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FIFTH
SECTION
CASE OF NACIC AND OTHERS v. SWEDEN
(Application
no. 16567/10)
JUDGMENT
STRASBOURG
15
May 2012
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Nacic and Others v.
Sweden,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Dean Spielmann,
President,
Elisabet Fura,
Karel Jungwiert,
Mark
Villiger,
Ann Power-Forde,
Ganna
Yudkivska,
André Potocki, judges,
and
Claudia Westerdiek, Section
Registrar,
Having
deliberated in private on 10 April 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 16567/10) against the Kingdom
of Sweden lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by Mr Sladjan Nacic and Mrs Jelena Nacic, a
married couple, and their sons Alexander and Milan, Sladjan Nacic and
(“the applicants”), on 18 March 2010.
- The
applicants were represented by Mr S. de Geer, a lawyer practising in
Stockholm. The Swedish Government (“the Government”) were
represented by their Agent, Ms C. Hellner, of the Ministry for
Foreign Affairs.
- The
applicants complained that deportation of the first, second and
fourth applicants to Kosovo or Serbia would be in violation of
Articles 3 and 8 of the Convention.
- On
26 March 2010 the President of the Third Section decided to apply
Rule 39 of the Rules of Court, indicating to the Government that it
was desirable in the interests of the parties and the proper conduct
of the proceedings not to deport the first, second and fourth
applicants until further notice.
- On
14 October 2010 the application was communicated to the Government.
It was also decided to rule on the admissibility and merits of the
application at the same time (Article 29 § 1).
- On
1 February 2011 the Court changed the composition of its Sections
(Rule 25 § 1 of the rules of Court) and the above application
was assigned to the newly composed Fifth Section.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
first applicant is Mr Sladjan Nacic born in 1969, the second
applicant is Mrs Jelena Nacic born in 1971, and the third and fourth
applicants are their sons, born in 1991 and 1994. They are currently
in Sweden.
A. Background and proceedings before the national
authorities
- The
applicants are of Roma descent and lived in the village of Kosovo
Polje. Following the outbreak of war in 1999, the first applicant
refused to participate in the fighting and hid from the armed forces.
Due to this, the other applicants were subjected to threats and
beatings by Serbian military. Finally, they were driven out of their
home by Albanian militia. They fled by train to Suvi Do, another
village in Kosovo. On their way, they lost a bag containing their
passports and identification papers. They hid at a friend’s
home, where they remained completely isolated from the world until
they travelled to Sweden in 2006. They had felt harassed in Kosovo
because of their being Roma, but they had not been subjected to any
persecution, allegedly due to their isolation. They applied for
asylum and permanent residence permits on arrival.
- On
13 March 2008 the Migration Board (Migrationsverket) rejected
their applications. First, the Board found that the applicants had
not proved their identity. By submitting an UNMIK certificate on
their residency in Kosovo Polje, they had made it plausible that they
were from Kosovo or Serbia. However, the Board found that neither the
general situation in Kosovo nor that in Serbia was such that it in
itself constituted grounds for granting asylum. Also, the Board found
that the applicants were not to be considered as refugees or as in
need of any other specific protection. In regard to the applicants’
Roma ethnicity, the Board noted that the first applicant’s
mother was Serb, that none of the family members spoke Romani or had
any contact with other Roma. In Kosovo, they had lived in Serb areas
and had only socialised with Serbs. In the Board’s view, it was
difficult to conclude in these circumstances that the applicants
would be seen as Roma upon return. Noting, furthermore, that they had
not been subjected to any persecution because of their ethnicity
previously, the Board concluded that they had failed to show that
there was such a risk upon return.
- The
Board went on to assess whether the applicants’ personal
situation could constitute a ground for granting residence permits.
The first, second and third applicants submitted that they suffered
from medical problems.
- The
first applicant claimed that he was hypertonic. The Board found that
this was a common medical condition and that he would not be subject
to any medical risk if he were to return to Kosovo or Serbia.
- The
second applicant claimed that she suffered from psychological
problems and submitted a certificate issued by a nurse on 24 January
2008 and extracts from her medical records covering the period from
12 April to 17 December 2007. The Board found that the
certificate had not been issued in accordance with Swedish
regulations and did not contain any prognosis. Therefore, it was not
able to assess fully the gravity of her condition or what type of
care she needed. Nevertheless, it found that her condition was not
life-threatening and thus could not constitute a ground for granting
a residence permit.
- The
third applicant claimed that he also suffered from psychological
problems and submitted a medical certificate issued by a senior
physician on 25 January 2008. The Board found that the medical
certificate did not contain any diagnosis and that it therefore could
not assess whether or not the applicant could receive appropriate
medical care in Kosovo or Serbia. The Board noted that treatment for
depression was offered both in Kosovo and Serbia. It further noted
that the applicant’s health had not improved after he had
received treatment in Sweden and that his condition would probably
only improve if he were in a more secure and stable environment.
- The
applicants appealed to the Migration Court (Migrationsdomstolen)
in Malmö where they held to their earlier submissions and added
the following. The whole family moved to a children’s home in
July 2008, when the authorities decided that the parents did not have
the ability to take care of their children under the existing
circumstances. The applicants also submitted several medical
certificates regarding the first, second and third applicants.
According to the certificates regarding the first and second
applicants, there was a risk that they might commit suicide if they
were to be expelled from Sweden. Regarding the second applicant, it
was stated that she had earlier attempted suicide and that she showed
clear signs of post-traumatic stress disorder (PTSD).
- According
to the certificate regarding the third applicant, issued on
27 September 2008 by Ann-Marie Nyberg, specialist in youth
psychiatry, he was in a very bad state on arrival in Sweden. He was
depressed and could hardly interact with other persons. During the
spring of 2007, he was in contact with the Children and Youth
Psychiatric Care Unit (Barn- och ungdomspsykiatrin) in
Lindesberg, which found that he suffered from depression. His
condition improved when he started school and began to play football
and also had a contact person assigned. However, after the Migration
Board’s decision in March 2008, his depression became worse
again. He isolated himself at home and became apathetic. In June
2008, he attempted suicide by overdose of anti-depressants. He was
committed to hospital, but discharged after one day. When the family
arrived at the children’s home in July 2008, he was in very
poor condition, refused to eat solid food and stayed in bed most of
the time. There would be a serious risk of another suicide attempt if
he were to be expelled from Sweden.
