AS TO THE ADMISSIBILITY OF
Application no. 45923/99
by Ljuban ANDRIJIC
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 Ljuban Andrijic against Sweden and registered on 3 February 1999 under file no. 45923/99;
Having regard to the report provided for in Rule 49 of the Rules of Court;
Decides as follows:
The applicant, born in 1965, 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.
On 9 March 1994 the applicant arrived in Sweden and requested asylum. He stated that he was a citizen of Bosnia-Hercegovina. Before leaving for Sweden, he had been living in Gora. In June 1993 the village was attacked by the Bosnian army. Soldiers searched his family's home on three occasions and took their money and valuables. They also threatened to kill the family members unless they left their home. As a consequence, the applicant decided to leave Bosnia-Hercegovina. The applicant held also a Croatian passport but maintained that he could not be considered as a citizen of Croatia, as the passport did not entitle him to any civic rights in that country. Allegedly, if sent to Croatia, he would be expelled to Bosnia-Hercegovina. Thus, he was very much afraid of being sent to Croatia.
On 6 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. Due to the prevailing situation in Bosnia-Hercegovina, he could not be deported to that country. Consequently, in assessing his application, the question was whether he could be afforded protection in Croatia. The Board noted that, according to available information, persons in the applicant's situation did not risk to be sent from Croatia to Bosnia-Hercegovina against their will. Further, there was no reason to assume that Croatia would not afford the applicant the same protection as other Croatian citizens. Finally, the general situation in Croatia did not constitute a ground for granting him asylum.
The applicant appealed to the Aliens Appeals Board (Utlänningsnämnden). He claimed that he had deserted from the Bosnian-Croatian army and that, if deported to Croatia, he could be forced to serve in that army in Bosnia-Hercegovina.
On 15 March 1995 the Appeals Board rejected the appeal. It shared the opinion of the Immigration Board and added that there was no apparent risk that Croatian citizens would be forced to take part in armed conflict.
The applicant later requested a temporary residence permit in Sweden. By a decision of 8 June 1995 the Appeals Board granted the applicant such a 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 30 October 1995 the applicant submitted a new application for a residence permit. He referred to his previous statements. Further, at an oral hearing on 14 May 1997 he claimed that he would not be allowed to stay in Croatia and that he could not return to his Muslim-dominated home district in Bosnia-Hercegovina.
On 17 July 1997 the Immigration Board rejected the applicant's new application and ordered his deportation to Croatia. Having regard to guiding decisions taken by the Swedish Government, the Board found that the applicant could not be sent back to Bosnia-Hercegovina. With regard to the possible deportation to Croatia, the Board noted that no circumstances had been invoked by the applicant which could lead to the conclusion that he was unable to go to Croatia. Consequently, the Board reiterated the conclusions drawn in the previous decisions taken concerning the applicant.
The applicant appealed to the Aliens Appeals Board. In addition to what he had previously stated, he referred to the time he had spent in Sweden. Having adjusted to Swedish society, he claimed that he should be given a residence permit for humanitarian reasons. On 2 February 1998 the Appeals Board upheld the Immigration Board's decision.
Later, the applicant submitted another application to the Appeals Board. He invoked a medical certificate of 23 March 1998 according to which he suffered from a post-traumatic stress syndrome and had regular contacts with a psychiatric clinic in Karlskrona. Allegedly, he would not get the appropriate treatment for his mental problems in Croatia. On 21 April 1998 the Appeals Board rejected the new application.
In May 1998 the applicant made yet another application for a residence permit. He invoked a further medical certificate concerning his mental health. By decisions of 6 and 12 May 1998 the Appeals Board refused to suspend the enforcement of the deportation order and on 12 November 1998 it rejected the application.
In medical certificates issued by the psychiatric clinic at the hospital in Karlskrona on 30 November 1998 and 19 January 1999 chief physician G.S. and therapist I.S. stated that the applicant had undergone treatment for some time at the clinic for a post-traumatic stress syndrome. Allegedly, the enforcement of the deportation order would seriously impair his mental state and could lead to a suicide attempt. The clinic submitted the first certificate to the Appeals Board and requested that the enforcement be suspended.
By a decision of 9 December 1998 the Appeals Board suspended the enforcement of the deportation order for an unspecified period of time.
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).
The Court recalls that the Swedish Government issued guidelines for the assessment of asylum applications submitted by persons holding both Bosnian and Croatian citizenship. The Government found that, due to the situation in Bosnia-Hercegovina, these persons could not be sent back to that country. The crucial question was thus whether they could be afforded protection in Croatia. 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 double nationality in 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 Croatia. The authorities took into account not only the general situation in Croatia 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. Moreover, by the decision of 9 December 1998 the Aliens Appeals Board suspended the enforcement of the applicant's deportation on account of his mental health.
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 Croatia. Apparently, the applicant holds Croatian citizenship. Having regard to the applicant's statements, the Court cannot find any indication that he will be subjected to ill-treatment in that country. Further, it has not been established that he is at risk of being sent from Croatia to Bosnia-Hercegovina. 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 of the Convention if deported to Croatia.
However, without making a special reference in his complaint, the applicant has submitted medical certificates showing that he is suffering from a post-traumatic stress syndrome and that the enforcement of the deportation order could seriously affect his mental health. 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). Nevertheless, the Court does not find it necessary to decide whether, in the circumstances, the deportation of the applicant would involve such hardship for him that it would fall within the scope of Article 3, as the Aliens Appeals Board, on 9 December 1998, suspended the deportation, obviously due to the information given in the medical certificate submitted to the Board. It thus appears that the applicant, in his present state of health, will not be deported.
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
45923/99 - -
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