AS TO THE ADMISSIBILITY OF
Application No. 28392/95
by Jose Luis VELITA FLORES
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 6 March 1995 by
Jose Luis VELITA FLORES against Sweden and registered on 31 August 1995
under file No. 28392/95;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
THE FACTS
The applicant is a Peruvian citizen, born in 1970 and currently
in hiding in Sweden. He is represented by Mr. Per Stadig, a lawyer in
Stockholm.
Particular circumstances of the case
The applicant left Peru in November 1992, allegedly fearing
harassment and arrests on suspicions of terrorism. He arrived in Sweden
on 30 November 1992 and requested asylum on 2 December 1992. In his
asylum request he alleged that his life would be in danger, should he
be returned to Peru. He alleged that he had been working as a press and
propaganda secretary to the youth branch of a legally recognised party.
As a result he had been harassed both by the police and a terrorist
group. He had been arrested on 2 July 1992 in connection with a
demonstration and accused of being a terrorist. He had been released
after three days following pressure mounted by a students'
organisation. In September 1992 his home had been searched and he had
received anonymous death threats by mail. His father, who had refused
to continue cooperating with the terrorists, had allegedly been killed.
His father's activities had been the cause of the harassment of
himself. He had left Peru with a valid passport and with the help of
a friend at the passport control.
On 27 May 1993 the applicant's asylum request was rejected after
an oral hearing before the National Immigration Board (Statens
invandrarverk). The Board considered that the arrest invoked by the
applicant had been of a short duration and bore the character of an
individual incident. Having regard to his activities in Peru, the Board
found that his fears concerning a return to that country were
exaggerated. The Board also noted that on arrival in Sweden the
applicant had possessed no passport. When reporting the loss of his
passport to the Swedish police, he had stated having entered the
country as a tourist. This contradicted his subsequent asylum request.
In his appeal to the Aliens Appeals Board (Utlänningsnämnden) the
applicant submitted a certificate of membership in Partido Aprista
Peruano ("APRA") and a certificate showing that he was studying at a
university in Lima. He submitted that, if expelled, he would
immediately be arrested and accused of being a member of the terrorist
organisation "The Shining Path" ("Sendero Luminoso").
On 2 May 1994 the Aliens Appeals Board (Utlänningsnämnden)
rejected the applicant's appeal.
In August 1994 the applicant requested a residence permit in
Sweden on humanitarian grounds, referring to a medical report stating
that he was suffering from depression and paranoia but noting that he
had not disclosed any concrete suicidal plans.
On 8 September 1994 the Aliens Appeals Board rejected the
applicant's new request after having heard Dr. Peter Nordström, a
psychiatrist and one of the experts normally consulted by the Board in
cases of this kind (förtroendeläkare).
Soon thereafter the applicant lodged a further request with the
Aliens Appeals Board for a residence permit on humanitarian grounds,
again invoking his mental state. He had again sought treatment in a
hospital for the mentally ill and had been considered to suffer from
a paranoid psychosis.
The Aliens Appeals Board again heard Dr. Nordström, whose report
of 24 October 1994 contains, inter alia, the following information: On
13 September 1994 the applicant had, accompanied by his sister, sought
emergency psychiatric care after he had attempted to throw himself in
front of a bus and on another occasion in front of a subway train. He
had also attempted to slash his wrists. His relatives and friend had
allegedly prevented him from carrying out the suicide attempts. The
doctor examining him after the slashing-incident had noted a 20
centimetre scar on one of his arms caused by "scratching" by a piece
of glass. The applicant had been admitted for care but had left the
hospital on 21 September 1994.
In his report Dr. Nordström concluded that there existed certain,
at least temporary, medical obstacles to enforcing the expulsion order
concerning the applicant. He considered that enforcement of the
expulsion order would entail a certain risk of suicidal acts on the
part of the applicant. Dr. Nordström therefore indicated that
psychiatric expert assistance would seem necessary during an
enforcement attempt and that further care of the applicant should
possibly be planned in Peru.
On 12 December 1994 the Aliens Appeals Board rejected the
applicant's request. It noted that he had been voluntarily admitted for
hospital care in Sweden and had been granted a number of day and
weekend leaves from the hospital where he had been staying. Moreover,
the medication and care which he was in need of would also be available
in Peru.
Subsequently the applicant requested a reconsideration of the
Board's decision of 12 December 1994, now invoking a medical report of
4 January 1995 according to which he had been suffering from a
psychosis ever since he had been notified of that decision.
On 2 March 1995 the Aliens Appeals Board dismissed the request
for a reconsideration of its decision of 12 December 1994 and rejected
the applicant's claim in so far as it amounted to a renewed request for
a residence permit. In the last-mentioned respect the Board in essence
upheld the reasons invoked in its decision of 12 December 1994.