- On
1 December 2008 the Migration Court rejected the appeal, upholding
the Board’s reasoning and conclusion, adding the following. The
third applicant would soon be 18 years old. Although he suffered from
severe depressive devitalisation, it could not be assumed that his
psychosocial development would be damaged if he were to be expelled
from Sweden. Also, psychiatric care was available in both Kosovo and
Serbia, at least for those who could pay. Therefore, neither the
third applicant’s health nor his personal situation were enough
to justify granting him a residence permit. This reasoning also
applied to the other applicants, who were all in better health. Two
of the lay judges delivered a dissenting opinion finding that the
third applicant’s health constituted a sufficient reason to
grant him a residence permit. Applying the principle of respect for
family life, they also found that the rest of the family should be
granted a right to stay.
- The
applicants proceeded to the Migration Court of Appeal
(Migrationsöverdomstolen) and submitted that they had
been subjected to persecution in Kosovo due to their ethnicity and
that this had caused their health problems. Their possibilities to
receive proper care if sent back were limited, especially regarding
the third applicant. Also, they would not have access to the health
care system due to their ethnicity. Their health had deteriorated, as
allegedly shown by several medical certificates submitted.
- On
23 November 2009 the Migration Court of Appeal delivered its
judgment. Regarding the third applicant, the court found that the
medical certificates showed that he suffered from severe mental
illness, that he was unlikely to get better in the foreseeable future
and that the necessary treatment presupposed that he was in a safe,
secure and stable environment. Furthermore, it found that health care
was available in both Kosovo and Serbia, but that the applicant’s
health issues had arisen due to events taking place there.
Considering all this, the court quashed the lower court’s
judgment and granted him a permanent residence permit. Regarding the
other applicants, it upheld the lower court’s reasoning and
decision.
- Two
dissenting opinions were attached to the appellate court’s
judgment. In the first, one of the judges held that the third
applicant had recently turned 18 years old, that he therefore should
be regarded as an adult and that his circumstances should be assessed
separately from the other applicants. Taking this into account, and
also the fact that proper health care would be available to him in
Kosovo or Serbia, the judge found that he had no right to remain in
Sweden. He should therefore be expelled together with the other
applicants.
- In
the second dissenting opinion, another judge held that the medical
certificates clearly showed that the first, second and third
applicants in particular suffered from severe mental illness. The
documents available also showed that the condition for the third
applicant’s well-being was a safe, secure and stable
environment. Although he had turned 18, the family’s situation
had to be taken as a whole. Therefore, all of the applicants should
be granted permanent residence permits.
- On
5 February 2010 the applicants lodged a new request for residence
permits on the basis that there were impediments to the enforcement
of their deportation order. They submitted new medical certificates
and argued that their conditions had worsened. On 24 February 2010
the Migration Board rejected the request as it found that the
applicants had invoked no new circumstances of importance and that
there were no impediments to the enforcement of the first, second and
fourth applicants’ deportation order. Moreover, as the third
applicant had reached the age of majority, they could no longer be
granted residence permits on account of family ties to him.
B. Events during the proceedings before the Court
- On
18 March 2010 the applicants requested the Court to indicate to the
Swedish Government under Rule 39 of the Rules of Court a suspension
of the first, second and fourth applicants’ deportation to
Kosovo or Serbia.
- On
23 March 2010, the applicants submitted new medical certificates
concerning the first, the second and the third applicants. The
certificates were issued jointly by Ann-Marie Nyberg, specialist in
youth psychiatry, Anna-Karin Klenell-Hjerm, psychologist and
psychotherapist, and Teija Jyrinki Kärkkäinen, trained
social worker and psychotherapist and were dated December 2009.
The
medical certificate regarding the first applicant stated that he
suffered from grave depression, insomnia and eating disorders. He had
suicidal tendencies, but had not made any suicide attempts out of
concern for his children. The diagnosis was grave depression and
complex PTSD. According to the medical certificate regarding the
second applicant, her condition was serious and possibly fatal and
she would not be able to cope with a separation from her son. The
prognosis was that all treatment presupposed a safe, secure and
stable environment. She was diagnosed with grave depression,
depressive devitalisation and complex PTSD. The medical certificate
regarding the third applicant stated that he was in need of
professional therapy to be able to deal with his traumatic
experiences. It was not possible for him to cope without the support
of his family. If his parents and his brother were to be returned to
Kosovo or Serbia, there was a grave risk that his depression would
become worse and that his rehabilitation would be compromised. He was
diagnosed with grave depression, depressive devitalisation and
complex PTSD.
- On
16 June 2011, the applicants submitted new medical certificates
issued by Ann-Marie Nyberg and dated June 2011. According to these,
the first applicant had been feeling slightly better since the family
had moved from the children’s home to an apartment in
Trollhättan in December 2010. However, he still suffered from
feelings of futility and despair. The second applicant had been
feeling better since the Court’s decision not to deport them
until further notice. However, she had recently been feeling worse
again due to her fear of a possible deportation. She still suffered
from severe depression and PTSD and was worried about the third
applicant’s health. The third applicant had gradually been
feeling better since he had been granted a residence permit. However,
his positive development had been halted by the threat of disruption
of the family and he showed clear signs of falling into depression
again. The fourth applicant had, due to his young age, been spared
the traumatic experiences in Kosovo. However, according to the
medical certificate, a disruption of the family could be expected to
cause him a severe trauma.
II. RELEVANT DOMESTIC LAW
25. The basic provisions mainly applicable in the present case,
concerning the right of aliens to enter and to remain in Sweden, are
laid down in the Aliens Act (Utlänningslagen, 2005:716 –
hereafter referred to as “the Aliens Act”), as amended on
1 January 2010. The following refers to the Aliens Act in force at
the relevant time.
