Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 21056/92

by Mats CASSEGÅRD

against Sweden

The European Commission of Human Rights sitting in private on

29 November 1993, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

G.B. REFFI

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

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 15 September 1992

by Mats CASSEGÃ…RD against Sweden and registered on 11 December 1992

under file No. 21056/92;

Having regard to the observations submitted by the respondent

Government on 4 June and 14 September 1993 and the observations in

reply submitted by the applicant on 19 August 1993;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Swedish citizen, born in 1965 and resident at

Nässjö, Sweden. He is at present detained at the Mariefred Prison

(Kriminalvårdsanstalten Mariefred). He is represented by Mr. Lars G.

Mattson and Mr. Niclas Forsberg, lawyers in Stockholm.

The facts of the present case, as submitted by the parties, may

be summarised as follows.

Particular circumstances of the case

On 10 May 1991 the applicant was convicted by the District Court

(tingsrätten) of Eksjö of a number of offences, including arson and

aggravated theft, and was sentenced to four years and six months'

imprisonment.

The judgment was upheld by the Göta Court of Appeal (hovrätten)

on 3 July 1991. Leave to appeal was refused by the Supreme Court

(Högsta domstolen) on 23 August 1991.

The applicant had been detained on remand as of 19 March 1991.

After the conviction and sentence had acquired legal force he was

placed in the Mariefred Prison.

In September 1991 the applicant was granted a guarded short-term

leave to visit his mother in the hospital at Nässjö. The mother

suffered from cancer. The applicant spent about four hours with his

mother.

In November 1991 the applicant again requested leave to visit his

mother. This request was granted on 27 November 1991 on the terms that

the applicant would be transferred provisionally from the Mariefred

Prison to the Detention Centre (häktet) at Värnamo, from where he would

be able to have guarded short-term leave to visit his mother in the

hospital. The distance between Värnamo and Nässjö is less than 100

kilometres.

On the same day, however, the applicant withdrew his request,

since he could not accept being guarded by staff of the Detention

Centre.

Subsequently, however, the applicant was granted short-term leave

with guards from the Mariefred Prison. He then visited his mother on

2 December 1991, spending about three hours with her. The distance

between the Mariefred Prison and the hospital at Nässjö is about 300

kilometres.

On 23 December 1991 the applicant requested that he be granted

leave to visit his mother on 13 January 1992 on the same terms as those

on which his second leave had been granted. This request was refused

by the Prison Governor on 9 January 1992.

On 14 January 1992 the applicant appealed against this decision

to the National Prisons and Probations Administration (Kriminal-

vårdsstyrelsen), which on 21 January 1992 rejected the appeal. In its

decision the Administration stated as follows:

(translation)

"The Administration has been informed by the Prison about

the following. [The applicant] was granted leave in

December 1991 to visit his mother. The Prison is regularly

in touch with the doctor who is responsible for the

treatment of [the applicant's] mother. According to this

doctor the mother's state of health is stable. Naturally

[the applicant] will be granted further leave in case his

mother's state of health should deteriorate.

In the present circumstances there is no special reason to

grant [the applicant] leave."

The applicant was orally informed of the decision on 21 January

1992. The time when the applicant appealed against this decision is in

dispute between the parties. The applicant submits that he placed the

appeal in the letter-box of the prison on 21 January 1992, while the

Government contest that this was done before 22 January 1992 and state

that the applicant might in fact have delayed the transmission of the

appeal until some time later. The appeal was dated 22 January 1992.

According to Swedish procedural law the applicant should have

sent his appeal to the National Prisons and Probations Administration,

whose task it was to examine whether the appeal had been lodged within

the applicable time-limit. However, the applicant sent the appeal to

the Administrative Court of Appeal (kammarrätten) of Jönköping.

On 24 January 1992 the applicant's mother was discharged from the

hospital and on 2 February 1992 she was re-admitted.

On 3 February 1992 the Administrative Court of Appeal received

the appeal and sent it to the National Prisons and Probations

Administration for an examination of whether it had been lodged in

time.

