. Aggressiveness directed against the environment has
not been described either.
According to the diary, MR refused to eat or drink in the
ward and for this reason was fed by tube from 1 February to
21 March 1995. On this last date he pulled the tube out
and he is said to have performed several violent acts of a
self-destructive type, without giving any more detail. His
weight was 46 kg on 9 February 1995 and 49 kg when I
examined him on 9 June. In April MR was given bigger
portions at his own request and had some really good days
towards the end of that month.
A note from the medical clinic in February states that
there is scarcely any sign of critical malnutrition. A
laboratory note at the same time indicates normal values.
Dr. Granström considers in his various reports that MR's
condition has psychotic significance. Other material
however, including my own examination, points towards the
elements in MR's behaviour and experience which can lead to
such an interpretation resulting instead from an obvious
regression and from MR's cultural background.
Summarising, I consider that MR has a reactive mental
insufficiency condition with anxiety, depression and
sleeping difficulties stemming from prolonged uncertainty
and stressful living conditions. Instability and impulsive
acts with self-destructive manifestations cannot be
excluded in an expulsion situation. The risk of serious
harm or actual suicide is nevertheless considered to be
limited in view of what has happened in the past. The
present uncertainty can be seen as constituting a
destabilising factor. The family in the home country can
on the other hand be expected to have a calming effect.
Neither the physical nor the mental condition of MR at
present can be seen as constituting any obvious impediment
to enforcement. However, since he cannot be expected to
cooperate in an expulsion situation, the maintenance of
adequate safety therefore requires continuous supervision
from the time the applicant is informed of the expulsion as
well as an escort during the journey home. ...
Since the physical condition can deteriorate in a short
time if MR refuses to eat and drink, it is important that
the time between an eventual expulsion decision and its
enforcement should be kept to a minimum.
...
Conclusion: Impediments to enforcement on
medical/psychiatric ground cannot be considered to exist
provided that the measures outlined above are taken in an
expulsion situation. ..."
On 16 June 1995 the County Administrative Court consented to
continued compulsory care of the applicant for a further period of six
months.
Relevant domestic law
According to the 1989 Aliens Act (utlänningslag 1989:529), a
residence permit may be granted to an alien for humanitarian reasons
(chapter 2, section 4, subsection 1 (2)). A so-called new request for
a residence permit may only be granted if the request, lodged by an
alien who is to be refused entry or expelled by a decision which has
acquired legal force, is based on new circumstances and provided the
applicant is either entitled to asylum or there are weighty
humanitarian reasons for allowing him or her to stay in Sweden
(chapter 2, section 5, subsection 3).
As from 1 July 1994 a request pursuant to chapter 2, section 5,
shall be lodged with the Aliens Appeals Board. This Board consists of
a Chairman and a number of members appointed by the Government. The
Chairman and his or her deputies shall be lawyers (chapter 7, section
3). New requests are normally decided by three members.
When considering whether to refuse an alien entry or to issue an
expulsion order, the authorities must examine, pursuant to chapter 8,
sections 1-4, of the Aliens Act, whether the alien can be returned to
a particular country or whether there are other special obstacles to
the enforcement of such a decision. Any necessary instructions
regarding the enforcement order shall be given by the Government, the
Aliens Appeals Board or the National Immigration Board in their
decisions (chapter 4, section 12).
If the enforcement meets no obstacles under chapter 8, an alien
is to be expelled or returned to the country of origin or, if possible,
to the country from which he or she came to Sweden. If the decision
cannot be enforced in one of these manners or if special reasons exist,
the alien may be sent to another country (chapter 8, section 5).
If the enforcing authority finds that the enforcement cannot be
carried out or that further information is needed, it shall notify the
National Immigration Board accordingly. In such a case, the Board may
decide on the question of enforcement or take such other measures as
are necessary (chapter 8, section 13).