26. Chapter 5, Section 1, of the Aliens Act stipulates that an
alien who is considered to be a refugee or otherwise in need of
protection is, with certain exceptions, entitled to a residence
permit in Sweden. According to Chapter 4, Section 1, of the
Aliens Act, the term “refugee” refers to an alien who is
outside the country of his or her nationality owing to a well-founded
fear of being persecuted on grounds of race, nationality, religious
or political beliefs, or on grounds of gender, sexual orientation or
other membership of a particular social group and who is unable or,
owing to such fear, is unwilling to avail himself or herself of the
protection of that country. This applies irrespective of whether the
persecution is at the hands of the authorities of the country or if
those authorities cannot be expected to offer protection against
persecution by private individuals. By “an alien otherwise in
need of protection” is meant, inter alia, a person who
has left the country of his or her nationality because of a
well-founded fear of being sentenced to death or receiving corporal
punishment, or of being subjected to torture or other inhuman or
degrading treatment or punishment (Chapter 4, Section 2, of the
Aliens Act).
- Moreover,
if a residence permit cannot be granted on the above grounds, such a
permit may be issued to an alien if, after an overall assessment of
his or her situation, there are such particularly distressing
circumstances (synnerligen ömmande omständigheter)
to allow him or her to remain in Sweden (Chapter 5, section 6 of the
Aliens Act).
- As
regards the enforcement of a deportation or expulsion order, account
has to be taken of the risk of capital punishment or torture and
other inhuman or degrading treatment or punishment. According to a
special provision on impediments to enforcement, an alien must not be
sent to a country where there are reasonable grounds for believing
that he or she would be in danger of suffering capital or corporal
punishment or of being subjected to torture or other inhuman or
degrading treatment or punishment (Chapter 12, Section 1, of the
Aliens Act). In addition, an alien must not, in principle, be sent to
a country where he or she risks persecution (Chapter 12, Section
2, of the Aliens Act).
- Under
certain conditions, an alien may be granted a residence permit even
if a deportation or expulsion order has gained legal force. This
applies, under Chapter 12, Section 18, of the Aliens Act, where new
circumstances have emerged that mean there are reasonable grounds for
believing, inter alia, that an enforcement would put the alien
in danger of being subjected to capital or corporal punishment,
torture or other inhuman or degrading treatment or punishment or
there are medical or other special reasons why the order should not
be enforced. If a residence permit cannot be granted under this
provision, the Migration Board may instead decide to re-examine the
matter. Such a re-examination shall be carried out where it may be
assumed, on the basis of new circumstances invoked by the alien, that
there are lasting impediments to enforcement of the nature referred
to in Chapter 12, Sections 1 and 2, of the Aliens Act, and these
circumstances could not have been invoked previously or the alien
shows that he or she has a valid excuse for not doing so. Should the
applicable conditions not have been met, the Migration Board shall
decide not to grant a re-examination (Chapter 12, Section 19, of the
Aliens Act).
- It
should also be noted that Chapter 1, Section 2 of the Aliens Act
defines a child as a person under 18 years of age.
- Under
the Aliens Act, matters concerning the right of aliens to enter and
remain in Sweden are dealt with by three instances; the Migration
Board, the Migration Court and the Migration Court of Appeal (Chapter
14, Section 3, and Chapter 16, Section 9, of the Aliens Act).
III. INFORMATION ABOUT KOSOVO AND SERBIA
- The U.S. Department of State 2010
Country Reports on Human Rights Practices, states, inter
alia, the following
regarding the situation in Kosovo:
“Institutional and societal discrimination
persisted against Kosovo Serb, Roma, Ashkali, and Egyptian
communities in employment, education, social services, language use,
freedom of movement, the right to return, and other basic rights.
Members of the Kosovo Bosniak and Gorani communities also complained
of discrimination, while Kosovo Croat and Kosovo Montenegrin
communities were nominally acknowledged through appointment of their
representatives to the Kosovo president’s Communities’
Consultative Council. Kosovo Bosniak leaders continued to complain
that many of their community members continued to depart the country
as a result of discrimination and, increasingly, an absence of
economic opportunities. Members of the Roma, Ashkali, and Egyptian
communities were subject to pervasive social and economic
discrimination; often lacked access to basic hygiene, medical care,
and education; and were heavily dependent on humanitarian aid for
survival. Reports of violence and other crimes directed at minorities
and their property persisted. There were clashes between groups of
Kosovo Albanians and Kosovo Serbs during the year.”
- The
International Organisation for Migration’s report “Returning
to Kosovo, country information” from 1 December 2009 provides
the following:
“The public health care system in Kosovo is still
in a phase of post-war reconstruction. The rehabilitation of the
mental health system is one of the priorities of the MoH [...].
However, the system faces many challenges. The number of mental
health professionals is very limited and the present educational
system for mental health is underdeveloped. Existing institutions
also have limited access modern know-how in psychiatry. Nevertheless,
there is a favourable environment for accelerating reforms, supported
by the Mental Health Strategy 2008-2011 of the MoH.
The mental health needs of the severely traumatised
population are very high but there is only one psychiatrist for
90,000 inhabitants and one mental health worker for 40,000
inhabitants. There are only five clinical psychologists and a small
number of social workers. The psychiatric treatment provided is
biologically-oriented, using pharmaceuticals and hospitalisation as
the main, if not the only, tools.
This sector suffers also from the destruction of medical
equipment during and since the conflict in 1999. Treatment of
post-traumatic stress disorder (PTSD), which became a matter of the
greatest importance after the wars in Yugoslavia and the turmoil in
Kosovo in March 2004, is in desperate need of improvement. Some
calculations suggest that 140,000 to 200,000 people (an estimated
7-10% of the population) are suffering from PTSD. The mental health
care system in Kosovo simply does not have sufficient resources of
people or facilities to respond to the need for treatment for mental
health disorders.
Because of the lack of clinical psychologists and
psychiatrists, there is almost no time for psychotherapy. The extreme
lack of beds for chronically mentally ill people, and the lack of
forensic psychiatry services aggravate the problem. There is only one
child psychiatrist in the public health service to provide adolescent
mental health services for a population that is overall very young.
Drug addiction is also a growing problem without an adequate solution
because of the lack of specialised professionals and institutions.
