Information Note on the Court’s case-law No.
March 1991
Cruz Varas and Others v. Sweden - 15576/89
Judgment 20.3.1991
Article 3
Expulsion
Decision to deport Chilean nationals to Chile: no violation
Article 8
Article 8-1
Respect for family life
Decision to deport Chilean nationals (husband, wife and son) to Chile, implemented as regards the husband: no violation
Article 34
Hinder the exercise of the right of petition
Victim
Non-compliance with interim measures: no violation
[This summary is extracted from the Court’s official reports (Series A or Reports of Judgments and Decisions). Its formatting and structure may therefore differ from the Case-Law Information Note summaries.]
I.ARTICLE 3 OF THE CONVENTION
A.Applicability of Article 3 in expulsion cases
Decision by Contracting State to extradite or expel a fugitive may give rise to an issue under Article 3 where substantial grounds have been shown for believing that he faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment.
B.Application to particular circumstances
1.The determination of the facts
The establishment and verification of the facts is primarily a matter for the Commission. It is only in exceptional circumstances that the Court will use its powers in this regard but it remains free to make its own appreciation in the light of all the material before it.
The risk must be assessed primarily with reference to those facts which were known or ought to have been known to the State at the time of the expulsion although subsequent information may be of value in confirming or refuting the State's assessment.
2.Assessment in the present case
Substantial grounds have not been shown for believing that first applicant's expulsion would expose him to a real risk of being subjected to inhuman or degrading treatment on his return to Chile. His silence, for eighteen months after his first interrogation by the Swedish Police Authority, as to his alleged clandestine activities and torture by the Chilean police, continuous changes in his story and lack of substantiation cast doubt on his credibility. Other factors taken into account were the improvement in the political situation, the voluntary return of refugees and the thorough examination of his case by the Swedish authorities.
3.Whether the first applicant's expulsion was in breach of Article 3 because of trauma involved
Expulsion did not exceed the threshold set by Article 3 since no substantial basis had been shown for his fears.
4.Possible expulsion of the third applicant
Applicants do not appear to have maintained complaint. In any event the facts do not reveal a breach.
Conclusion: no breach (eighteen votes to one).
II.ARTICLE 8 OF THE CONVENTION
The second and third applicants went into hiding to evade enforcement of the expulsion order. The evidence, including the finding concerning the Article 3 complaint, does not show that there were obstacles to establishing family life in their home country. In these circumstances responsibility for the resulting separation of the family cannot be imputed to Sweden. Accordingly, no "lack of respect" for the applicants' family life.
Conclusion: no breach (unanimous).
III.ARTICLE 25 § 1 OF THE CONVENTION
A.General considerations
Unlike other international instruments the Convention does not contain a specific provision empowering its institutions to order interim measures. The travaux préparatoires are silent as to any discussion which may have taken place on this question. The Consultative Assembly called on the Committee of Ministers to draft an additional protocol (Recommendation 623 (1971)) but the Committee decided that this was not expedient. Recommendations were made by the Assembly in 1977 and the Committee of Ministers in 1980 calling on member States to suspend extradition or expulsion to non-Contracting States where Article 3 complaints were pending before the Commission or Court.
B.Can power to order interim measures be derived from Convention or other sources?
In absence of Convention provision a Rule 36 indication cannot give rise to a binding obligation. This is reflected in the wording of both Rule 36 and the indications in the present case.
Article 25 § 1 imposes an obligation not to interfere with the right of the individual effectively to present and pursue his complaint with the Commission. Although such a right is of a procedural nature, it must be open to individuals to complain of alleged infringements of it. However, given that the Convention contains no specific interim measures provision it would strain the language of Article 25 to infer an obligation to comply with a Rule 36 indication. Conclusion not altered by considering Article 25 § 1 in conjunction with Rule 36 or Articles 1 and 19 of the Convention.
Practice of States reveals almost total compliance with Rule 36 indications. Subsequent practice could be taken as establishing the agreement of States regarding the interpretation of a Convention provision but not as creating new rights and obligations which were not included in the Convention at outset. Rather, the practice is based on good faith co-operation with the Commission.
Furthermore, assistance cannot be derived from general principles of international law where no uniform legal rule exists.
The power to order binding interim measures cannot therefore be inferred from Article 25 § 1 or from other sources. Where State decides not to comply with Rule 36 indication it knowingly assumes the risk of being found in breach of Article 3. Any such finding would be aggravated by the failure to comply.
C.Whether expulsion actually hindered the effective exercise of the right of petition
Although compliance with the indication would have facilitated the presentation of the case before the Commission, there was no evidence of hindrance to any significant degree.
Conclusion: no breach (ten votes to nine).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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