FIRST SECTION

DECISION

Application no. 54263/00 by Saad ALEGELI against Sweden

The European Court of Human Rights, sitting on 10 July 2001 as a Chamber composed of

Mr L. Ferrari Bravo , President , Mrs E. Palm , Mr Gaukur Jörundsson , Mr R. Türmen , Mr C. Bîrsan , Mr T. Panţîru ,

Mr R. Maruste , judges , and Mr. O’Boyle , Section Registrar .

Having regard to the above application introduced on 21 January 2000 and registered on 24 January 2000,

Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACT S

The applicant, Saad Alegeli, is an Iraqi national, born in 1957 and living in Sweden. He is represented before the Court by Ms E. L. Sederholm, a lawyer practising in Stockholm. The respondent Government are represented by Ms I. Kalmerborn, Ministry for Foreign Affairs.

The facts of the case, as submitted by the parties, may be summarised as follows.

On 1 November 1998 the applicant, leaving his wife and two children, left Iraq. On 16 November 1998 he arrived in Austria where he applied for asylum under a different name. These asylum proceedings were suspended on 2 February 1999.

On 17 January 1999 the applicant entered Sweden without any identity papers and made an application to the Immigration Board ( Statens invandrarverk ) for refugee status, residence permit and work permit. He claimed inter alia that, by reason of being a Shiah muslim and an alleged Communist, he was exposed to political and religious persecution in Iraq.  Being unable to obtain employment he had been forced to do military service for fourteen years. After his brother, who was a communist, left Iraq to obtain asylum in Sweden in 1996, he was subjected to ill-treatment, detention and house searches. The entry report indicated that he was healthy.

The Board contacted the Austrian authorities, which informed about the applicant’s asylum application in Austria and their willingness to take him back in order to examine the application.

On 12 September 1999 the Immigration Board rejected the applicant’s requests and refused him entry into Sweden. It ordered his immediate deportation.  The Board considered that the asylum matter should be examined in Austria in accordance with the provisions of the Dublin Convention (the Convention determining the State responsible for examining applications for asylum lodged in one of the Member States of the European Communities, 15 June 1990), which provides for measures to ensure that applicants for asylum have their applications examined by one of the Member States and that applicants for asylum are not referred successively from one Member State to another.

The deportation, scheduled for 6 October 1999, was cancelled, as the applicant had become severely ill. On 2 October 1999 he had been committed to Löwenströmska Hospital. A medical certificate of 8 October 1999 stated that he was depressive and showed strong anxiety, disquietude and concentration difficulties. He was worried for his wife and children who remained in Iraq, was brooding and reproaching himself. For several months he had been contemplating suicide. He was in particular need of psychosocial support, with which his brother and family could assist him. No signs of psychosis could be detected, though there was a considerable risk of his committing suicide.

From 16 to 20 October 1999 the applicant was compulsorily committed to the Hospital, where he stayed until the beginning of January 2000.

According to a further certificate of 21 October 1999, the applicant was suffering from a severe depression with psychotic symptoms and had expressed plans to commit suicide. Considering his distorted perceptions of reality, there would be a clear risk of his developing a psychosis if subjected to additional pressures, for instance as a result of expulsion to another country. If he were to be expelled, the risk of suicide would become considerable. Information provided by the brother suggested that already at the age of 14 or 15 the applicant had suffered from a serious mental disturbance.

A certificate of 26 November 1999 stated that the applicant had recalled many morbid experiences during his many years in the Iraqi army, from 1981 to 1996, and had made detailed accounts of how he and his family would be tortured if he were to return to Iraq. He had been hospitalised the first time at the age of 15 and his mental condition had deteriorated during the years of his military service. While hospitalised in Sweden the applicant had been on a visit to his brother’s family, which had been difficult to arrange because of his anxiety and reactions to the slightest sound. Further attempts to arrange for visits had failed. The medical treatment had only lead to marginal improvements and the expulsion risk constituted an impediment to further improvement. There was nothing to indicate that the applicant was manipulating his environment or that his condition was not genuine. Expulsion might cause the applicant to commit self-destructive acts.

On 17 January 2000, on an appeal by the applicant, the Aliens Appeals Board ( Utlänningsnämnden ) quashed the Immigration Board’s decision of 12 September 1999 in so far as concerned the deportation order but (by a majority) upheld the remainder of its decision. It was established that if returned to Austria he would enjoy protection against being sent to another State not providing a corresponding protection and that he would receive adequate care. His health condition was not such as to render his expulsion incompatible with Article 3 of the Convention. Nor were there any humanitarian considerations warranting that Sweden refrain from applying the Dublin Convention. Before expulsion, the Austrian authorities should be informed about the applicant’s mental health condition.