However, with international support, new facilities,
called “Houses of Integration”, have been opened in
Gjakovë/Djakovica, Gjilan/Gnjilane, Prizren, Mitrovicë/a
and Drenas/Gllogovac. These facilities offer protected apartments for
people with minor mental health problems, as well as therapeutic and
psycho-social support. In 2006 the new Intensive Care Psychiatric
Unit (ICPU) of the UCC in Prishtinë/Priština became
operational. This facility is intended to offer psychiatric treatment
to people with severe mental health problems. The Swiss Red Cross and
the Psychiatric University of Basel (Switzerland) will provide
training support to the ICPU.
Community Mental Health Centres offer community-based
outpatient mental health services and can be found in the following
cities: Gjakovë/Djakovica, Mitrovicë/a, Ferizaj/Uroševac,
Prizren, Pejë/ Peć, Prishtinë/Priština,
Gjilan/Gnjilane
There are neuropsychiatry wards at general hospitals for
acute psychiatry in: Prizren, Pejë/Peć, Gjakovë/Djakovica,
Mitrovicë/a, Gjilan/Gnjilane, Prishtinë/Priština In
Prishtinë/Priština the neuropsychiatry ward is at the
UCC. The ward in Prishtinë/Priština provides 75 acute
psychiatric beds, while wards in other regions provide around 16 beds
for psychiatric patients. In addition, there are special institutions
(SSI) in Prishtinë/Priština and Shtime/Štimlje.
These institutions come under the mandate of the Ministry of Labour
and Social Welfare (MLSW). They were intended to provide services to
a specific population with severe learning difficulties during the
previous regime but they ended up accommodating about 70 people with
psychiatric problems. The mental health services, through the
programme of protected apartments, are supporting the
de-institutionalisation of patients in Gjilan/Gnjilane and
Gjakovë/Djakovica, which are designed for the rehabilitation of
long-term psychiatric patients. The MLSW has its own programme to
improve the quality of life in the institutions.”
- The
Non-Governmental Organisation Praxis report “Access to rights
and integration of returnees on the basis of readmission agreements,
analysis of the main problems and obstacles” provides, inter
alia, the following regarding the health care for Roma in Serbia:
“Health care
In order for a person in the Republic of Serbia to
exercise the right to health care, he/she needs to be registered in
the system of mandatory health insurance and to possess a health
booklet. In addition to the proof of insurance (employment contract,
decision on the right to pension, etc.), one needs to present an ID
card or a birth certificate (for minors) in order to register for
insurance and issuance of a health booklet. The request is submitted
at the branch office of the Republic Institute for Health Insurance
(RIHI) as per place of permanent/temporary residence. The Law on
Health Insurance identifies Roma, who do not have a registered
permanent/temporary residence in Serbia, as a category of persons for
whom contributions are paid from the budget of the Republic. However,
the Rulebook on the Method and Procedure of Exercise of Rights from
Mandatory Health Insurance in effect until July 2010 stipulated that
when applying for registration to health insurance, Roma must give a
statement on belonging to this population, and the proof of temporary
residence registration in addition to it.
As the said regulation was in contravention of the Law
on Health Insurance, Praxis sent a request to the Constitutional
Court to assess the legality of this regulation. In July 2010, the
Rulebook on Amendments to the Rulebook on the Method and Procedure of
Exercise of Rights from Mandatory Health Insurance stipulating that
the Roma who do not have permanent/temporary residence registered on
the territory of the municipality they truly live in, may register
health insurance by giving only a statement about the address at
which they truly live in addition to the statement on belonging to
the Roma minority. The implementation of these changes in the
Rulebook was not uniform. Partly due to inadequate levels of
information of employees in RIHI branch offices throughout Serbia,
partly due to resistance to the concrete novelties and lack of
sensitivity, the branch offices in certain municipalities refused to
enable Roma to exercise the right to health insurance and issue
health booklets under the above stated conditions. On behalf of its
clients, Praxis intervened repeatedly and pointed to the changed
regulations, managing to have its clients registered. Also, as the
impossibility to register permanent residence makes obtaining ID
cards impossible, the RIHI branch offices request that Roma submit at
least birth certificates instead of ID cards. Returnees on the basis
of the readmission agreements with travel documents are allowed only
access to urgent medical care for which the Republic budget funds are
allocated, until regulation of the status of an insured person or
until the expiry of the validity of the travel document. Returnees
who fail to obtain ID cards or birth certificates for children born
within the period of validity of the travel document (e.g.
re-registration into registry books or registration in birth registry
book abroad was not done) will remain outside the health care system.
Only exceptionally will some RIHI branch offices issue health
booklets to undocumented persons and establish a provisional
citizen’s unique personal number.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicants complained that they all suffered from mental health
problems and that deportation of the first, second and fourth
applicants to Kosovo or Serbia would amount to treatment in violation
of Article 3 of the Convention both in respect of the third
applicant’s health, since to separate him from the rest of the
family would jeopardise his chances of getting well, and also in
respect of the other applicants’ health.
Article
3 of the Convention reads, in its relevant parts, as follows:
“No
one shall be subjected to torture or to inhuman or degrading
treatment or punishment.”
A. Admissibility
- The
Court notes that the complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The submissions of the parties
(a) The applicants
- The
applicants maintained that they all suffered from mental health
problems caused by traumatic experiences in Kosovo.
- They
also stressed the difficulties for them to obtain adequate care in
Kosovo and Serbia because of the ongoing discrimination against Roma.
Furthermore, registration by the authorities, which presupposed a
house or apartment contract, was required in order to be eligible for
health care. In the applicants’ opinion this implied that in
practice it would be very hard for them to obtain health care in
Kosovo and Serbia. However, they made clear that they did not claim
that the actual removal procedure would be in breach of Article 3 of
the Convention.
- The
applicants further submitted that their mental health had generally
improved since the Court had decided to grant their request under
Rule 39 of the Rules of Court. The observations by the Government,
had, however, halted this positive development. The third applicant
seemed to be falling back into depression and the first, second and
fourth applicants felt a renewed threat of the family being split up.
(b) The Government
- The
Government stressed that the issue of whether the first, second and
fourth applicants’ mental health should entitle them to
residence permits on grounds of exceptionally distressing
circumstances (Chapter 5, Section 6 of the Aliens Act) had been
considered by the domestic authorities. In their view, the concept of
exceptionally distressing circumstances offered a wider protection
than Article 3 of the Convention.