If an expulsion order or a decision refusing entry contains no
instructions regarding its enforcement or if it is evident that the
instructions cannot be complied with, the enforcing authority shall
decide how to carry out the enforcement, provided it does not proceed
in accordance with chapter 8, section 13 of the Aliens Act (chapter 7,
section 2 of the 1989 Aliens Ordinance (utlänningsförordning
1989:547)).
When considering a new request for a residence permit lodged by
an alien who is to be expelled according to a decision which has
acquired legal force, the National Immigration Board (and in certain
cases also the Government) may stay the enforcement of that decision.
For particular reasons the Board may also otherwise stay enforcement
(chapter 8, section 10). Similarly, the Aliens Appeals Board may decide
to stay the enforcement of a previous expulsion order.
The National Immigration Board or the Aliens Appeals Board may
refer a matter to the Government if, for instance, its outcome is of
particular importance to the future application of the Aliens Act or
if other particular circumstances warrant the Government's
consideration of the case (chapter 7, section 11).
According to the 1991 Act on Compulsory Mental Care (lag
1991:1128 om psykiatrisk tvångsvård), such care shall be terminated at
the request of the competent police authority whenever the person
placed in care is ordered to be expelled. This presupposes, however,
that the Chief Physician is of the opinion that the alien's condition
allows enforcement to take place and consequently grants the request
(section 29; Government Bill no. 1190/91: 58, appendix 1, p. 270). No
appeal lies against the Chief Physician's decision upon a request made
by the enforcing authority (section 33 of the 1991 Act).
COMPLAINTS
1. The applicant complains that, if returned to Bangladesh, he will
be subjected to treatment contrary to Article 3 of the Convention on
account of his political background in that country. He also complains
about the trauma which the enforcement of the expulsion order would
cause him in the light of his present mental and physical state. He
claims to have been previously subjected to degrading treatment by the
police in the receiving country. His return to Bangladesh would
therefore create a real risk that his psychosis would further
deteriorate and his suicidal tendencies further increase.
2. The applicant also complains about the absence of an effective
remedy within the meaning of Article 13 of the Convention for the
purpose of challenging the decisions of the Aliens Appeals Board upon
his further requests for a residence permit on humanitarian grounds.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 14 February 1995 and registered
on 15 February 1995.
On 14 February 1995 the President indicated to the respondent
Government that it would be desirable in the interest of the parties
and the proper conduct of the proceedings not to enforce the expulsion
order concerning the applicant until the Commission had examined the
application at the latest on 3 March 1995. For the same reasons, the
President also indicated to the applicant that he should commit no
further suicide attempts and no longer refuse to eat. Both indications
were given in pursuance of Rule 36 of the Commission's Rules of
Procedure. The President further communicated the application to the
Government, pursuant to Rules 34 para. 3 and 48 para. 2 (b) of the
Rules of Procedure.
On 2 March 1995 the Commission prolonged the President's
indications under Rule 36 in respect of both parties until
13 April 1995.
The Government's written observations were submitted on
24 March 1995 after an extension of the time-limit fixed for that
purpose.
On 12 April 1995 the Commission prolonged its indications under
Rule 36 in respect of both parties until 26 May 1995.
The applicant's written observations in reply were submitted on
28 April 1995, also after an extension of the time-limit. On 25 May
1995 the Commission invited the parties to submit supplementary
observations in writing. It furthermore prolonged its indications under
Rule 36 in respect of both parties until 7 July 1995.
On 26 May 1995 the Commission granted the applicant legal aid.
Supplementary observations were submitted by the applicant on
9 and 30 June 1995 and by the respondent Government on 16 June and
4 July 1995.
On 6 July 1995 the Commission prolonged its indications under
Rule 36 in respect of both parties until 15 September 1995.
THE LAW
1. The applicant complains that, if returned to Bangladesh, he will
be subjected to treatment contrary to Article 3 (Art. 3) of the
Convention on account of his political background in that country. He
also complains about the trauma which the enforcement of the expulsion
order would cause him in the light of his present mental and physical
state.