According to a further medical report of 21 March 1995 by
Dr. Michael Brune, a psychiatrist and neurologist, the applicant's
mental state had further deteriorated. He had been suffering from a
psychosis since the summer of 1994. He had become increasingly
paranoid, suspecting, for instance, that his sister was serving him
human meat. He had continuously been expressing suicidal thoughts. He
was clearly in need of hospital care, but Dr. Brune had hesitated to
order his compulsory mental care in view of the trauma this could
cause. Dr. Brune concluded that enforcement of the expulsion order
would further aggravate the applicant's mental state.
According to a further report of 24 March 1995, the applicant had
visited Dr. Brune on that day. During his visit he had seen police cars
and officers in the street and had immediately feared being apprehended
in Dr. Brune's office. He had then shown Dr. Brune a razor blade with
which he had threatened to "slice himself up", should the police enter
the premises. Eventually, he had been convinced by Dr. Brune that the
police had not been called there to apprehend him and had agreed to
hand over the razor blade to Dr. Brune.
The following information appears in a further report by
Dr. Brune dated 21 June 1995: On 12 June 1995 the applicant had
voluntarily sought care at the Emergency Psychiatric Clinic of the
Karolinska Hospital and had been admitted. On 13 June 1995 he had been
transferred to another hospital but there he had been informed that he
should return to the Karolinska Hospital. Meanwhile, the police had
received information about his care and whereabouts. On his return to
the Karolinska Hospital he had either noticed the presence of police
officers awaiting his return or had a paranoid illusion. As a result
he had left the hospital area and instead gone to stay with his sister.
On 18 June 1995 the applicant and his sister had visited Dr. Brune.
According to the sister, the applicant had been carrying a knife in her
flat. He had been threatening her and her baby daughter with the knife
and she had had to lock her bedroom door so as to be safe in the night-
time. He had failed to follow medical prescriptions and had accused her
and Dr. Brune of being "traitors".
In his report of 21 June 1995 Dr. Brune concluded that the
applicant's situation could have catastrophic consequences for himself
or others, unless he could be given adequate care. He was clearly in
need of institutional psychiatric care but Dr. Brune estimated that
resorting to police assistance so as to have him compulsorily placed
in such care would not be in the applicant's best interests.
According to a letter from the President of the Peruvian
Association of Physicians to Dr. Brune dated 16 June 1995, a poor
person without a family suffering from chronic schizophrenia has no
possibility of obtaining adequate care in Peru.
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.
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).
COMPLAINT
The applicant complains that his expulsion to Peru would, if
presently enforced, violate Article 3 of the Convention on account of
his current state of health which has allegedly deteriorated
significantly during the spring and summer of 1995. Reference is made,
in particular, to certain suicide attempts. He recalls that
the reports submitted to the Aliens Appeals Board by Dr. Nordström have
been based merely on the already existing written documentation of the
applicant's health. However, even according to this expert an
enforcement would entail a risk to the applicant's health. The
applicant furthermore submits that even if he were placed in compulsory
psychiatric care Swedish law would not prevent enforcement of the
expulsion order. As a result he does not dare to seek adequate
psychiatric care in Sweden. Nor can his need of adequate care on his
return to Peru be guaranteed.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 6 March 1995 and registered on
31 August 1995.
On 12 April 1995 the Commission decided not to indicate 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 further.
THE LAW
The applicant complains that his return to Peru would constitute
treatment contrary to Article 3 (Art. 3) of the Convention, having
regard to his current state of health. Article 3 (Art. 3) reads as
follows:
"No one shall be subjected to torture or to inhuman or
degrading treatment or punishment."
The Commission recalls that Contracting States have the right to
control the entry, residence and expulsion of aliens. 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, for instance,
inhuman or degrading treatment in the country to which he is to be
expelled (e.g., Eur. Court H.R., Vilvarajah and Others judgment of
30 October 1991, Series A no. 215, p. 34, paras. 102-103). A mere
possibility of ill-treatment is not in itself sufficient (ibid., p. 37,
para. 111).
The question to be answered in the case in issue is whether the
enforcement at present of the expulsion order concerning the applicant
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). The
Commission recalls, however, 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 instance, the sex, age and
state of health of the victim (the above-mentioned Cruz Varas and
others judgment, loc.cit.).
The Commission observes that the enforcement of the expulsion
order concerning the applicant has not been opposed by the expert
consulted by the Aliens Appeals Board apparently on condition that
psychiatric expert assistance would be guaranteed during an actual
enforcement attempt. The Commission assumes that no enforcement will
take place without this condition being met.
The Commission therefore finds that in the circumstances of this
case it is not unreasonable to assume that the applicant's return to
Peru would not amount to a violation of Article 3 (Art. 3). It appears,
moreover, that, should he be placed in compulsory care in Sweden,
enforcement could 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 to assess, in a
decisive manner, the applicant's state of health at the time of the
planned enforcement.
In these circumstances the Commission cannot find it to have been
shown that the applicant's possible return to Peru would amount to a
violation of Article 3 (Art. 3) on account of his current state of
health.
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, 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