- They
observed that the applicants claimed to have been traumatised in
their country of origin due to events that took place in 1999.
However, after their arrival in Sweden in 2006, their state of health
had deteriorated in spite of access to extensive and continued care.
- The
Government further emphasised that one of the main considerations
when planning the enforcement of a deportation order in cases where
the rejected asylum seeker suffered from ill-health was to make sure
that his or her condition did not deteriorate as a consequence of the
enforcement. This implied for example that a deportation order would
not be enforced unless the responsible authority deemed that the
medical condition of the individual so permitted. Provided that the
individual in question consented, the responsible authority might
arrange for the alien to be met and taken care of by medical staff
upon arrival and for medical records and other medical documentation
to be sent in advance so that proper care can be organised.
-
They further noted that the first and the second applicants’
mental health had been problematic in 2009. However, in December 2010
they had left the children’s home on their own initiative and
moved in with the third applicant in his apartment in Trollhättan.
In the Government’s opinion this indicated that the first and
second applicants were no longer in need of continued care and
treatment. Furthermore, according to the medical certificates, the
applicants’ mental ill-health was rather related to their
uncertain situation and the prospect of being expelled, than to
traumatic experiences in their country of origin.
- In
the Government’s opinion, the risk that the first, second and
fourth applicants’ health would deteriorate if they were
returned to Serbia or Kosovo, was to a large extent speculative. They
further stressed that adequate health care was available in Kosovo
and Serbia.
- The
Government thus concluded that the applicants’ state of health
could not be considered serious enough to make an enforcement of the
expulsion order contrary to the standards of Article 3 of the
Convention.
- In
conclusion, the Government maintained that there were no substantial
grounds for believing that Article 3 of the Convention would be
violated if the applicants were returned to Kosovo or Serbia.
2. The Court’s assessment
(a) General principles
- The
Contracting States have the right as a matter of international law
and subject to their treaty obligations, including the Convention, to
control the entry, residence and expulsion of aliens (See, inter
alia, Üner v. the Netherlands [GC], no. 46410/99, §
54, ECHR 2006 XII; Abdulaziz, Cabales and Balkandali v. the
United Kingdom, 28 May 1985, § 67, Series A no. 94; and
Boujlifa v. France, 21 October 1997, § 42, Reports of
Judgments and Decisions 1997 VI.
- However,
expulsion by a Contracting State may give rise to an issue under
Article 3, and hence engage the responsibility of that State under
the Convention, where substantial grounds have been shown for
believing that the person concerned, if deported, faces a real risk
of being subjected to treatment contrary to Article 3. In such a
case, Article 3 implies an obligation not to deport the person in
question to that country (Saadi v. Italy [GC],
no. 37201/06, § 125, 28 February 2008).
- Aliens
who are subject to expulsion cannot, in principle, claim any
entitlement to remain in the territory of a Contracting State in
order to continue to benefit from medical, social or other forms of
assistance and services provided by the expelling State. The fact
that the applicant’s circumstances, including his life
expectancy, would be significantly reduced if he were to be removed
from the Contracting State is not sufficient in itself to give rise
to a breach of Article 3. The decision to remove an alien who is
suffering from a serious mental or physical illness to a country
where the facilities for the treatment of that illness are inferior
to those available in the Contracting State may raise an issue under
Article 3, but only in a very exceptional case, where the
humanitarian grounds against the removal are compelling (see, N.
v. the United Kingdom [GC], no. 26565/05, § 42, 27 May
2008).
(b) The applicants’ case
- Turning
to the circumstances of the present case, the Court has to determine
whether a deportation of the first, second and fourth applicants
would amount to treatment in violation of Article 3 of the
Convention; both in respect of their health and in respect of the
third applicant’s health. The question is thus whether the
applicants’ case is so exceptional that humanitarian grounds
against the removal of the first, second and fourth applicants are
compelling.
- The
Court first notes that the applicants were heard by the Migration
Board and that the first applicant was heard before the Migration
Court. Furthermore, since the Migration Court of Appeal granted leave
to appeal, their claims were carefully examined by three instances
which delivered decisions containing extensive reasons for their
conclusions. In this regard, the Court also takes note of the
argument put forward by the Government that the fact that the
Migration Court of Appeal granted the third applicant a residence
permit even though it considered that he could receive adequate care
in Kosovo and Serbia, suggests that “exceptionally distressing
circumstances” in the Aliens Act – at least as applied in
the present case – provides more extensive protection than
Article 3 of the Convention.
- According
to the submitted medical
certificates, the applicants’ state of health had improved
after the Court’s decision not to deport them until further
notice. This positive development had, however, allegedly been halted
when they received the observations by the Government.
In the Court’s opinion, this indicates that the applicants’
state of health is to a large degree connected to the situation in
which they find themselves at the moment, where the first, second and
fourth applicants face a risk of being expelled from Sweden.
- The
Court further notes that the
applicants left the Oasen treatment centre in 2010 and there is no
information about any of them currently undergoing psychiatric or
other treatment. The Court further observes that the medical
certificates mainly contain descriptions of how the applicants
themselves feel and that only the second applicant has a medical
diagnosis (PTSD and severe depression). The third applicant is now 21
years old and appears to live a relatively normal life. Even if there
inevitably is a risk that his mental health might deteriorate if the
other applicants are deported, such risk is speculative rather than
real and concrete. In this regard the Court also refers to its
finding under Article 8 (see below paragraphs 77-86).
- The Court further considers that there
are no elements either indicating that the State will
not react to a concrete threat as far as possible or that the State
will enforce the deportation order if it is medically impossible for
the applicants to travel to their home country. The Court also notes
that medical treatment is available in Kosovo and Serbia. The fact
that the applicants’ circumstances would be less favourable
than those they enjoy in Sweden cannot be regarded as decisive from
the point of view of Article 3 (see Bensaid v. the
United Kingdom, no. 44599/98, § 38, ECHR 2001-I; Salkic
and others v. Sweden (dec.), no. 7702/04, 29 June 2004; and
Al-Zawatia v. Sweden (dec.) no. 50068/08, 22 June 2010).
