AS TO THE ADMISSIBILITY OF
Application No. 21056/92
by Mats CASSEGÅRD
against Sweden
The European Commission of Human Rights sitting in private on
29 November 1993, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
G.B. REFFI
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
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 15 September 1992
by Mats CASSEGÅRD against Sweden and registered on 11 December 1992
under file No. 21056/92;
Having regard to the observations submitted by the respondent
Government on 4 June and 14 September 1993 and the observations in
reply submitted by the applicant on 19 August 1993;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Swedish citizen, born in 1965 and resident at
Nässjö, Sweden. He is at present detained at the Mariefred Prison
(Kriminalvårdsanstalten Mariefred). He is represented by Mr. Lars G.
Mattson and Mr. Niclas Forsberg, lawyers in Stockholm.
The facts of the present case, as submitted by the parties, may
be summarised as follows.
Particular circumstances of the case
On 10 May 1991 the applicant was convicted by the District Court
(tingsrätten) of Eksjö of a number of offences, including arson and
aggravated theft, and was sentenced to four years and six months'
imprisonment.
The judgment was upheld by the Göta Court of Appeal (hovrätten)
on 3 July 1991. Leave to appeal was refused by the Supreme Court
(Högsta domstolen) on 23 August 1991.
The applicant had been detained on remand as of 19 March 1991.
After the conviction and sentence had acquired legal force he was
placed in the Mariefred Prison.
In September 1991 the applicant was granted a guarded short-term
leave to visit his mother in the hospital at Nässjö. The mother
suffered from cancer. The applicant spent about four hours with his
mother.
In November 1991 the applicant again requested leave to visit his
mother. This request was granted on 27 November 1991 on the terms that
the applicant would be transferred provisionally from the Mariefred
Prison to the Detention Centre (häktet) at Värnamo, from where he would
be able to have guarded short-term leave to visit his mother in the
hospital. The distance between Värnamo and Nässjö is less than 100
kilometres.
On the same day, however, the applicant withdrew his request,
since he could not accept being guarded by staff of the Detention
Centre.
Subsequently, however, the applicant was granted short-term leave
with guards from the Mariefred Prison. He then visited his mother on
2 December 1991, spending about three hours with her. The distance
between the Mariefred Prison and the hospital at Nässjö is about 300
kilometres.
On 23 December 1991 the applicant requested that he be granted
leave to visit his mother on 13 January 1992 on the same terms as those
on which his second leave had been granted. This request was refused
by the Prison Governor on 9 January 1992.
On 14 January 1992 the applicant appealed against this decision
to the National Prisons and Probations Administration (Kriminal-
vårdsstyrelsen), which on 21 January 1992 rejected the appeal. In its
decision the Administration stated as follows:
(translation)
"The Administration has been informed by the Prison about
the following. [The applicant] was granted leave in
December 1991 to visit his mother. The Prison is regularly
in touch with the doctor who is responsible for the
treatment of [the applicant's] mother. According to this
doctor the mother's state of health is stable. Naturally
[the applicant] will be granted further leave in case his
mother's state of health should deteriorate.
In the present circumstances there is no special reason to
grant [the applicant] leave."
The applicant was orally informed of the decision on 21 January
1992.
The time when the applicant appealed against this decision is in
dispute between the parties. The applicant submits that he placed the
appeal in the letter-box of the prison on 21 January 1992, while the
Government contest that this was done before 22 January 1992 and state
that the applicant might in fact have delayed the transmission of the
appeal until some time later. The appeal was dated 22 January 1992.
According to Swedish procedural law the applicant should have
sent his appeal to the National Prisons and Probations Administration,
whose task it was to examine whether the appeal had been lodged within
the applicable time-limit. However, the applicant sent the appeal to
the Administrative Court of Appeal (kammarrätten) of Jönköping.
On 24 January 1992 the applicant's mother was discharged from the
hospital and on 2 February 1992 she was re-admitted.
