Published on 25 October 2021

FIRST SECTION

Application no. 35950/20 Esmat HASANI against Sweden lodged on 12 August 2020 communicated on 8 October 2021

STATEMENT OF FACTS

The applicant, Mr Esmat Hasani, is an Afghan national, who was born in 2001 and lives in Göteborg. He is represented before the Court by Ms Anna Rogalska Hedlund, residing in Stockholm.

The circumstances of the case

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

The applicant, born in 2001, and his late brother, born in 1999, are the two oldest children in their family. Their parents died in a car accident in 2012. Their two younger siblings have now been granted asylum in Germany and live in Hamburg. The brother was born with a visual impairment which was degenerative and his visual acuity was strongly reduced. The applicant helped in his daily needs after their parents had died. He needed assistance with food, hygiene, cleaning and going out.

The applicant and his brother left Afghanistan and arrived in Sweden in October 2015. They applied for asylum a few days later. Upon arrival, they were placed together in a family home which was headed by an experienced assistant nurse specialised in psychiatry, and a lawyer was appointed as their guardian. The applicant started school shortly after arriving in Sweden. Due to his visual impairment, the applicant’s brother attended a special school from August 2016 onwards.

On 5 January 2017 the brother’s placement in the family home came to an end when he turned 18 years old. In addition the appointment of the guardian came to an end and he was moved to another municipality. The applicant visited him on a daily basis. Apparently at this point the brother made his first suicide attempt.

Subsequently, the applicant’s brother was placed in another home 265 km away from the applicant, and he had to finish his schooling in the special school. After about five months, the brother was able to move back closer to the applicant. His new accommodation was adapted to persons in need of assistance with care available 24 hours per day but it was not a specialised care or compulsory care institution with personnel of psychiatric expertise.

On 23 August 2017 the Migration Agency ( Migrationsverket ) rejected the applicant’s and his brother’s asylum applications. It did not find that the brother was in need of protection. As concerned the applicant, the Agency found that he was in need of protection since he was still a minor and had no social network left in Afghanistan who could take care of him. However, since the applicant’s older brother was going to be expelled to Afghanistan, he would provide such social network for the applicant.

On 7 September 2017 the applicant was given notice of the Migration Agency’s decision. He contacted his brother and explained to him the content of the decision.

On 18 September 2017 the brother was given notice of the removal decision in respect of him in the presence of the case handler from the Migration Agency and an interpreter. He and the applicant spoke on the phone the following day. The applicant’s brother committed suicide a day later, on 20 September 2017.

The applicant then appealed against the removal decision in his case, maintaining that the circumstances had changed since he no longer had a brother who could care for him. On 26 September 2017 the Migration Agency reviewed its decision and granted the applicant a residence permit.

Subsequently, the Migration Agency conducted an internal investigation of how the case had been handled. The investigation report of 5 October 2017 concluded that there had been shortcomings in the original procedures, such as insufficient examination on several counts.

By letter dated 1 November 2018, the applicant claimed compensation before the Chancellor of Justice ( Justitiekanslern ) in the amount of 300,000 Swedish kronor (SEK, approximately 30,000 euros (EUR)) plus interest. He maintained that there had been a breach of Article 8 of the Convention when his brother was forced to move away from where he lived and no arrangement had been made for them to live together. In particular, the brother had for a while lived quite far from him. The applicant also claimed that there had been a breach of Articles 2 and 3 of the Convention as he and his brother had been wrongfully refused asylum and because the brother’s suicide had not been prevented.

In her decision of 17 February 2020, the Chancellor of Justice took note of the deeply tragic character of the case. However, as to Article 8, there had not been any violation as it had been necessary to provide the brother with adequate housing where he could get assistance and it had only been for approximately five months that he had lived far from the applicant. The brother himself had also agreed to that housing.

As to Article 2, the Chancellor of Justice observed that the brother had lived in accommodation where he had had access to round-the-clock assistance and care, but it had not been compulsory care and there had been no staff with psychiatric competence available. There was no information as to whether anyone in the housing had had knowledge of how the brother had been coping mentally. The State had thus a limited control over the brother, and it could be questioned whether the State had in these circumstances an obligation to take measures in order to minimise the risk that the brother would harm himself. Instead of examining the situation at the brother’s housing, the Chancellor of Justice found it more pertinent to examine whether it had been appropriate that the migration authorities had placed him to live there, or whether he should rather have been under psychiatric care. In that context, it was noted that the brother had mental issues for a long time but he had not been in touch with psychiatric care. His family consultant had been informed that the brother had attempted to commit suicide on an earlier occasion when he had been forced to leave the family home in January 2017. The brother had also threatened to take his life if he was not granted asylum. Consequently, the migration authorities had information about a risk that the brother could be injuring himself. At the same time, he had been placed in the home as a temporary solution in accordance with his own wish to live closer to the applicant, and he had stated that he was happy with this solution. The negative decision on his asylum application had been delivered to him at a personal meeting. At the meeting there had been nothing to indicate that the brother had suicidal thoughts. Nor had he or the applicant contacted the authorities afterwards and asked for help. The applicant and his brother had subsequently spoken and the applicant had neither expressed any worries nor taken any measures on the basis that he thought that his brother needed help. Although, viewed in retrospect, it would have been more appropriate to give the brother psychological or psychiatric care upon delivery of the decision on his asylum application, it had not been shown that the migration authorities knew or should have known that there was a real and immediate risk of suicide. There was thus no violation of Article 2 of the Convention.

As to Article 3, the Chancellor of Justice observed that there was nothing in the conduct of the authorities that indicated a violation of that provision.

The Chancellor of Justice also examined whether the authorities had committed misconduct in office ( tjänstefel ). She agreed with the assessment by the Migration Agency that the cases should have been examined more thoroughly before the removal decisions had been adopted and that the outcome of the decisions could be questioned. Yet there was nothing indicating any intention to set aside information but rather the case concerned a questionable assessment by the authorities. However, the misjudgements were not so serious as to be considered criminal negligence.

COMPLAINT

The applicant complains under Article 2 of the Convention that the authorities failed to protect his brother from committing a suicide.

QUESTION TO THE PARTIES

Has the applicant’s brother’s right to life, ensured by Article 2 of the Convention, been violated in the present case? In particular, did the applicant’s brother’s death result from a failure by the authorities to protect his life ?