Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 15576/89

by Hector CRUZ VARAS and his family

against Sweden

The European Commission of Human Rights sitting in private

on 7 December 1989, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A. WEITZEL

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

Mrs. G.H. THUNE

Sir Basil HALL

MM. C.L. ROZAKIS

L. LOUCAIDES

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 5 October 1989

by Hector Cruz Varas and his family against Sweden and registered

on 5 October 1989 under file No. 15576/89;

Having regard to the reports provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having regard to the Government's written submissions dated 16

and 27 October, 22 and 28 November 1989 and the applicants' written

submissions dated 3 and 30 November 1989 as well as the parties' oral

submissions at the hearing on 7 December 1989;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case as they appear from the parties'

submissions may be summarised as follows.

The applicants are Hector Cruz Varas born in 1948, Magaly

Maritza Bustamento Lazo born in 1965 and Richard Cruz born in 1985.

They are Chilean citizens. The first applicant has been deported to

Chile and the second and third applicants are in hiding in Sweden.

The applicants are represented before the Commission by Mr. Peter

Bergquist, a lawyer practising in Stockholm.

In January 1987 the first applicant entered Sweden. On

5 June 1987 the second and third applicants came to Sweden.

On 21 April 1988 the National Immigration Board (statens

invandrarverk) decided to expel the applicants. On 29 September 1988

the applicants' appeal was rejected by the Government.

Before the Police Authority at Varberg the applicants alleged

that there were obstacles against the enforcement of the expulsion

order and requested that their case be transferred to the Immigration

Board. This request was refused on 21 October 1988. The applicants'

appeal was rejected by the Immigration Board on 26 October 1988. On

27 October 1988 the applicants again requested that their case be

transferred to the Immigration Board. On 28 October 1988 the Police

Authority refused this request, and the applicants' appeal was

rejected by the Board on the same day.

On 28 January 1989 the applicants again alleged that there

were obstacles against the enforcement of the expulsion order. The

first applicant alleged inter alia that he had been tortured and

sexually abused on several occasions in Chile. The allegations were

submitted to the Police Authority at Varberg. On 13 January 1989 the

Police Authority transferred the case to the Immigration Board which

in an opinion of 8 March 1989, while transferring the case to the

Government, considered that there were no obstacles againt the enforcement.

Before the Government, the first applicant invoked in

particular two medical certificates, one of which was issued on

9 May 1989 by Dr. Sten W. Jakobsson. In his certificate Dr. Jakobsson

states, in summary, that "nothing has been established which

contradicts the assumption that Hector Cruz Varas has been subjected

to such torture and sexual abuse as he alleges."

On 4 October 1989 the first applicant was taken into custody

by the Police Authority of Varberg following a decision by the

Minister of Labour.

On 5 October 1989 the Government (Ministry of Labour) found

that there were no obstacles against the enforcement of the expulsion

of the first applicant and his family.

After the introduction of the present application and the

Commission's indication to the respondent Government that it was

desirable not to deport the applicants until the Commission had had a

further opportunity to examine the application, the National Immigration

Board decided on 6 October 1989 not to stop the enforcement of the

expulsion order.

On the same day the first applicant was expelled to Chile. The

second and third applicants went into hiding in Sweden.

The Government sumbit that, following his removal to Chile,

the first applicant has not been the object of any attention by the

Chilean authorities and lives in his home at Villa Alemana in Chile.

The applicants submit, through their counsel, that Mr. Cruz Varas has

fled to Argentina where he is now staying.

COMPLAINTS

1. The first applicant alleges a violation of Article 3 of the

Convention on the ground that his expulsion to Chile involved a risk

that he would be tortured in the way he had been tortured before; in

any case the torture to which he had been subjected constituted such

a trauma that his forced return to Chile amounted to inhuman treatment.

2. The three applicants allege that the expulsion of the third

applicant would involve a violation of Article 3 of the Convention, in

that the son would suffer from the expulsion.

3. The applicants allege that the separation of the family by the

expulsion violated Article 8 of the Convention.

4. The applicants further allege that the examination of their

request for a residence permit in Sweden involved a determination of

a civil right and that they were therefore entitled to a procedure

meeting the requirements of Article 6 para. 1 of the Convention.

5. The applicants also allege a violation of Article 13 of

the Convention on the ground that the procedure before the National

Immigration Board and the Government did not fulfil the requirements of

that provision.

6. Finally, the applicants allege that the failure of Sweden to

comply with the Commission's indication under Rule 36 of its Rules of

Procedure violated the applicants' right to petition the Commission

which is guaranteed by Article 25 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 5 October 1989 and

registered on the same day.

On 6 October 1989, at 09.00 hours, the Commission decided to

communicate the application to the respondent Government and invite

them to submit written observations on the admissibility and merits of

the application limited to the issue under Article 3 of the Convention.