On 3 February 1992 the Administrative Court of Appeal received
the appeal and sent it to the National Prisons and Probations
Administration for an examination of whether it had been lodged in
time.
On 4 February 1992 the National Prisons and Probations
Administration received the appeal. On the same day it attempted to
obtain information concerning the applicant's mother's state of health.
She died, however, on 5 February 1992 before such information could be
procured.
On 13 February 1992 the applicant, having been granted leave,
attended his mother's funeral.
On 2 March 1992 the applicant requested that his appeal should
be examined. On 6 March 1992 the National Prisons and Probations
Administration re-examined the matter and decided that no further
action was called for.
On 15 April 1992 the National Prisons and Probations
Administration, after the applicant had again requested an examination
of his appeal, forwarded the case-file to the Administrative Court of
Appeal. On 24 April 1992 the Court decided that, in view of the
applicant's mother's death, his application for leave no longer had any
purpose and that his appeal therefore did not require any decision by
the Court.
On 11 May 1992 the applicant lodged a further appeal with the
Supreme Administrative Court (Regeringsrätten). On 7 July 1992 the
Supreme Administrative Court decided not to grant leave to appeal.
The applicant also complained to the Parliamentary Ombudsmen
(Riksdagens justitieombudsmän) about the manner in which the
authorities had dealt with his request for leave, but on 4 August 1992
the competent Ombudsman decided not to take any action.
The inmates of the Mariefred Prison can leave their outgoing
correspondence in a letter-box which is emptied every morning. The mail
leaves the prison every weekday at around 4.00 p.m. The mail is not
registered by prison staff.
Relevant domestic law
Provisions concerning the treatment of prisoners are found in the
1974 Act on Correctional Treatment in Institutions (lag 1974:203 om
kriminalvård i anstalt) and the 1974 Decree containing Certain
Regulations regarding the Implementation of the Act on Correctional
Treatment in Institutions (förordning 1974:248 om kriminalvård i
anstalt). The National Prisons and Probation Administration has issued
more detailed provisions (anstaltsföreskrifter) in accordance with the
Decree. General advice (allmänna råd) concerning leave has also been
issued.
Section 9 of the 1974 Act provides that prisoners shall be
treated with respect for their human dignity and with understanding for
the special difficulties connected with imprisonment.
A prisoner may be granted short-term leave in order to facilitate
his or her adjustment in the community, provided that there is no
manifest danger of continued criminal activity or considerable danger
that the leave be misused. Short-term leave may also be granted for
other special reasons (Section 32, subsections 1 and 2).
Short-term leave may be made subject to such conditions as
considered necessary, for instance concerning the place where the leave
shall be spent. If close supervision is called for, it may be
stipulated that the prisoner shall be placed under surveillance during
the leave (Section 32, subsection 4).
According to Government Bill 1978/79:62 (pp. 20 et seq.),
short-term leave for special reasons should not be granted unless it
fulfils an essential purpose which cannot be achieved in any other way.
Under Section 12 of the 1974 Decree a prisoner who has been
sentenced to a minimum of two years' imprisonment shall not, unless
there are special reasons, be granted short-term leave in accordance
with Section 32 para. 1 of the Act prior to having served six months
of his imprisonment, including any time spent in detention on remand.
According to Section 106 of the provisions issued by the National
Prisons and Probations Administration, short-term leave may be granted
in order to enable an inmate to take care of a matter outside the
institution, if the matter is of essential importance to him and cannot
be taken care of during regular leave or in any other way. Such
special leave may be granted to enable an inmate to visit someone close
to him who is seriously ill or to attend the funeral of such a person.
Special leave shall not be permitted for any longer time than necessary
in order to fulfil its purpose. There are no provisions or established
practice concerning how often a prison inmate should be allowed such
special leave.