- Accordingly, having regard to the high threshold set
by Article 3, particularly where the case does not concern the
direct responsibility of the Contracting State for possible harm, in
the Court’s view, the present case does not disclose very
exceptional circumstances.
- Having
regard to all of the above, the Court concludes that the applicants
have not established that there are substantial grounds for believing
that a deportation of the first, second and fourth applicants would
amount to treatment in violation of Article 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicants complained that the Migration Court of Appeal’s
decision not to grant the first, second and fourth applicants
residence permits was in breach of Article 8 of the Convention. They
argued that although the third applicant was to be considered legally
an adult, his health and development were at such a stage that he
still had a right to respect for family life with his parents.
Article
8 of the Convention 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.”
- The
Government contested the claim.
A. Admissibility
- The
Court notes that this part of the application is not manifestly
ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. The submissions of the parties
(a) The applicants
- The
applicants maintained that their right to family life would be
violated if the first, the second and the fourth applicants were to
be deported to Kosovo or Serbia. They held that the fact that the
third applicant had turned 18 years old before the final domestic
decision had been taken had not had any effect on their family life;
they had lived together throughout the proceedings and still did.
- In
the applicants’ view, a deportation of the first, second and
fourth applicants would be in violation of the Convention and hence
would not be in accordance with national law since the Convention was
part of national law since 1 January 1995.
- The
applicants further argued that the interference would not serve a
legitimate aim since the economic well-being of Sweden could not be
considered to justify deporting them.
- They
also stressed the difficulties for them to obtain adequate care in
Kosovo and Serbia because of the ongoing discrimination against Roma.
Furthermore, registration by the authorities, which presupposed a
house or apartment contract, was required in order to be eligible for
health care. In the applicants’ opinion this implied that it
was in practice very hard for them to obtain health care in Kosovo
and Serbia.
(b) The Government
- The
Government held that the first issue to be considered was whether the
applicants had a family life in Sweden within the meaning of Article
8 of the Convention and, if so, whether deportation of the first,
second and fourth applicants would amount to an interference with the
applicants’ right to respect for their family life.
- They
argued that the fact that the third applicant had turned 18 years old
during the national proceedings suggested that the ties between him
and the other applicants had been broken for the purpose of Article
8. However, it acknowledged that the Court’s case-law indicated
that the applicants’ family life had remained intact in spite
of this fact.
- They
further stressed that the present case did not relate to settled
immigrants but to individuals seeking asylum. Thus, the applicants
were aware that they ran a risk of having their asylum application
rejected and of being expelled together or separately, provided that
it was compatible with domestic law and applicable international
standards.
-
The Government further argued that the third applicant had been
exceptionally granted a residence permit because, at the time of the
Migration Court of Appeal’s judgment, he was suffering from
severe mental illness that was unlikely to improve in the foreseeable
future and required treatment in a safe, secure and stable
environment. The health of the other applicants was, however, not
considered to be such that they were in need of treatment in Sweden.
- They
argued that although the third applicant’s health situation had
been considered difficult enough for application of Chapter 5,
section 6 of the Aliens Act, it did not disclose such exceptional
circumstances that Sweden was under an obligation under Article 3 to
refrain from expelling him. Furthermore, both the Migration Court of
Appeal and the Migration Court had considered that the third
applicant could receive adequate care in his country of origin. In
the Government’s opinion it could therefore be argued that the
separation, which de facto would occur if the first, second
and fourth applicants were returned to Kosovo or Serbia, should not
be considered an interference with their family life within the
meaning of the Convention, in particular taking into account that the
third applicant had reached the age of majority. In their view, if a
Contracting State provides more extended protection than suggested by
Article 3 of the Convention and grants residence permits to aliens
with severe health problems so that they can benefit from appropriate
care, it would be unreasonable to impose an obligation on them under
Article 8 to allow family members – who have no legitimate
right of their own to remain – to stay in the country.
-
The Government further held that if the Court were to find that there
had been an interference with the applicants’ right to respect
for their family life, it was evident that the expulsion orders
against the first, second and fourth applicants were in accordance
with law within the meaning of Article 8 § 2 of the
Convention. They further argued that the regulation in the Aliens Act
served the legitimate aim of protecting the economic well-being of
Sweden and preventing disorder.
- As
to whether the interference was necessary in a democratic society,
the Government argued that, according to the submitted medical
certificates, the applicants’ current state of health was
treatable and, in that context, transient. They pointed out that the
third applicant, and subsequently the other applicants, had moved
from the children’s home where they had lived and received
treatment for approximately two and a half years. In the Government’s
opinion there was thus nothing to indicate that the applicants could
not eventually be reunited in Serbia or Kosovo, if they so wished.
Furthermore, since none of the applicants suffered from a permanent
disease or functional disorder which would prevent them from
travelling in the future, there were, in the long term, no health
reasons to prevent them from visiting each other. They further argued
that there were no practical obstacles for the applicants to visit
each other in the respective countries. Hence, in the Government’s
view, the applicants were not prevented from maintaining their social
relations as a family merely because one family member had been
granted a residence permit in Sweden.
- The
Government also referred to the argument in paragraph 68 above that
it would be unreasonable to impose on a Contracting State, which
provides more extended protection than suggested by Article 3 of the
Convention, an obligation under Article 8 to refrain from removing
family members who do not have the right - either under domestic law
or according to the Court’s established case-law under Article
3 of the Convention - to remain in the country. In this regard, the
Government emphasised that the applicant, who was born on 6 February
1991, was now 21 years old and that his health might improve over
time. In the meantime there were several ways for the applicants to
keep in contact.
- They
concluded that, taking into account the margin of appreciation
afforded to States under Article 8 § 2, the impugned measure had
succeeded in striking a fair balance between the personal interests
of the applicants as regards their family life on the one hand and
the public interest in ensuring an effective implementation of
immigration control on the other. Accordingly, they contended that
the alleged interference with the applicants’ family life was
“necessary in a democratic society” within the meaning of
Article 8 § 2 of the Convention.