The Commission also decided, in accordance with Rule 36 of the

Commission's Rules of Procedure, to indicate to the Government that it

was desirable in the interest of the parties and the proper conduct of

the proceedings before the Commission not to deport the applicants to

Chile until the Commission had had an opportunity to examine the

application further.

The Agent of the Government was informed by telephone on the

same day, at 09.10 hours, of the Commission's decision. At 12.00 hours

the Commission confirmed the said indication by telefax.

By letter of 16 October 1989 the Government informed the

Commission that Mr. Cruz Varas had been expelled to Chile at 16.40 hours

on 6 October 1989. His family remained in Sweden.

The Government's further observations were received by letter

dated 27 October 1989 and the applicants' observations were dated

3 November 1989.

On 9 November 1989 the Commission decided to invite the

parties to a hearing on the admissibility and merits of the

application.

The Commission further decided, in accordance with Rule 36 of

its Rules of Procedure, to indicate to the Government that it was

desirable in the interest of the parties and the proper conduct of the

proceedings before the Commission not to deport the second and third

applicants to Chile and that the Government take measures which would

enable the first applicant to return to Sweden as soon as possible.

By letter of 22 November 1989 the Government informed the

Commission that they had transmitted the Commission's indication under

Rule 36 to the National Immigration Board.

On 28 November 1989 the Government submitted additional

written observations and the counsel for the applicants submitted

additional observations on 30 November 1989.

The hearing before the Commission took place on 7 December 1989.

The Government were represented by their Agent, Mr. Hans Corell,

Ambassador and Under-Secretary at the Ministry for Foreign Affairs,

as well as Mr. Erik Lempert, Permanent Under-Secretary at the Ministry

of Labour, and Mr. Pär Boquist, Legal Adviser at the Ministry for

Foreign Affairs, as advisers. The applicants were represented by their

counsel Mr. Peter Bergquist.

THE LAW

1. The applicants allege that the first applicant's removal to

Chile was in breach of Article 3 (Art. 3 ) of the Convention because

it exposed him to a real risk of torture or inhuman or degrading

treatment in that country. They also allege that Article 3 (Art. 3)

would be violated if the third applicant were to be expelled to Chile.

Article 3 (Art. 3) of the Convention reads:

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

degrading treatment or punishment."

The Government argue that this complaint is inadmissible for

failure to comply with the six months rule laid down in Article 26

(Art. 26) of the Convention insofar as it relates to any decision prior to

those of 5 and 6 October 1989. They further submit that the first

applicant has given various and varying information about his

political activities and the treatment to which he had allegedly

been subjected in Chile. The varying content of his accounts

adversely influences his credibility. Moreover, he has not been the

object of any particular attention by the Chilean authorities after

his return to Chile. He is now living in his home in Villa Alemana.

At the time of his expulsion there was no risk that he might be

subjected to treatment prohibited by Article 3 (Art. 3) of the

Convention if the expulsion was enforced. For these reasons, this

complaint should be rejected as being manifestly ill-founded.

The Commission considers that the relevant final decision for

the purposes of Article 26 (Art. 26) is the Government's decision of 5

October 1989 whereby they found that there were no obstacles against

the enforcement of the expulsion order to Chile concerning the

applicants. This complaint cannot therefore be declared inadmissible

for failure to comply with the six months rule laid down in Article 26

(Art. 26) of the Convention.

The Commission considers that the main issue is whether the

first applicant's expulsion to Chile violated Article 3 (Art. 3) of the

Convention on the ground that, at the time of the expulsion, there

existed substantial grounds for believing that he faced a real risk of

being treated contrary to Article 3 (Art. 3) in Chile. The Commission has

carried out a preliminary examination of this issue in the light of

the parties' submissions. It considers that the issue raises

questions of fact and law which are of such a complex nature that

their determination should depend on an examination of the merits.

This complaint cannot therefore be considered manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention and no other ground for declaring it inadmissible has been

established.

2. The applicants also allege that there has been a violation of

Article 8 (Art. 8) of the Convention on the ground that the applicants have

been separated as a result of the expulsion to Chile of the first

applicant whereas the other applicants are now hiding in Sweden.

Article 8 (Art. 8) of the Convention reads:

"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."

The Government submit that the splitting up of the family was

the result of the applicants' own actions for which the Government

cannot be held responsible. The authorities' intention was to expel

all the applicants at the same time. In any event, the Convention

does not protect the right of an alien to enter a certain country and

be granted asylum there, nor the right for a family to be united in

a State where no one in the family has a permit to remain. The

complaint is therefore incompatible ratione materiae or personae with

the Convention or manifestly ill-founded within the meaning of

Article 27 para. 2 (Art. 27-2) of the Convention.