COMPLAINT
The applicant complains of a violation of Article 3 of the
Convention in that he was not allowed to visit his mother before she
died on 5 February 1992. He refers, in particular, to the European
Prison Rules, a Recommendation adopted by the Committee of Ministers
of the Council of Europe in 1987. Under para. 49, subpara. 2, of these
Rules a prisoner shall be informed at once of the serious illness of
a near relative. In such cases and "whenever circumstances allow" the
prisoner should be authorised to visit the relative either under escort
or alone.
The applicant further refers to notes by hospital staff showing
that, before refusing the applicant's leave request on 9 January 1992,
the Prison Governor did not verify the state of health of the
applicant's mother. This was only done on 10 January 1992. Although
at that time the mother's condition had been stable, she continued to
be seriously ill.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 15 September 1992 and
registered on 11 December 1992.
On 29 March 1993 the Commission decided to bring the application
to the notice of the respondent Government and to invite them to submit
written observations on its admissibility and merits.
The Government submitted observations on admissibility and merits
on 4 June and 14 September 1993. The applicant's observations in reply
were submitted on 19 August 1993.
THE LAW
The applicant complains of a violation of Article 3 (Art. 3) of
the Convention in that his third request for short-term leave in order
to visit his dying mother was refused.
Article 3 (Art. 3) of the Convention provides as follows:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
The Government submit that, in so far as the applicant alleges
a violation of Article 3 (Art. 3), his application should be considered
incompatible ratione materiae with the provisions of the Convention.
The Government further address the question whether the
applicant's complaint may be considered under 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."
Should the application be examined under Article 8 (Art. 8), the
Government recall that the applicant is an adult who presumably left
his mother's home years ago. It could therefore be questioned whether
his relationship with his mother at the relevant time was such as to
fall within the field of "family life" protected by Article 8 para. 1
(Art. 8-1). Considering that the detention of the applicant is as such
compatible with Article 5 para. 1 (a) (Art. 5-1-a) of the Convention,
it could also be questioned whether the applicant had any right under
the Convention to visit his mother.
The Government contend that, in any case, the application is
manifestly ill-founded. The interference with the applicant's possible
right under Article 8 (Art. 8) was in accordance with the law. His
possibilities to maintain and develop his relationship with his mother
by means of visiting her while she was in hospital were necessarily
affected by his prison sentence, which pursued the interests of public
safety and was aimed at the prevention of disorder or crime, as well
as the protection of the rights of others. Since the refusal of the
applicant's request for a third leave in fact served to enforce his
prison sentence, the same legitimate aims justified that refusal.
The Government argue that the measure in question was
proportionate to the aims pursued. They recall that, although at the
time of his third leave request he had only served some ten months of
his prison term, the applicant had already been allowed to visit his
mother twice. It is recalled that, as he had been dissatisfied with the
arrangements of the first visit, the applicant was granted
exceptionally favourable treatment during his second leave. Moreover,
between 9 January and the death of the applicant's mother the prison
authorities did not receive any information from the hospital staff,
the applicant himself or any of his relatives about his mother's re-
admission or critical state of health. At least four staff members of
the Mariefred Prison were in contact with the hospital during her
hospitalisation. On 10 January 1992 one of the doctors had informed the
Prison Governor that the applicant's mother's health had not
deteriorated in any acute way. Had the prison received information to
the contrary, short-term leave could have been granted immediately.
The Government furthermore question the date of the applicant's
appeal to the Administrative Court of Appeal. They point out that,
although the appeal was allegedly lodged on 21 January 1992, it was
dated 22 January 1992.
In the above circumstances the Government contend that the
authorities did not transgress the margin of appreciation allowed by
Article 8 para. 2 (Art. 8-2) of the Convention.
The applicant submits that there did exist family life between
him and his mother despite the fact that they lived apart. The National
Prisons and Probations Administration had, on 21 January 1992,
considered that the applicant was to be granted further leave, should
his mother's condition deteriorate. The Administration thereby
considered whether such leave could be harmful to other persons and
society and answered this question in the negative. The fact that the
applicant was not dangerous is supported by the fact that he had
already been granted leave on two occasions, the second leave having
been granted on exceptional terms.