2. The Court’s assessment
(a) Interference with the applicants’
rights under Article 8 § 1 of the Convention
- In
the Court’s case-law relating to expulsion and extradition
measures, the main emphasis has consistently been placed on the
“family life” aspect, which has been interpreted as
encompassing the effective “family life” established in
the territory of a Contracting State by aliens lawfully resident
there, it being understood that “family life” in this
sense is normally limited to the core family (see, mutatis
mutandis, Marckx v. Belgium, judgment of 13
June 1979, Series A no. 31, p. 21, § 45; see also, X v.
Germany, no. 3110/67, Commission decision of 19 July 1968,
Collection of decisions 27, pp. 77-96). The Court has, however, also
held that the Convention includes no right, as such, to establish
one’s family life in a particular country (see, inter alia,
Abdulaziz, Cabales and Balkandali v. the United Kingdom,
judgment of 28 May 1985, Series A no. 94, p. 34, § 68; Gül
v. Switzerland, judgment of 19 February 1996, Reports of
Judgments and Decisions 1996-I, pp. 174-75, § 38; and
Boultif v. Switzerland, no. 54273/00, § 39,
ECHR 2001-IX).
- The
Court further observes that the case-law has consistently treated the
expulsion of long-term residents under the head of “private
life” as well as that of “family life”, some
importance being attached in this context to the degree of social
integration of the persons concerned (see, for example, Dalia v.
France, judgment of 19 February 1998, Reports 1998-I, pp.
88-89, §§ 42-45). Moreover, the Court has recognised that
Article 8 applies to the exclusion of displaced persons from their
homes (see Cyprus v. Turkey [GC], no. 25781/94, § 175,
ECHR 2001-IV).
- The
question in the present case is whether, in view of the
circumstances, the applicants still had a family life in Sweden
within the meaning of Article 8 of the Convention after the third
applicant had reached the age of majority and, if so, whether the
Migration Court of Appeal’s decision to deport the first,
second and fourth applicants amounted to an unjustified interference
with this right.
- The
Court notes that the applicants have lived together as a family ever
since arriving in Sweden in 2006 and that they presumably lived
together in Kosovo before that. The fact that the third applicant
reached the age of majority during the domestic proceedings did not
change the fact that he was still a dependent member of the applicant
family, in particular considering his state of health. In these
circumstances the Court considers that the applicants’
situation amounted to family life within the meaning of Article 8 §
1 of the Convention even after the third applicant had reached the
age of majority. It further finds that the impugned decision to
remove the first, second and fourth applicants from Sweden interfered
with the applicants’ right to family life.
(b) Justification of the interference
- Such
interference will be in breach of Article 8 of the Convention unless
it can be justified under paragraph 2 of Article 8 as being “in
accordance with the law”, as pursuing one or more of the
legitimate aims listed therein, and as being “necessary in a
democratic society” in order to achieve the aim or aims
concerned.
- According
to the established case-law of the Court, the expression “in
accordance with the law” requires that the impugned measure
should have some basis in domestic law, and it also refers to the
quality of the law in question, requiring that it should be
accessible to the person concerned and foreseeable as to its effects
(see Amann v. Switzerland [GC], no. 27798/95, § 50,
ECHR 2000-II).
- The Court notes that the Migration Court of Appeal
relied on Chapter 5, section 6, of the Aliens Act and concluded that
there were particularly distressing circumstances to allow the third
applicant to remain in Sweden. It further observes that pursuant to
the Aliens Act, the third applicant was to be considered as an adult
(see paragraph 31) and, therefore, the appellate court considered his
application separately from the other applicants. In these
circumstances, the Court finds that the impugned interference was
sufficiently clear and foreseeable and thus “prescribed by law”
within the meaning of the Convention. The Court further accepts that
the legitimate aim pursued was to ensure an effective implementation
of immigration control and hence to preserve the economic well-being
of Sweden, within the meaning of paragraph 2 of Article 8.
- A
measure interfering with rights guaranteed by Article 8 § 1 of
the Convention can be regarded as being “necessary in a
democratic society” if it has been taken in order to respond to
a pressing social need and if the means employed are proportionate to
the aims pursued. The national authorities enjoy a certain margin of
appreciation in this matter. The Court’s task consists of
ascertaining whether the impugned measures struck a fair balance
between the relevant interests, namely the individual’s rights
protected by the Convention on the one hand and the community’s
interests on the other.
- The
Court reiterates that Article 8 does not entail a general obligation
for a State to respect immigrants’ choice of the country of
their residence and to authorise family reunion in its territory.
Nevertheless, in a case which concerns family life as well as
immigration, the extent of a State’s obligations to admit to
its territory relatives of persons residing there will vary according
to the particular circumstances of the persons involved and the
general interest (see Gül v. Switzerland, 19 February
1996, § 38, Reports 1996-I). Factors to be taken into
account in this context are the extent to which family life is
effectively ruptured, the extent of the ties in the Contracting
State, whether there are insurmountable obstacles to the family
living in the country of origin of one or more of them and whether
there are factors of immigration control (for example, a history of
breaches of immigration law) or considerations of public order
weighing in favour of exclusion (see Solomon v. the Netherlands
(dec.), no. 44328/98, 5 September 2000).
- The
Court first notes that the applicants were heard by the Migration
Board, the Migration Court and the Migration Court of Appeal, that
their claims were carefully examined and that the Swedish authorities
delivered decisions containing extensive reasons for their
conclusions.
- The
Court further notes that both the Migration Court and the Migration
Court of Appeal came to the conclusion that the third applicant could
receive adequate medical care in Kosovo and Serbia. In this
connection, the Court observes that mental health care is available
in Kosovo and Serbia; albeit still under reconstruction and not of
the same standard as in Sweden.
- The
third applicant is now 21 years old and has lived in Sweden with the
other applicants since 2006. According to the most recent medical
certificate, dated June 2011, he had begun to feel better since being
granted a residence permit. He had left the treatment centre and
moved to an apartment. He had also begun studies at a college for
adults. However, his positive development had been halted by the
threat of disruption of the family and he had showed signs of falling
back into depression. While acknowledging that
this information is worrying, the
Court finds that it has to be taken into account that the medical
certificate mainly contains a description of how the applicant
himself feels and that it neither suggests that he currently has a
medical condition, nor that he is undergoing psychiatric or other
treatment. In the Court’s opinion, the medical
certificate also indicates that his state of health is connected to a
large extent to the situation he is in at the moment. Furthermore,
as far as the Court is informed, there has been no
further deterioration of his health since June 2011.
