AS TO THE ADMISSIBILITY OF
Application No. 28285/95
by Ahmed NIKOVIC
against Sweden
The European Commission of Human Rights sitting in private on
7 December 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
K. HERNDL
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 16 August 1995 by
Ahmed Nikovic against Sweden and registered on 22 August 1995 under
file No. 28285/95;
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 11 October 1995 and the observations in reply submitted
by the applicant on 12 November 1995;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, a student born in 1970, is a citizen of
Yugoslavia. Before the Commission he is represented by his lawyer,
Mr. Per-Erik Nilsson, Djursholm.
The facts of the case, as submitted by the parties, may be
summarised as follows.
The applicant arrived in Sweden on 25 November 1991 and applied
for asylum. He stated that he was an ethnic Albanian resident in
Montenegro. He had served in the Yugoslavian army for almost thirteen
months when, on 16 November, he had deserted and left for Sweden via
Denmark. During his military service, he had allegedly been harassed
due to his ethnic origin by members of his military unit. He had once
been held for a few days as a prisoner of war by Slovenian troops.
After his escape from Yugoslavia, members of his family had allegedly
received threats of punishment if they did not state his whereabouts.
The applicant claimed that, if returned, he would be severely punished
for desertion.
On 9 June 1993 the National Immigration Board (Statens
invandrarverk) rejected the application. It further ordered the
applicant's expulsion. The Board stated that deserters were punished
only in exceptional cases and that, in any case, the severity of a
possible sanction would not be such as to constitute a ground for
granting the applicant asylum. It further found that the applicant
would not risk being sent to a seat of war.
The applicant appealed to the Aliens Appeals Board (Utlännings-
nämnden). In addition to the information previously submitted, he
claimed that, upon return, he could be forced to join Serbian para-
military groups, in which he risked harassment due to his ethnic
origin. He further stated that he was living with a Swedish woman since
June 1992.
On 12 October 1993 the Appeals Board rejected the appeal. It
agreed with the reasoning of the National Immigration Board and further
considered that the applicant's relationship with the Swedish woman was
not sufficient to grant the applicant a residence permit.
Thereafter, the applicant went into hiding. He later lodged a new
application with the Appeals Board. He submitted a medical certificate
issued on 15 February 1995 by Dr. Kim Skoglund, a specialist in
psychiatry, who had met the applicant on four occasions between
October 1994 and February 1995. Dr. Skoglund gave the following
opinion:
"He shows all the symptoms of a post-traumatic stress
syndrome. A further expulsion decision could involve
considerable risks to his mental and physical health. The
suicide risk is not only great but also realistic and
imminent if he is expelled. He is under mental stress which
he can no longer stand and which could be compared to
torture. It may leave a permanent mark on his mental health
and may develop into mental illness."
The Appeals Board requested the opinion of Dr. Peter Nordström,
a specialist in psychiatry regularly consulted by the immigration
authorities (förtroendeläkare). After having examined the applicant
himself, Dr. Nordström, in a statement of 16 March 1995, agreed with
Dr. Skoglund that the applicant's symptoms indicated that he was
suffering from a post-traumatic stress syndrome. Dr. Nordström,
however, found it questionable whether there was a great and imminent
suicide risk in view of the fact that the applicant had not made any
suicide attempts so far. Dr. Nordström further considered that the
applicant had a certain need of psychiatric care, although, allegedly,
the prognosis for the applicant's mental state was not considerably
worse in Yugoslavia. Dr. Nordström made the following further
conclusions:
"The documentation shows that certain medical impediments
to enforcement [of the expulsion] may exist and that, in
any case, the medical circumstances require special
considerations. Due to the psychiatric symptoms, especially
[the applicant's] aggressions in combination with his
feeling of being misunderstood and unfairly treated and the
existence of detailed and violent, though conditional,
suicide plans, there is a risk of suicidal acts in
connection with an expulsion decision, particularly in an
enforcement situation. An attempt at enforcing a possible
further expulsion decision requires the participation of
competent and experienced personnel so as to reduce the
risk of desperate and aggressive suicidal or other
impulsive acts."
In reply to Dr. Nordström's statement, the applicant submitted
a further medical certificate issued by Dr. Skoglund on 29 March 1995
and a statement of 21 March 1995 by Mr. Marcello Ferrada-Noli, a
licentiate in medical science. Dr. Skoglund stated that the applicant
was in need of psychiatric care which was not available in Yugoslavia.