The Commission considers that this complaint is closely

related to the first applicant's complaint under Article 3 (Art. 3).

It also raises questions of fact and law which are of such a complex

nature that their determination should depend on an examination of the

merits. It cannot therefore be considered manifestly ill-founded

within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

3. The applicants further complain that the examination of their

requests for a residence permit was a determination of their "civil

rights" and that they were entitled to a procedure satisfying Article 6

para. 1 (Art. 6-1) first sentence of the Convention, which reads:

"In the determination of his civil rights and obligations

..., everyone is entitled to a fair and public hearing

within a reasonable time by an independent and impartial

tribunal established by law."

The Commission has constantly held that a decision as to

whether an alien should be allowed to stay in a country is a

discretionary act of a public authority, which does not as such

involve a determination of the alien's "civil rights and obligations"

within the meaning of Article 6 para. 1 (Art. 6-1) (cf. e.g. No. 8118/77

Dec. 19.3.81, D.R. 25 p. 105). It finds no reason to depart from

this case-law in the present case.

Consequently, this complaint is incompatible ratione materiae

with the provisions of the Convention within the meaning of Article 27

para. 2 (Art. 27-2).

4. The applicants also allege a violation of Article 13 (Art. 13)

of the Convention on the ground that the procedure before the National

Immigration Board and the Government did not fulfil the requirements

of that provision. Article 13 (Art. 13) of the Convention reads:

"Everyone whose rights and freedoms as set forth in

this Convention are violated shall have an effective

remedy before a national authority notwithstanding that

the violation has been committed by persons acting in an

official capacity."

The question to be examined is whether in relation to their

complaint, that their expulsion to Chile would violate Article 3

(Art. 3) of the Convention, the applicants had an effective remedy as

required by Article 13 (Art. 13) of the Convention.

The Commission recalls that the applicants' allegations in

this respect were submitted to the Police Authority, which transferred

the case to the National Immigration Board. In turn the Board

transferred the case to the Government with the opinion that there

were, in the Board's view, no obstacles against the enforcement of the

expulsion order. On 5 October 1989 the Government found that there

were no obstacles against deporting the applicants to Chile. The

applicants' case has consequently been examined at three levels of

jurisdiction and decided by the Government as last and final instance.

The Commission here recalls that Article 13 (Art. 13) of the

Convention does not guarantee a remedy against the highest instance,

in this case the Government (cf. Dec. Nos. 8603/67 etc., 18.12.80,

D.R. 22 p. 147). It considers that the procedure which was followed

in the applicants' case satisfied the conditions of Article 13

(Art. 13) of the Convention.

It follows that this complaint is manifestly ill-founded

within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

5. The applicants also allege that Sweden's failure to comply

with the Commission's indications under Rule 36 of its Rules of

Procedure hinders the effective exercise of their right to have their

case examined by the Commission. They submit that Sweden has violated

Articles 1 (Art. 1) and 25 (Art. 25) of the Convention.

Article 1 (Art. 1) of the Convention reads:

"The High Contracting Parties shall secure to

everyone within their jurisdiction the rights and

freedoms defined in Section 1 of the Convention."

Article 25 para. 1 (Art. 25-1) of the Convention reads:

"The Commission may receive petitions addressed to the Secretary-

General of the Council of Europe from any person ... claiming

to be the victim of a violation by one of the High Contracting

Parties of the rights set forth in this Convention, provided that

the High Contracting Party against which the complaint has been

lodged has declared that it recognises the competence of the

Commission to receive such petitions. Those of the High

Contracting Parties who have made such a declaration undertake

not to hinder in any way the effective exercise of this right."

The Government submit that there is no obligation under the

Convention to comply with an indication under Rule 36. This complaint is

therefore incompatible ratione materiae with the Convention or manifestly

ill-founded.

The Commission considers that the respondent State's failure

to comply with the indications made by the Commission under Rule 36

of its Rules of Procedure raises the question whether there has been

a violation of Article 25 para. 1 (Art. 25-1) of the Convention in

conjunction with Article 1 (Art. 25-1+1) in view of the special nature

of the alleged violation of Article 3 (Art. 3) of the Convention.

This question involves issues which, in the Commission's view, justify

further examination.

For these reasons, the Commission

DECLARES INADMISSIBLE

the complaints under Articles 6 (Art. 6) and 13 (Art. 13) of

the Convention

DECLARES ADMISSIBLE THE REMAINDER OF THE APPLICATION,

without prejudging the merits of the case

RETAINS FOR FURTHER EXAMINATION

the issues arising from the failure to comply with the

indications under Rule 36 of the Commission's

Rules of Procedure

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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CRUZ VARAS ; and HIS FAMILY v. SWEDEN

CRUZ VARAS ; and HIS FAMILY v. SWEDEN

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