Article 3 (Art. 3) of the Convention reads as follows:
"No one shall be subjected to torture or to inhuman or
degrading treatment or punishment."
The Government consider the application manifestly ill-founded.
The applicant's fear that he would be persecuted on his return to
Bangladesh, having regard to his alleged political background there,
is exaggerated. The Government invoke the political changes in the
receiving country and refer to inconsistencies in the applicant's
account of his activities in that field. For instance, when returning
to Sweden the applicant failed to mention to the immigration
authorities that he had been tortured in Bangladesh. It is therefore
argued that substantial grounds have not been shown for believing that
he would, on account of his background in Bangladesh, face a real risk
of treatment contrary to Article 3 (Art. 3) if returned to that
country.
The Government furthermore consider that the applicant can be
returned to Bangladesh despite his current state of health. The
enforcement of the expulsion order would thus not involve such a trauma
on his part that this would amount to a violation of Article 3
(Art. 3). In the Government's view this provision must be applied with
great caution in the present field. They submit that the applicant's
present behaviour is similar to that observed prior to the enforcement
of the expulsion order in January 1992. Anticipating an enforcement,
the applicant has, on both occasions, voluntarily sought hospital
treatment and, while in treatment, stopped eating. It can therefore be
assumed that he is acting in a manner likely to impair his physical
health so as to prevent or postpone the enforcement of the expulsion
order.
The Government refer, in particular, to Dr. Lindgren's report of
13 June 1995, according to which the applicant's state of health is
such that no impediments to his return to Bangladesh can be considered
to exist provided that appropriate measures are taken in connection
with the actual enforcement. The Government underline that, according
to Dr. Lindgren, there are no documented reports that the applicant
has injured himself through his suicidal attempts. For instance, the
curtain rods which he has used in order to "hang" himself were weak.
Moreover, according to Dr. Lindgren, the risk of serious injuries and
an accomplished suicide would be limited if an enforcement of the
expulsion were to be carried out.
The Government furthermore submit that the local police authority
must, when preparing the enforcement, consider the applicant's state
of health and, if necessary, notify the National Immigration Board of
any impediment to the enforcement. So far the enforcement preparations
have not begun. Should such measures be taken, the applicant's physical
and mental state at that time will be decisive. Under domestic law
compulsory care of an alien ordered to be expelled can be terminated
at the request of the competent police authority only on condition that
the Chief Physician is of the opinion that the alien's condition allows
enforcement to take place and consequently grants the request. In
practice the Chief Physician therefore has the final say in the matter.
The applicant maintains that his complaint is well-founded.
Whilst it is true that the human rights situation in Bangladesh has
improved somewhat, reports continue to indicate the existence of a
pattern of physical and mental torture applied by the police in
connection with arrests and interrogations, in particular of prisoners
of conscience and political prisoners. Reference is made to the medical
evidence confirming the existence of scars on the applicant's body. It
remains highly probable that he could again be subjected to torture and
degrading treatment by the police on his return to the receiving
country. Even if in a trial he might manage to clear himself from the
false accusations against him, there remains a risk that ill-treatment
might occur during his detention on remand.
The applicant furthermore contends that his return to Bangladesh
despite his current physical and mental health would also violate
Article 3 (Art. 3). According to the medical evidence adduced, he is
not only physically weak after his hunger-strike but is also suffering
from a schizophrenic psychosis, for which reason he has been placed in
compulsory care.
In his initial submissions to the Commission the applicant
emphasised that, although the medical evidence submitted by
psychiatrists described rather complicated symptoms, the material had
nevertheless been assessed merely by lawyers without any consultation
with, e.g., one of the experts consulted by the immigration authorities
in cases of this kind. An examination in the absence of such a
consultation left room for arbitrary considerations.
