AS TO THE ADMISSIBILITY OF
Application no. 45920/99
by Stjepan PAVLOVIC
The European Court of Human Rights (First Section) sitting on 23 February 1999 as a Chamber composed of
Mr J. Casadevall, President,
Mrs E. Palm,
Mr L. Ferrari Bravo,
Mr G. Jörundsson,
Mr R. Türmen,
Mr C. Bîrsan,
Mrs W. Thomassen, Judges
with Mr M. O’Boyle, Section Registrar;
Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 6 November 1998 by Stjepan Pavlovic against Sweden and registered on 3 February 1999 under file no. 45920/99;
Having regard to the report provided for in Rule 49 of the Rules of Court;
Decides as follows:
The applicant, born in 1970, presently resides in Karlskrona, Sweden. In his application form, he states that he has Croatian nationality.
The facts of the case, as submitted by the applicant, may be summarised as follows.
a. Particular circumstances of the case
On 19 November 1993 the applicant arrived in Sweden. He requested asylum three days later. He had a Croatian passport but stated that he considered himself to be a citizen of Bosnia-Hercegovina and not of Croatia. He claimed further that he had been a soldier in the Bosnian-Croatian army from which he had deserted.
On 9 September 1994 the National Immigration Board (Statens invandrarverk) rejected the applicant’s request and ordered his deportation to Croatia. The Board found that the applicant held both Bosnian and Croatian citizenship. Noting that the prevailing situation in Bosnia-Hercegovina rendered a deportation to that country impossible, the Board examined the applicant’s situation with respect to Croatia. The Board found that he did not risk to be sent from Croatia to Bosnia-Hercegovina or to be punished for desertion in Croatia.
The applicant appealed to the Aliens Appeals Board (Utlänningsnämnden). On 2 June 1995 the Appeals Board granted the applicant a temporary residence permit until 1 December 1995 and quashed the deportation order. In so doing, the Board referred to a Government decision of 5 May 1995 according to which the worsened situation in Croatia constituted an impediment to the deportation of asylum seekers to that country.
On 16 November 1995 the applicant submitted a new application for a residence permit. He referred to his previous statements and added that he is an ethnic Croat from Kresevo in Bosnia-Hercegovina. Further, he had been informed by his parents in Bosnia-Hercegovina that he had been sentenced to five years’ imprisonment for desertion. He was convinced that, if returned to that country, he would have to serve the sentence and also risk harassment as the majority of the population in his home district were now Muslims. The applicant referred also to the time he had spent in Sweden.
On 24 February 1997 the Immigration Board rejected the applicant’s new application and ordered his deportation to Croatia. The Board had regard to a guiding decision taken by the Swedish Government on 28 November 1996. In that decision the Government stated, inter alia, the following:
“As regards the situation in Croatia and the region, the ongoing peace process, based on a general agreement on peace in Bosnia-Hercegovina, has lead to stabilisation. The relations between Croatia and the Federal Republic of Yugoslavia have improved. Croatia has been admitted into the Council of Europe. Acts of warfare have not occurred on Croatian territory since August 1995. The risk of further conflicts appears unlikely. The general situation in Croatia has improved in such a way since the Government’s previous assessment in May 1995 that nowadays Croatian citizens can generally be afforded protection in Croatia.”
As in its previous decision concerning the applicant, the Board found that he could not be sent back to Bosnia-Hercegovina. The Board considered, however, that the applicant’s submissions did not show that he was unable to go to Croatia.
Following the applicant’s appeal, the Aliens Appeals Board, on 23 April 1997, quashed the Immigration Board’s decision and referred the case back for re-examination. The Appeals Board found that no oral hearing had been held by the Immigration Board, as required by law.
The Immigration Board later held an oral hearing at which the applicant stated that, being a Catholic, he would be persecuted by Muslims in Bosnia-Hercegovina. He maintained further that he had obtained his Croatian passport illegally and that he could not be considered as a citizen of that country. He had no relatives or friends in Croatia and could not see any reasons why Croatia should admit him. Allegedly, during his stay in Sweden he had adjusted to Swedish society.