Mr. Ferrada-Noli considered that the applicant was suffering from a
post-traumatic stress syndrome and that there was a severe suicide
risk, more due to the applicant's traumatic experiences than the
expulsion threat. For this reason, there was allegedly a great risk of
suicide attempts also after the return of the applicant to Yugoslavia.
On 20 April 1995 the new application was rejected by the Appeals
Board. It considered that the applicant's state of health was mainly
due to the stressful situation of living in hiding and the uncertainty
as regards the question whether he would be allowed to stay in Sweden.
The Board concluded that the applicant's mental health did not
constitute sufficient humanitarian grounds for granting him a residence
permit, but noted that the precautions recommended by Dr. Nordström
should be followed during the enforcement of the expulsion.
A further application by the applicant was rejected by the
Appeals Board on 30 June 1995.
After the Commission had indicated to the respondent Government,
pursuant to Rule 36 of its Rules of Procedure, that it was desirable
not to deport the applicant until the Commission had had an opportunity
to examine the present application, the National Immigration Board, by
decision of 6 September 1995, stayed the enforcement of the expulsion
order pending the Commission's decision on the admissibility of the
application.
No preparations for the applicant's expulsion have yet been made,
as he is still in hiding and as, at present, the Yugoslavian
authorities do not allow the return of persons holding passports issued
by the former Federal Republic of Yugoslavia.
COMPLAINT
The applicant complains that his expulsion to Yugoslavia would
violate Article 3 of the Convention. He claims that he is in danger in
Yugoslavia due to his ethnic origin and to the fact that he has
witnessed how the laws of war have been ignored by the Serbian armed
forces and para-military groups. Furthermore, he risks severe
punishment for desertion. There is also a significant risk that he will
be involved in direct military actions. Finally, his mental health has,
as confirmed by the medical certificates, deteriorated substantially
and the risk of self-destructive acts should not be neglected.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 16 August and registered on
22 August 1995.
On the latter day the President of the Commission decided,
pursuant to Rule 36 of the Commission's Rules of Procedure, to indicate
to the respondent Government that it was desirable in the interest of
the parties and the proper conduct of the proceedings not to deport the
applicant to Yugoslavia until the Commission had had an opportunity to
examine the application. The President further decided, in accordance
with Rule 48 para. 2 (b) of the Rules of Procedure, to communicate the
application to the respondent Government.
By decisions of 14 September and 26 October 1995, the Commission
prolonged its indication under Rule 36, ultimately until
8 December 1995.
The Government's observations were submitted on 11 October 1995
after an extension of the time-limit fixed for that purpose. The
applicant replied on 12 November 1995.
THE LAW
The applicant complains that his expulsion to Yugoslavia would
violate Article 3 (Art. 3) of the Convention, which reads as follows:
"No one shall be subjected to torture or to inhuman or
degrading treatment or punishment."
The Government submit that the application should be declared
inadmissible for being manifestly ill-founded. The Government argue
that the applicant will not be involved in any direct military actions
against his own will, as the Yugoslavian Army, at present, is not
involved in a war. There are no obstacles to deporting the applicant
even if he would be enrolled in the army. There is no indication that
persons in the applicant's position have received treatment contrary
to Article 3 (Art. 3) by the military authorities. Furthermore, if the
applicant is brought to trial for desertion or for evading military
service, a risk which itself is quite limited, the penalty he would
receive would not amount to a violation of Article 3 (Art. 3). The
Government maintain that the Yugoslavian authorities, at present, lack
financial and practical resources to deal with the many deserters that
have left the country in recent years. If deserters are brought to
trial, there is, allegedly, a tendency to apply mild penalties like
shorter prison sentences, suspended sentences or even fines.
As regards the applicant's mental state, the Government submit
that the expulsion of the applicant will not exceed the threshold under
Article 3 (Art. 3), although the medical certificates clearly indicate
that the applicant suffers from serious mental disturbances. The
Government recall the decision of the Aliens Appeals Board of 20 April
1995, in which the Board has given special directives for the
enforcement of the expulsion order. The Government also note that, when
enforcing the expulsion, the authority in charge must notify the
National Immigration Board if it finds that enforcement cannot take
place without risking the applicant's life or health or if further
information is needed. In such a case, the Immigration Board may decide
to stay the enforcement or take other necessary measures.