- Notwithstanding
the Migration Court of Appeal’s assessment of the third
applicant’s mental health state in November 2009, the Court
agrees with the Government that his current state of health cannot be
seen as creating an impediment for him to reunite with the other
applicants in their country of origin. Moreover, if necessary, he
could receive medical care in Kosovo and Serbia. Against this
background and taking into account the applicants’ relatively
limited ties to Sweden, the Court does not find that there are any
insurmountable obstacles for the applicants to live together as a
family in their country of origin.
- The
Court further has regard to the applicants’ Roma ethnicity. It
notes that the applicants have made reference to the general
difficulties for Roma in Kosovo and Serbia, including their access to
medical care. However, it finds that the general situation in Kosova
and Serbia is not sufficient to conclude that people of Roma
ethnicity cannot be sent there. In regard to the applicants’
personal situation, the Court notes that, while in Kosovo, they lived
in Serb areas and had no contact with other Roma and that they do not
speak Romani. Furthermore, between 1999 and their travel to Sweden in
2006, they were apparently not subjected to any act that could be
described as discrimination or persecution. In conclusion, the Court
does not find that the applicants’ Roma ethnicity would have
such consequences that their rights under the Convention would be
disrespected if they were deported to Kosovo or Serbia.
- Having
regard to all the circumstances and taking into account the margin of
appreciation afforded to States under Article 8 § 2 of the
Convention, the Court considers that the Swedish authorities did not
fail to strike a fair balance between the personal interests of the
applicants as regards their family life on the one hand and to ensure
an effective implementation of immigration control and hence to
preserve the economic well-being of Sweden on the other.
- Accordingly,
there has been no violation of Article 8 of the Convention.
III. RULE 39 OF THE RULES OF COURT
- The
Court reiterates that, in accordance with Article 44 § 2 of the
Convention, the present judgment will not become final until (a) the
parties declare that they will not request that the case be referred
to the Grand Chamber; or (b) three months after the date of the
judgment, if reference of the case to the Grand Chamber has not been
requested; or (c) the Panel of the Grand Chamber rejects any request
to refer under Article 43 of the Convention.
- It considers that the indication made to the
Government under Rule 39 of the Rules of Court must remain in
force until the present judgment becomes final or until the Panel of
the Grand Chamber of the Court accepts any request by one or both of
the parties to refer the case to the Grand Chamber under Article 43
of the Convention (see F.H. v. Sweden, no. 32621/06, §
107, 20 January 2009).
FOR THESE REASONS, THE COURT
- Declares the application admissible unanimously;
- Holds unanimously that there has been no
violation of Article 3 of the Convention;
- Holds by five votes to two that there has been
no violation of Article 8 of the Convention;
- Decides to continue to indicate to the
Government under Rule 39 of the Rules of Court that it is desirable
in the interests of the proper conduct of the proceedings not to
expel the first, second and fourth applicants until such time as the
present judgment becomes final or until further order.
Done in English, and notified in writing on 15 May 2012, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Dean Spielmann Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the separate opinion of Judges
Spielmann and Power-Forde is annexed to this judgment.
D.S.
C.W.
PARTIALLY DISSENTING OPINION OF JUDGES SPIELMANN AND
POWER-FORDE
- We
voted against the finding that there has been no violation of Article
8 of the Convention.
- Despite
their traumatic experiences following the outbreak of war in Kosovo
in 1999, the applicants have, under tremendously difficult
circumstances, managed to maintain their essential bond as a family
unit. They are of Roma ethnicity and have the added vulnerability of
mental health problems, with two of them having a history of
attempted suicide.
- The
Government did not dispute that the state of health of all the
applicants causes grave concern and has even deteriorated after 2006
(paragraph 40). The Migration Court of Appeal accepted that there
were particularly distressing circumstances to allow the third
applicant to remain in Sweden (paragraphs 18 and 78). Like the
dissenting judge in the Migration Court of Appeal (paragraph 20), we
are of the opinion that the family’s situation had to be taken
as a whole. It would be both unrealistic and a disproportionate
interference in their family life to expect the third applicant, in
his vulnerable state of health, to fend for himself in Sweden while
his entire support structure is taken from him or to expect the rest
of his family to leave him there and to return to an (as yet) unknown
destination to live in the most precarious of conditions.
- All
the applicants claim that the decision not to grant residence permits
to the first, second and fourth applicants was in breach of Article 8
of the Convention. In particular, they claim that their family life
would be violated if all but the third applicant were to be deported
to either Kosovo or Serbia.
- In
our view, the uncertainty concerning the country of destination makes
it difficult for all the authorities concerned, including the Court,
to appraise the potential impact of the impugned deportation order
upon family life and, hence, the proportionality of the interference.
Be that as it may, the situation of Roma in both Kosovo and Serbia is
highly problematic. This results, clearly, from paragraphs 32 to 34
of the judgment which quotes extensively from reports of independent
international bodies that monitor the situation ‘on the
ground’.
These reports confirm ‘pervasive’ institutional and
societal discrimination against Roma in Kosovo in the areas of
education, social services and other basic rights. They lack access
to basic hygiene and medical care and are heavily dependent on
humanitarian aid for survival. The reports reveal the availability of
one psychiatrist per 90,000 inhabitants and they note that the mental
health needs of this severely traumatised population are very high.
- The
situation in Serbia is no less reassuring. To exercise the right to
access health care, registration within the system is necessary.
Registration, essentially, requires a permanent place of residence
without which the obtaining of ID cards becomes impossible. Being
without a home, the applicants in this case are likely to face
insurmountable difficulties in attempting to access social security
benefits.
- It
is against this background that we are of the opinion that the
interference cannot, in the particular circumstances of this case, be
regarded as complying with the proportionality principle. The
reasoning set out in paragraphs 82-85 of the judgment is not
convincing. We are, therefore, unable to follow the majority view
which finds that the applicants’ Roma ethnicity would not have
such consequences that their rights under the Convention would be
disrespected if they were to be deported to Kosovo or Serbia.