In a decision of 17 July 1997 the Immigration Board rejected the applicant’s new application and ordered that he be deported to either Bosnia-Hercegovina or Croatia. The Board referred to the Swedish Government’s decision of 28 November 1996 in which the following conclusions were drawn as regards the situation in Bosnia-Hercegovina:
“Recently, the situation in Bosnia-Hercegovina has improved. After the parties signed a general agreement on peace in Bosnia-Hercegovina there is an ongoing peace process in the country. It has been strengthened by the establishment of Government institutions and the general elections held in September 1996. There are still actual restrictions on the movement of people within the territory of the State. The possibility to return to the home district without risking harassment and outrage is, in the present circumstances, dependent on the prevailing ethnic composition of the population in the district. In the Government’s view, it is now possible to return to the home district where one’s own ethnic group is in the majority. This view corresponds to the position taken by the UNHCR in regard to the return of people to Bosnia-Hercegovina. The relative stability enjoyed by “the majority population” in the respective regions leads to the conclusion that asylum seekers from such places in Bosnia-Hercegovina can no longer be considered as generally being in need of protection.”
The Board noted that, according to information from the United Nations High Commissioner for Refugees (UNHCR), the majority of the population in Kresevo were Catholics. Consequently, the applicant’s fear of persecution was considered to be exaggerated. The Board considered also that the amnesty laws enacted in Bosnia-Hercegovina would be applicable to the applicant.
As regards the possible deportation of the applicant to Croatia, the Board considered that the applicant’s Croatian passport was genuine and noted that the applicant had previously stated that this was the case. According to the Board, there was thus no reason to assume that Croatia would not afford him protection. In this respect, the Board again referred to information available from the Swedish Government and the UNHCR. This view had been confirmed also by the Croatian Government. Finally, the Board found that there were no reasons of a humanitarian nature to grant the applicant a residence permit.
On 9 March 1998 the Aliens Appeals Board upheld the Immigration Board’s decision.
On 16 June 1998 the applicant submitted yet another application for a residence permit to the Appeals Board. He referred to his long stay in Sweden and to the fact that he had already had a temporary residence permit. Furthermore, he claimed that, while serving in the Bosnian-Croatian army, he had seen how his neighbour and a work-mate had been killed. His experiences during the war, a difficult childhood and his fears of persecution and punishment for desertion in Bosnia-Hercegovina had impaired his mental health and rendered the deportation to that country impossible. He could not be deported to Croatia either, as he had no connections to Croatia and as the situation for Bosnian Croats in Croatia had worsened as of late. He invoked a medical certificate issued on 3 April 1998 by chief physician E.A. and psychologist L.L. at the psychiatric clinic at the hospital in Karlskrona, according to which the applicant suffered from insomnia, anxiety and flashbacks from the war.
By a decision of 25 June 1998 the Appeals Board rejected the applicant’s latest application.
In a further medical certificate issued at the above-mentioned psychiatric clinic on 2 December 1998 physician M.N. stated that the applicant, as from 19 November 1998, received treatment at the clinic for a post-traumatic stress syndrome. M.N. found that there was a considerable risk that the applicant would attempt to commit suicide. The applicant states that he has since left the clinic but that he continues to visit his psychiatrist on a regular basis.
b. Relevant domestic law
Under Section 29 of the Act on Compulsory Mental Care (Lagen om psykiatrisk tvångsvård, 1991:1128), such care shall be terminated at the request of the competent police authority whenever the person placed in care is ordered to be deported. This presupposes, however, that the chief physician finds that the alien’s condition allows that the deportation takes place. According to Section 33, no appeal lies against the chief physician’s decision.
Invoking Article 4 of Protocol No. 4 to the Convention, the applicant claims that he will be collectively expelled together with other Bosnian Croats. He states that, in assessing his applications, the Swedish Government and immigration authorities have treated him as belonging to a group of Bosnian Croats and have failed to properly examine his individual claims.
1. The applicant complains that his deportation to Croatia would involve a violation of Article 4 of Protocol No. 4 to the Convention, which provision reads as follows:
“Collective expulsion of aliens is prohibited.”
