FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 61367/00 by Vehbi HYSENI against Sweden

The European Court of Human Rights (First Section) , sitting on 24 October 2000 as a Chamber composed of

Mrs W. Thomassen , President , Mrs E. Palm, Mr Gaukur Jörundsson , Mr R. Türmen , Mr C. Bîrsan , Mr J. Casadevall , Mr R. Maruste , judges , and Mr M. O’Boyle, Section Registrar ,

Having regard to the above application introduced on 10 August 2000 and registered on 2 October 2000,

Having deliberated, decides as follows:

THE FACTS

The applicant is a Yugoslavian national, born in 1969 and living in Örebro , Sweden. He is from the province of Kosovo and he is an ethnic Albanian.

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

A. The circumstances of the case

On 29 December 1993 the Svea Court of Appeal ( Svea hovrätt ) convicted the applicant for attempted murder and sentenced him to six years' imprisonment. In addition the court ordered his expulsion from Sweden and issued a prohibition on his return.

The Supreme Court ( H ö gsta domstolen ) later granted the re-opening of the case. By judgment of 30 November 1994 the Court of Appeal set aside the previous prison sentence and, instead, ordered the applicant to undergo compulsory psychiatric treatment. The duration of this confinement was subject to medical evaluation. However, the expulsion order was not reversed.

The applicant was released ( utskriven ) from the psychiatric unit on 22 February 1999. On 6 May 1999 he was granted a temporary residence permit due to the prevailing situation in Kosovo . It expired on 5 November 1999. On 9 March 2000 the Government refused the applicant's request for the abrogation of the expulsion order. On 28 March 2000 the District Court ( tingsr ä tten ) of Hallsberg convicted him of serious assault, again with an order of confinement in a psychiatric unit, the duration of which was subject to medical evaluation. It does not appear from the applicant's submissions whether he appealed against the judgment.

After these events the applicant lodged a new application with the Government for the abrogation of the expulsion order. By decision of 27 July 2000 the Government rejected his request. In that decision the Government stated as follows.

(Translation)

“According to Chapter 7 Section 16 of the Aliens Act ( utlä nningslagen, 1989:529) the Government may abrogate a court's expulsion order in consequence of an offence or grant a temporary residence or work permit, if the expulsion order cannot be executed or if there are other particular reasons.

[the applicant] is from the province of Kosovo in the Federal Republic of Yugoslavia and he is an ethnic Albanian. Having regard to the changed situation in Kosovo there are presently no reasons to grant a new temporary residence and work permit. The mere fact that a person is of Albanian ethnicity no longer constitutes a need for protection in this country.

The Government have in previous decisions, the latest taken on 9 March 2000, not found any reasons to abrogate the expulsion order in question. The Government do not make any other conclusion this time.  Nor are there any other reasons for granting a residence permit. Consequently, [the applicant’s] request shall be rejected.”

It appears that the applicant is still undergoing compulsory psychiatric treatment. In a medical certificate issued at the relevant psychiatric unit in Örebro on 7 September 2000 a chief physician stated that the applicant was diagnosed as paranoid schizophrenic after a forensic mental examination. The applicant is treated with medicine ( depotneuroleptika ).

B. Relevant domestic law

Under Section 17 of the Forensic Psychiatric Care Act ( Lagen om r ä ttspsykiatrisk vård , 1991:1129 ), an expulsion order of a person confined in a psychiatric unit can be executed at the request of the competent police authority. This presupposes, however, that the chief physician finds that the individual's condition allows that the deportation takes place. The compulsory psychiatric treatment is terminated when the deportation is executed. Moreover, if the deportation cannot take place the police are obliged under Section 8 Article 13 of the Aliens Act ( Utlä nningslagen, 1989 :5 29) to notify the National Immigration Board which may decide to stay the enforcement until further notice.

COMPLAINT

The applicant complains that his request for the abrogation of the expulsion order was rejected. He argues that he is unable to take care of himself due to his mental illness. Furthermore, he claims that he will not be treated for his mental illness in Kosovo due to lack of medicine and other medical resources. The applicant does not invoke any particular provision of the Convention but he refers to Article 25 of the Universal Declaration of Human Rights.

THE LAW

The applicant complains that his request for the abrogation of the expulsion order was rejected. He does not invoke any particular Article of the Convention.

The Court finds that the present application should be examined 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 at the outset 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. It also notes the gravity of the offence committed by the applicant. 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. Also, the deportation of an alien may be contrary to the standards of Article 3 on account of his or her medical condition (see, among other authorities, D v. the United Kingdom judgment of 2 May 1997, Reports of Judgments and Decisions 1997-III, §§ 46-54).

In the present case, the Court recalls that the Swedish authorities have ordered the deportation of the applicant, an ethnic Albanian. It appears that he would be deported to his home province of Kosovo . The applicant has not claimed that he would be subjected to ill­treatment there and the Court cannot find any such indication. As regards the applicant’s mental problems it is to be noted that as long as the applicant is confined in a psychiatric unit the deportation could under no circumstances take place without the permission of the chief physician responsible for his care. 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 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, nor is there any indication that the deportation would be contrary to any other provision of the Convention or its Protocols.

It follows that the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

Michael O’Boyle Wilhelmina Thomassen Registrar President