After having been notified of Dr. Lindgren's report the applicant
refers, in particular, to the report drawn up on 7 June 1995 by the
doctor responsible for his care, Dr. Granström, and Dr. Olofsson. He
furthermore maintains that the police may enforce the expulsion order
even while he remains in compulsory care. This is evident from the fact
that the Aliens Appeals Board has not, following his placement in such
care, ordered stay of enforcement. Nor has it referred his request for
a residence permit on humanitarian grounds to the Government in
accordance with chapter 7, section 11 of the Aliens Act for the purpose
of determining whether a person who is in compulsory care can be
considered "transportable" within the meaning of the Aliens Act.
(a) The Commission has first examined whether the applicant's return
to Bangladesh would, if enforced, violate Article 3 (Art. 3) of the
Convention on account of his alleged political background in that
country and the surrounding circumstances.
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).
The Commission notes the Swedish authorities' doubts as to
whether the applicant would, on account of his background in
Bangladesh, face a real risk of treatment contrary to Article 3
(Art. 3), if returned to that country. It also observes that chapter
8 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.
On the basis of all the material before it, the Commission does
not find it established that there are substantial grounds for
believing that the applicant would, on account of his alleged
background in Bangladesh, be exposed to a "real risk" of being
subjected to treatment contrary to Article 3 (Art. 3) in that country.
It follows that this aspect of the complaint must be rejected as
being manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
(b) The Commission has next examined whether, considering the
applicant's state of health, an enforcement at present of the expulsion
order would in itself involve such a trauma to him that Article 3
(Art. 3) would be violated (cf. Eur. Court H.R., Cruz Varas and others
judgment of 20 March 1991, Series A no. 201, p. 31, paras. 83-84). It
accepts that the return of a person to a country where he has allegedly
already been ill-treated may involve serious hardship for the person
concerned (cf., mutatis mutandis, Cruz Varas and others v. Sweden,
Comm. Report 7.6.90, Series A no. 201, para. 90, Series A no. 201, p.
46).
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 (the above-mentioned Cruz Varas and
others judgment, loc.cit.).
In the present case a substantial amount of medical evidence has
been adduced by the parties. The Commission has paid particular
attention to the views of Dr. Granström, the physician in charge of the
applicant's everyday care. It has furthermore noted the report of
13 June 1995 submitted by Dr. Lindgren after an evaluation of all
available documentation on the development of the applicant's state of
health and following his own examination of the applicant. The report
concludes that enforcement should take place only on condition that the
applicant is continuously supervised as from the commencement of the
enforcement preparations up to his actual return to Bangladesh and
provided that this period remains very short. The Commission assumes
that no enforcement will take place without these conditions being met.
Finally, it appears to the Commission that, as long as the
applicant remains in compulsory psychiatric care, enforcement can under
no circumstances take place without permission of the Chief Physician
responsible for his care. Given that the enforcing police authority
must request this Physician to terminate the care, he or she still
retains a further opportunity of assessing, in a decisive manner, the
applicant's state of health at the time of the planned enforcement.
In the above circumstances the Commission does not find it
established that the applicant's possible return to Bangladesh would
amount to a violation of Article 3 (Art. 3) on account of his current
state of health.
It follows that this aspect of the 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 an effective
remedy within the meaning of Article 13 (Art. 13) of the Convention for
the purpose of challenging the decisions of the Aliens Appeals Board
upon his new requests for a residence permit on humanitarian grounds.
Article 13 (Art. 13) of the Convention reads as follows:
"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."