On 4 February 1992 the National Prisons and Probations

Administration received the appeal. On the same day it attempted to

obtain information concerning the applicant's mother's state of health.

She died, however, on 5 February 1992 before such information could be

procured.

On 13 February 1992 the applicant, having been granted leave,

attended his mother's funeral.

On 2 March 1992 the applicant requested that his appeal should

be examined. On 6 March 1992 the National Prisons and Probations

Administration re-examined the matter and decided that no further

action was called for.

On 15 April 1992 the National Prisons and Probations

Administration, after the applicant had again requested an examination

of his appeal, forwarded the case-file to the Administrative Court of

Appeal. On 24 April 1992 the Court decided that, in view of the

applicant's mother's death, his application for leave no longer had any

purpose and that his appeal therefore did not require any decision by

the Court.

On 11 May 1992 the applicant lodged a further appeal with the

Supreme Administrative Court (Regeringsrätten). On 7 July 1992 the

Supreme Administrative Court decided not to grant leave to appeal.

The applicant also complained to the Parliamentary Ombudsmen

(Riksdagens justitieombudsmän) about the manner in which the

authorities had dealt with his request for leave, but on 4 August 1992

the competent Ombudsman decided not to take any action.

The inmates of the Mariefred Prison can leave their outgoing

correspondence in a letter-box which is emptied every morning. The mail

leaves the prison every weekday at around 4.00 p.m. The mail is not

registered by prison staff.

Relevant domestic law

Provisions concerning the treatment of prisoners are found in the

1974 Act on Correctional Treatment in Institutions (lag 1974:203 om

kriminalvård i anstalt) and the 1974 Decree containing Certain

Regulations regarding the Implementation of the Act on Correctional

Treatment in Institutions (förordning 1974:248 om kriminalvård i

anstalt). The National Prisons and Probation Administration has issued

more detailed provisions (anstaltsföreskrifter) in accordance with the

Decree. General advice (allmänna råd) concerning leave has also been

issued.

Section 9 of the 1974 Act provides that prisoners shall be

treated with respect for their human dignity and with understanding for

the special difficulties connected with imprisonment.

A prisoner may be granted short-term leave in order to facilitate

his or her adjustment in the community, provided that there is no

manifest danger of continued criminal activity or considerable danger

that the leave be misused. Short-term leave may also be granted for

other special reasons (Section 32, subsections 1 and 2).

Short-term leave may be made subject to such conditions as

considered necessary, for instance concerning the place where the leave

shall be spent. If close supervision is called for, it may be

stipulated that the prisoner shall be placed under surveillance during

the leave (Section 32, subsection 4).

According to Government Bill 1978/79:62 (pp. 20 et seq.),

short-term leave for special reasons should not be granted unless it

fulfils an essential purpose which cannot be achieved in any other way.

Under Section 12 of the 1974 Decree a prisoner who has been

sentenced to a minimum of two years' imprisonment shall not, unless

there are special reasons, be granted short-term leave in accordance

with Section 32 para. 1 of the Act prior to having served six months

of his imprisonment, including any time spent in detention on remand.

According to Section 106 of the provisions issued by the National

Prisons and Probations Administration, short-term leave may be granted

in order to enable an inmate to take care of a matter outside the

institution, if the matter is of essential importance to him and cannot

be taken care of during regular leave or in any other way. Such

special leave may be granted to enable an inmate to visit someone close

to him who is seriously ill or to attend the funeral of such a person.

Special leave shall not be permitted for any longer time than necessary

in order to fulfil its purpose. There are no provisions or established

practice concerning how often a prison inmate should be allowed such

special leave.

COMPLAINT

The applicant complains of a violation of Article 3 of the

Convention in that he was not allowed to visit his mother before she

died on 5 February 1992. He refers, in particular, to the European

Prison Rules, a Recommendation adopted by the Committee of Ministers

of the Council of Europe in 1987. Under para. 49, subpara. 2, of these

Rules a prisoner shall be informed at once of the serious illness of

a near relative. In such cases and "whenever circumstances allow" the

prisoner should be authorised to visit the relative either under escort

or alone.