The applicant submits that, before leaving Yugoslavia, he was
serving in a military unit together with several Serbian right-wing
extremists. The extremists harassed the other unit members, especially
the Albanians, with the silent approval of the officers. The extremists
further committed several crimes against the civilians, including rape,
burglary and murder. The applicant would be able to give testimony
before a court which would be damaging to the Yugoslavian army and
Government. There is thus reason to believe that he will be prevented
from giving testimony or will lack protection from those who would not
hesitate to silence him for good. The applicant further claims that he
might have to take part in direct military actions upon return, as the
Yugoslavian Government, at present, is mobilising its armed forces.
Moreover, he may very well face punishment contrary to Article 3
(Art. 3) due to his desertion from the army. With regard to his present
state of health, the applicant, referring to the medical certificates
in the case, states that there is a serious and imminent suicide risk
should the expulsion order be enforced.
The Commission recalls that Contracting States have the right to
control the entry, residence and expulsion of aliens (cf., e.g.,
Eur. Court H.R., Vilvarajah and Others judgment of 30 October 1991,
Series A no. 215, p. 34, para. 102). However, an expulsion decision may
give rise to an issue under Article 3 (Art. 3) of the Convention, and
hence engage the responsibility of the State, where substantial grounds
have been shown for believing that the person concerned would face a
real risk of being subjected to torture or to inhuman or degrading
treatment or punishment in the country to which he or she is to be
expelled (ibid., p. 34, para. 103). A mere possibility of ill-treatment
is not in itself sufficient (ibid., p. 37, para. 111).
With respect to the risk allegedly facing the applicant upon
return to Yugoslavia, the Commission considers that there is no
indication that he will have to take part in direct military actions
or that a possible sanction for desertion would be so severe as to
raise an issue under Article 3 (Art. 3). Moreover, he has not submitted
any evidence in support of his claim that he would suffer harassment
from members of the Yugoslavian army or from the Yugoslavian
authorities. For these reasons, the Commission does not find it
established that there are substantial grounds for believing that he
would be exposed to a real risk of being subjected to treatment
contrary to Article 3 (Art. 3) in Yugoslavia.
Moreover, the Commission recalls that Chapter 8, Section 1 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 (cf. No. 25387/94,
Kas Ibrahim and Parsom v. Sweden, Dec. 4.7.95, unpublished).
The Commission next has to examine whether, in view of the
applicant's state of health, an enforcement at present of the expulsion
order would in itself involve such a trauma for him that Article 3
(Art. 3) would be violated.
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 (cf. Eur. Court H.R., Cruz Varas and
Others judgment of 20 March 1991, Series A no. 201, p. 31,
paras. 83-84).
In the present case several medical certificates have been
adduced by the applicant. The Commission has paid particular attention
to the opinions of Dr. Skoglund of 15 February 1995 and of
Dr. Nordström of 16 March 1995, according to which the applicant shows
symptoms of suffering from a post-traumatic stress syndrome, is in need
of psychiatric care and might try to commit suicide in connection with
the enforcement of the expulsion order.
The Commission is satisfied that the police authority in charge
of the enforcement of the expulsion order will take into account the
applicant's state of health when deciding how the expulsion should be
carried out. In this connection, the Commission recalls that the Aliens
Appeals Board, in its decision of 20 April 1995, noted that the
expulsion should be enforced in accordance with Dr. Nordström's
recommendations, i.e. with the participation of competent and
experienced personnel so as to reduce the risk of suicidal acts by the
applicant. The Commission further notes that, should the applicant,
who, apparently, is not undergoing psychiatric care at present, later
be taken into compulsory psychiatric care due to his mental problems,
the expulsion order could under no circumstances take place without the
permission of the chief physician responsible for his care
(cf. No. 27249/95, Lwanga and Sempungo v. Sweden, Dec. 14.9.95, D.R.
83-A).
In the above circumstances, the Commission does not find it
established that the applicant's return to Yugoslavia would amount to
a violation of Article 3 (Art. 3) on account of his present state of
health.
It follows that the application is 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) (S. TRECHSEL)
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