On 26 January 2000, in accordance with an indication by the Court to the Swedish authorities, under Rule 39 of the Rules of Court, the Immigration Board decided to stay the execution of the refusal-of-entry order with respect to the applicant.

In April and May 2000 the applicant was examined by the Centre for Torture and Trauma Survivors ( Centrum för Tortyr- och Traumaskade, Diagnosstik, prevention behandling, rehabilitering - “the CTD”). A report by a specialist in forensic medicine observed that the applicant had recounted his experience of torture, consisting of assault by mainly blunt objects but also in some instances by sharp objects, as well as electroshock. He showed two scars, one to his head and another to his wrist and gave detailed accounts of their origin. According to the relevant psychiatrist report it appeared that, being a Shiah muslim and having a brother whom had communist sympathies, the applicant belonged to an exposed group. He was ill-treated at school and, as a teenager, for a few years withdrew and pursued psychiatric treatment. From 1981 to 1996 he served in the army. After his brother fled the country, the security police regularly harassed the family; he was arrested many times, ill-treated and tortured and was threatened to death, including execution. He was deemed severely ill, suffering from posttraumatic stress syndrome.  He was undergoing anti-depressive treatment and had great difficulties because of nightmares and suicidal thoughts, fearing that he might be expelled to Austria and the uncertainty concerning the situation of his wife and children.

A further CTD certificate of 14 September 2000 stated that the applicant was in very great need of psychiatric health care and that it was likely that he would need many years of treatment on a specialist ward with particular expertise, both theoretical and practical, in dealing with post traumatic stress syndrome. It was important for patients suffering from the kind of condition that relatives in which they have confidence be available, the absence of which could in itself constitute a major stress factor. There was a great risk that the applicant’s already serious illness would worsen to the point of becoming irreversible and that all those various social, mental and physical disabilities that followed from chronic stress would become permanent.

On 2 April 2001 the applicant was committed to St Görans Hospital, which, in a psychiatric statement of 26 April 2001, observed that he was in a helpless condition. He arrived at the examination with assistants from the psychiatric ward, as he was unable to retain nutrition without throwing up food, drinks and medicines. It was particularly difficult to examine him. All he was able to say was that he would injure himself. He had strong and painful headache and somatic symptoms showing strong anxiety. Otherwise it was not possible to get any sense out of him. His condition was therefore worse in comparison with previous examinations, the conclusions of which still stood.

On 18 May 2001 the Aliens Appeals Board granted the applicant a permanent residence permit, finding that there were such strong humanitarian reasons as to justify not applying the Dublin Convention. The Board observed that, while the applicant would receive adequate care in Austria were he to stay in that country, the new medical reports together with the previous ones suggested that that there was a considerable risk that his health would be seriously impaired should he be forced to leave. Against this background it would be contrary to humanitarian requirements to execute the decision refusing him entry to Sweden, which decision was therefore to be repealed. The Board’s review did not concern whether the grounds for the applicant’s asylum request were fulfilled, which, under the Dublin Convention, would have to be examined by Austrian authorities.

COMPLAINTS

The applicant complained that if he were to be expelled from Sweden to Austria his mental health, which was already very poor, would seriously deteriorate. It would aggravate his depression or develop a psychosis, which, according to the medical certificates, was imminent. Such a development would give rise to a violation of Article 3 of the Convention.

THE LAW

By a letter of 23 May 2001, the Government informed the Registrar of the following:

“On 2 May 2001, the applicant filed a new application with the Aliens Appeals Board in accordance with the rules laid down in Chapter 2, Section 5 b of the Aliens Act. On 18 May, the Aliens Appeals Board decided to revoke the deportation order and to grant the applicant a permanent residence permit in Sweden. The decision cannot be appealed. Since the applicant can no longer be removed to Austria, the ground for his application to the Court has ceased to exist.”

On 2 June 2001, the applicant informed the Section Registrar that he wished to withdraw his application, referring to the fact that, following his new request to the Aliens Appeals Board, he had been granted permanent residence in Sweden.

Against this background the Court is satisfied that the matter has been solved for the purposes of Article 37 § 1(b) of the Convention. In addition, it discerns no reason of ordre public (public order) for continuing the proceedings (Article 37 § 1 in fine of the Convention).

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

Michael O’Boyle Luigi Ferrari Bravo Registrar President