Reiterating their view that the applicant's complaint under
Article 3 (Art. 3) of the Convention is manifestly ill-founded, the
Government argue that his complaint under Article 13 (Art. 13) is
incompatible ratione materiae with the provisions of the Convention or,
alternatively, manifestly ill-founded. It is true that no appeal lay
against the decisions of the Aliens Appeals Board on the applicant's
new requests for a residence permit. The Government recall, however,
that over the years the question whether he should be permitted to
reside in Sweden has been examined on many occasions and by three
instances. The decisions rendered between November 1993 and February
1995 should be seen as a whole, since they all pertained to the
question whether he should be allowed to remain in Sweden after his
return in December 1992. In the last four decisions the Aliens Appeals
Board referred to its decision of 25 March 1994 which in the present
circumstances remains the final decision constituting the basis for
possible enforcement. The Government finally point out that pending
enforcement the applicant may still lodge an unlimited number of new
requests with the Aliens Appeals Board for the purpose of obtaining a
residence permit. It is very likely that such requests would not be
examined by the Board in a constantly identical composition. For
instance, the applicant's four most recent requests lodged pursuant to
chapter 2, section 5 of the Aliens Act involved ten decision-makers.
However, only one of those participated in more than one of the Board's
four decisions. The Government finally recall that the activities of
the National Immigration Board and the Aliens Appeals Board are subject
to the supervision of the Chancellor of Justice and the Parliamentary
Ombudsman.
The applicant contends that his four most recent new requests for
a residence permit on humanitarian grounds could only be examined by
the Aliens Appeals Board. Neither the Ombudsman of Justice nor the
Chancellor of Justice has the power to change the Board's decisions.
The right to an effective remedy within the meaning of Article 13
(Art. 13) must imply a right to obtain a review by a superior
authority.
The Commission recalls that, according to the European Court of
Human Rights, an applicant, who is found to have no "arguable claim"
that another Convention provision has been violated, is not entitled
to a remedy under Article 13 (Art. 13) (see, e.g., Eur. Court H.R.,
Powell and Rayner judgment of 21 February 1990, Series A no. 172, pp.
14-15, paras. 31-33 and p. 20, para. 46).
The Commission furthermore recalls that the concept of an
arguable claim falls to be determined having regard to the particular
facts of the case and the nature of the legal issues raised (cf. Eur
Court H.R., Plattform "Ärzte für das Leben" judgment of 21 June 1988,
Series A no. 139, p. 11, para. 27; No. 12474/86, Dec. 11.10.88, D.R.
58 p. 94).
In the circumstances of the present case the Commission need not
determine whether, in spite of its conclusion concerning the Article
3 (Art. 3) complaint, the applicant has an "arguable claim" of a breach
of that provision which would entitle him to a remedy under Article 13
(Art. 13). Even if the applicant were to have such an "arguable claim"
the complaint is inadmissible for the following reasons.
The Commission recalls that the concept of an "effective" remedy
within the meaning of Article 13 (Art. 13) implies that the remedy is
an accessible one and that the authority at issue is competent to
examine the merits of a complaint (cf., e.g., No. 11468/85, Dec.
15.10.86, D.R. 50 p. 199).
The Commission accepts that in the present case the decision
rendered by the Aliens Appeals Board on 25 March 1994 in the ordinary
proceedings concerning the applicant's entitlement to asylum or a
residence permit in Sweden remains the basis for possible enforcement.
It notes that, by subsequently requesting the Aliens Appeals Board to
grant him a residence permit on humanitarian grounds on account of his
state of health, he has had ample opportunity to oppose enforcement of
the expulsion order in these new circumstances. The Commission cannot
find that the Aliens Appeals Board has not properly taken account of
the medical evidence adduced by the applicant in support of his further
requests pursuant to chapter 2, section 5 of the Aliens Act. It
furthermore notes that the possibility of lodging further requests
pursuant to that provision remains open to the applicant up to the
actual enforcement moment.
In these circumstances the Commission finds no appearance of a
violation of Article 13 (Art. 13), even assuming that the applicant
could be considered to have an "arguable claim" that his rights under
Article 3 (Art. 3) might be violated as a result of his possible return
to Bangladesh.
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.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (S. TRECHSEL)
Full & Egal Universal Law Academy