The applicant further refers to notes by hospital staff showing

that, before refusing the applicant's leave request on 9 January 1992,

the Prison Governor did not verify the state of health of the

applicant's mother. This was only done on 10 January 1992. Although

at that time the mother's condition had been stable, she continued to

be seriously ill.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 15 September 1992 and

registered on 11 December 1992.

On 29 March 1993 the Commission decided to bring the application

to the notice of the respondent Government and to invite them to submit

written observations on its admissibility and merits.

The Government submitted observations on admissibility and merits

on 4 June and 14 September 1993. The applicant's observations in reply

were submitted on 19 August 1993.

THE LAW

The applicant complains of a violation of Article 3 (Art. 3) of

the Convention in that his third request for short-term leave in order

to visit his dying mother was refused.

Article 3 (Art. 3) of the Convention provides as follows:

"No one shall be subjected to torture or to inhuman or degrading

treatment or punishment."

The Government submit that, in so far as the applicant alleges

a violation of Article 3 (Art. 3), his application should be considered

incompatible ratione materiae with the provisions of the Convention.

The Government further address the question whether the

applicant's complaint may be considered under Article 8 (Art. 8) of the

Convention, which 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."

Should the application be examined under Article 8 (Art. 8), the

Government recall that the applicant is an adult who presumably left

his mother's home years ago. It could therefore be questioned whether

his relationship with his mother at the relevant time was such as to

fall within the field of "family life" protected by Article 8 para. 1

(Art. 8-1). Considering that the detention of the applicant is as such

compatible with Article 5 para. 1 (a) (Art. 5-1-a) of the Convention,

it could also be questioned whether the applicant had any right under

the Convention to visit his mother.

The Government contend that, in any case, the application is

manifestly ill-founded. The interference with the applicant's possible

right under Article 8 (Art. 8) was in accordance with the law. His

possibilities to maintain and develop his relationship with his mother

by means of visiting her while she was in hospital were necessarily

affected by his prison sentence, which pursued the interests of public

safety and was aimed at the prevention of disorder or crime, as well

as the protection of the rights of others. Since the refusal of the

applicant's request for a third leave in fact served to enforce his

prison sentence, the same legitimate aims justified that refusal.

The Government argue that the measure in question was

proportionate to the aims pursued. They recall that, although at the

time of his third leave request he had only served some ten months of

his prison term, the applicant had already been allowed to visit his

mother twice. It is recalled that, as he had been dissatisfied with the

arrangements of the first visit, the applicant was granted

exceptionally favourable treatment during his second leave. Moreover,

between 9 January and the death of the applicant's mother the prison

authorities did not receive any information from the hospital staff,

the applicant himself or any of his relatives about his mother's re-

admission or critical state of health. At least four staff members of

the Mariefred Prison were in contact with the hospital during her

hospitalisation. On 10 January 1992 one of the doctors had informed the

Prison Governor that the applicant's mother's health had not

deteriorated in any acute way. Had the prison received information to

the contrary, short-term leave could have been granted immediately.

The Government furthermore question the date of the applicant's

appeal to the Administrative Court of Appeal. They point out that,

although the appeal was allegedly lodged on 21 January 1992, it was

dated 22 January 1992.

In the above circumstances the Government contend that the

authorities did not transgress the margin of appreciation allowed by

Article 8 para. 2 (Art. 8-2) of the Convention.

The applicant submits that there did exist family life between

him and his mother despite the fact that they lived apart. The National

Prisons and Probations Administration had, on 21 January 1992,

considered that the applicant was to be granted further leave, should

his mother's condition deteriorate. The Administration thereby

considered whether such leave could be harmful to other persons and

society and answered this question in the negative. The fact that the

applicant was not dangerous is supported by the fact that he had

already been granted leave on two occasions, the second leave having

been granted on exceptional terms.

The applicant recalls that, according to the decision of 21

January 1992, the Mariefred Prison was to be in regular contact with

the doctor in charge of the care of the applicant's mother. It

appears, however, from the hospital notes that there was no such

regular contact.

The applicant states that he appealed against the decision of 21

January 1992 on the same day by placing his letter in the relevant box

for this purpose.

The applicant finally contends that he did inform the prison

administration of his mother's re-admission to hospital. No further

information regarding her state of health was, however, obtained by the

prison.

The Commission does not consider that the present case discloses

any appearance of a violation of Article 3 (Art. 3) of the Convention.

The matter of which complaint is made does not amount to the kind of

severe ill-treatment proscribed by this provision.

However, the Commission is of the opinion that the applicant's

right to respect for his family life is at issue and that, therefore,

Article 8 (Art. 8) of the Convention is applicable to the applicant's

complaint about the refusal of short-term leave to make a third visit

to his mother in hospital.

The Commission recalls that the notion of 'respect' enshrined in

Article 8 (Art. 8) is not clear-cut. This is the case especially where

the positive obligations implicit in that concept are concerned. Its

requirements will vary considerably from case to case according to the

practices followed and the situations obtaining in the Contracting

States. In determinating whether or not such an obligation exists,

regard must be had to the fair balance that has to be struck between

the general interest and the interests of the individual as well as to

the margin of appreciation afforded to the Contracting States (Eur.

Court H.R., B. v. France judgment of 25 March 1992, Series A no. 232-C,

pp. 47 et seq., paras. 44 et seq.).

In the present case the Commission must strike a balance between

the general interest in ensuring execution of punishment and the

applicant's individual interest in visiting a parent in a critical

state of health.

The Commission first observes that the applicant was serving a

prison sentence of four years and six months for, inter alia, arson and

aggravated theft. Nevertheless, he had been granted leave to see his

mother in hospital in September and December 1991, the last-mentioned

leave on exceptionally favourable terms in that he had been guarded by

staff of the Mariefred Prison, having refused the offer to be

transferred to the Detention Centre at Värnamo.

The Commission next observes that in his third leave request the

applicant demanded that he again be guarded by staff from the Mariefred

Prison despite the considerable distance between that prison and the

hospital where his mother was staying. This would undoubtedly have put

an additional burden on the prison staff and there might well have been

considerable practical problems connected with such arrangements.

The Commission further notes that the Prison Governor, when

considering the applicant's third request on 9 January 1992, did not

have at his disposal any information regarding a deterioration of the

applicant's mother's state of health. Nor was any such information

available to the National Prisons and Probations Administration, when

it decided on the applicant's appeal on 21 January 1992. It is

explicitly stated in the decision of that authority that, according to

information received from the doctor in charge, the mother's state of

health was stable and that, should it deteriorate, the applicant would

be granted leave. The Commission notes in this regard that the mother

was in fact discharged from the hospital on 24 January 1992 and that

the prison authorities were apparently not informed of her subsequent

re-admission on 2 February 1992.

Regarding the fact that the applicant's appeal against the

decision of 21 January 1992 to refuse further leave could only be

examined after the death of his mother, it has not been established why

his appeal dated 22 January 1992 did not arrive at the Administrative

Court of Appeal until 3 February 1992. There is no indication, however,

that the prison authorities delayed its transmission.

Having regard to these various elements, the Commission finds

that a fair balance was struck between the conflicting interests at

stake in the present case. It considers that the competent authorities

of the respondent State did not transgress their margin of appreciation

in refusing the applicant's third leave request. The Commission

concludes that there has been no lack of respect for the applicant's

family life, and that, therefore, the application discloses no

appearance of a violation of Article 8 (Art. 8) of the Convention.

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, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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CASSEGÅRD v. SWEDEN

CASSEGÅRD v. SWEDEN

LEXI