The Court finds that collective expulsion is to be understood as any measure compelling aliens, as a group, to leave a country, except where such a measure is taken on the basis of a reasonable and objective examination of the particular case of each individual alien of the group. Moreover, the fact that a number of aliens receive similar decisions does not lead to the conclusion that there is a collective expulsion when each person concerned has been given the opportunity to put arguments against his expulsion to the competent authorities on an individual basis (see application no. 14209/88, decision of 16 December 1988, DR 59, p. 274).
In the present case, the Court notes that the Swedish Government issued guidelines for the assessment of asylum applications submitted by persons holding both Bosnian and Croatian citizenship. Furthermore, in examining the applicant’s case, the National Immigration Board and the Aliens Appeals Board had regard to the general situation for persons with the applicant’s background in Bosnia-Hercegovina and Croatia.
However, the applicant submitted individual applications to the immigration authorities and was able to present any arguments he wished to make against his possible deportation to the respective countries. The authorities took into account not only the general situation in the countries but also the applicant’s statements concerning his own background and the risks allegedly facing him upon return. In rejecting his applications, the authorities issued individual decisions concerning the applicant’s situation.
In these circumstances, the Court considers that the applicant’s possible deportation does not reveal any appearance of a collective expulsion within the meaning of Article 4 of Protocol No. 4 to the Convention.
It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
2. The Court finds that the present application should be examined also under Article 3 of the Convention. This provision reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
The Court recalls that Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations including the Convention, to control the entry, residence and expulsion of aliens. However, an expulsion decision may give rise to an issue under Article 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 (see, among other authorities,
the Vilvarajah and Others v. the United Kingdom judgment of 30 October 1991, Series A no.215, p. 34, §§ 102-103). A mere possibility of ill-treatment is not in itself sufficient (ibid., p. 37, § 111).
In the present case, the Court recalls that the Swedish immigration authorities have ordered the applicant’s deportation to Bosnia-Hercegovina or Croatia. Apparently, the applicant is an ethnic Croat from Bosnia-Hercegovina. Furthermore, the applicant holds double citizenship. Having regard to the applicant’s statements and the conclusions drawn by the Swedish Government and the UNHCR the Court cannot find that he will be subjected to ill-treatment if returned to his home district in Bosnia-Hercegovina or to Croatia. In this connection, the Court finds that even if the applicant were to serve the five-year prison sentence for desertion he has allegedly received, this does not amount to ill-treatment falling under Article 3 of the Convention. Thus, the Court considers that there are not substantial grounds for believing that the applicant faces a real risk of being subjected to treatment contrary to Article 3 if returned to either of the countries in question.
However, without making a special reference in his complaint, the applicant has submitted a medical certificate showing that he is suffering from a post-traumatic stress syndrome and that there is a considerable risk of his attempting to commit suicide should he be deported from Sweden. In this connection, the Court notes that, in assessing whether a deportation involves such a trauma that it in itself constitutes a breach of Article 3 of the Convention, its physical and mental effects and the state of health of the person concerned are to be taken into account (see Eur. Court HR, Cruz Varas and Others v. Sweden judgment of 20 March 1991, Series A no. 201, p. 31, §§ 83-84, and the opinion of the Commission, p. 87, §§ 87-90).
In so far as the applicant’s mental problems relate to his fear of what will happen to him upon return to Bosnia-Hercegovina or Croatia, the Court recalls its above finding that no substantial basis has been shown for this fear. Moreover, the Court is satisfied that the police authority in charge of the enforcement of the deportation order will take into account the applicant’s state of health when deciding how the deportation is to be carried out. In this connection, it is to be noted that, should the applicant be taken into compulsory psychiatric care due to his mental problems, the deportation could under no circumstances take place without the permission of the chief physician responsible for his care (see application no. 27249/95, decision of 14 September 1995, DR 83, p. 91). The Court notes further that the applicant has been discharged from the psychiatric clinic where he previously received treatment.
In these circumstances, the Court does not find it established that the applicant’s deportation would amount to a violation of Article 3 of the Convention on account of his present state of health.
It follows that this part of the application is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
For these reasons, the Court, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
O’Boyle Josep Casadevall
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