The applicant recalls that, according to the decision of 21
January 1992, the Mariefred Prison was to be in regular contact with
the doctor in charge of the care of the applicant's mother. It
appears, however, from the hospital notes that there was no such
regular contact.
The applicant states that he appealed against the decision of 21
January 1992 on the same day by placing his letter in the relevant box
for this purpose.
The applicant finally contends that he did inform the prison
administration of his mother's re-admission to hospital. No further
information regarding her state of health was, however, obtained by the
prison.
The Commission does not consider that the present case discloses
any appearance of a violation of Article 3 (Art. 3) of the Convention.
The matter of which complaint is made does not amount to the kind of
severe ill-treatment proscribed by this provision.
However, the Commission is of the opinion that the applicant's
right to respect for his family life is at issue and that, therefore,
Article 8 (Art. 8) of the Convention is applicable to the applicant's
complaint about the refusal of short-term leave to make a third visit
to his mother in hospital.
The Commission recalls that the notion of 'respect' enshrined in
Article 8 (Art. 8) is not clear-cut. This is the case especially where
the positive obligations implicit in that concept are concerned. Its
requirements will vary considerably from case to case according to the
practices followed and the situations obtaining in the Contracting
States. In determinating whether or not such an obligation exists,
regard must be had to the fair balance that has to be struck between
the general interest and the interests of the individual as well as to
the margin of appreciation afforded to the Contracting States (Eur.
Court H.R., B. v. France judgment of 25 March 1992, Series A no. 232-C,
pp. 47 et seq., paras. 44 et seq.).
In the present case the Commission must strike a balance between
the general interest in ensuring execution of punishment and the
applicant's individual interest in visiting a parent in a critical
state of health.
The Commission first observes that the applicant was serving a
prison sentence of four years and six months for, inter alia, arson and
aggravated theft. Nevertheless, he had been granted leave to see his
mother in hospital in September and December 1991, the last-mentioned
leave on exceptionally favourable terms in that he had been guarded by
staff of the Mariefred Prison, having refused the offer to be
transferred to the Detention Centre at Värnamo.
The Commission next observes that in his third leave request the
applicant demanded that he again be guarded by staff from the Mariefred
Prison despite the considerable distance between that prison and the
hospital where his mother was staying. This would undoubtedly have put
an additional burden on the prison staff and there might well have been
considerable practical problems connected with such arrangements.
The Commission further notes that the Prison Governor, when
considering the applicant's third request on 9 January 1992, did not
have at his disposal any information regarding a deterioration of the
applicant's mother's state of health. Nor was any such information
available to the National Prisons and Probations Administration, when
it decided on the applicant's appeal on 21 January 1992. It is
explicitly stated in the decision of that authority that, according to
information received from the doctor in charge, the mother's state of
health was stable and that, should it deteriorate, the applicant would
be granted leave. The Commission notes in this regard that the mother
was in fact discharged from the hospital on 24 January 1992 and that
the prison authorities were apparently not informed of her subsequent
re-admission on 2 February 1992.
Regarding the fact that the applicant's appeal against the
decision of 21 January 1992 to refuse further leave could only be
examined after the death of his mother, it has not been established why
his appeal dated 22 January 1992 did not arrive at the Administrative
Court of Appeal until 3 February 1992. There is no indication, however,
that the prison authorities delayed its transmission.
Having regard to these various elements, the Commission finds
that a fair balance was struck between the conflicting interests at
stake in the present case. It considers that the competent authorities
of the respondent State did not transgress their margin of appreciation
in refusing the applicant's third leave request. The Commission
concludes that there has been no lack of respect for the applicant's
family life, and that, therefore, the application discloses no
appearance of a violation of Article 8 (Art. 8) of the Convention.
It follows that the application must 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, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy