Communicated on 14 December 2015

THIRD SECTION

Application no. 9602/15 Kader BENCHEREF against Sweden lodged on 18 February 2015

STATEMENT OF FACTS

The applicant, Mr Kader Bencheref , is a Moroccan national, who was born in 1985 and is detained in Sweden. He is represented before the Court by Ms A. Massarsch , a lawyer practising in Stockholm.

The circumstances of the case

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

1. Background

On 24 July 2006 the applicant applied for asylum and a residence permit in Sweden. He was placed in refugee centre located in Sundsvall awaiting the migration proceedings.

On 21 September 2006 the applicant was detained on remand as he was suspected of committing several attempts of rape, physical assault, unlawful threat, attempt to theft and sexual molestation. The Prosecutor ’ s Office in Sundsvall ( Å klagarkammaren ) prosecuted the applicant and, on 13 December 2006, the District Court ( tingsrätten ) in Sundsvall convicted the applicant of the above mentioned crimes, sentenced him to three years and six months ’ imprisonment, ordered his expulsion from Sweden and banned him from returning to Sweden for life. The Migration Board ( Migrationsverket ) had submitted to the court that there were no impediments to the applicant being expelled to Morocco.

The applicant appealed to the Court of Appeal ( hovrätten ) of Lower Norrland which, on 27 February 2007, reduced the sentence to three years ’ imprisonment and limited the ban on return to ten years. On 2 April 2007 the Supreme Court ( Högsta domstolen ) refused leave to appeal.

As a consequence of the criminal conviction and the expulsion order, the Migration Board struck the applicant ’ s application for asylum and a residence permit out on 25 May 2007. Subsequently, the applicant lodged repeated applications for asylum and a residence permit with the Migration Board, but these were rejected and, upon appeal, the migration courts upheld the decisions.

2. The detention proceedings

On 19 September 2008 the Police Authority ( Polismyndigheten ) decided to detain the applicant with a view to expelling him to Morocco. This decision was enforced on 21 September 2008, the same date that the applicant was released on probation. Since then, and in accordance with Swedish law, the Police Authority has reconsidered the decision of the applicant ’ s detention every other month.

Since the applicant ’ s mental health has fluctuated, he has occasionally been transferred from the detention centre to psychiatric care facilities and the administrative courts have, on a few occasions, decided to commit him to compulsory psychiatric care ( tvångsvård ) for shorter periods. Between 7 and 16 July 2010, when placed in a psychiatric care facility, the applicant was temporarily released from detention. However, as soon as he was discharged, the Police Authority detained him again.

On 22 January 2013 the District Court in Södertälje convicted the applicant of assaulting several officials working in the detention centre where he was detained and inflicting damage on the detention centre ’ s facilities. He was sentenced to pay fines amounting to 6,000 Swedish kronor (SEK) (approximately 640 Euros), and damages to the victims. This judgment was not appealed against and thus became final.

On 16 April 2014 the Police Authority again reconsidered its decision to keep the applicant in detention. Initially it noted that the applicant had not cooperated with the Police Authority in order to clarify his identity or facilitate the enforcement of his expulsion order, but he had rather obstructed the investigations by providing the authorities with as little information as possible and he had been acting in a threatening manner against the officials who were handling the matter. Moreover, the Police Authority and the Ministry for Foreign Affairs had regularly been taking measures in order to enforce the expulsion order and the contacts with the Moroccan authorities had been intensified after the Police Authority had travelled to Morocco in May 2012. The Police Authority considered that all possible measures to enforce the expulsion order had not yet been exhausted. Moreover, it found that the applicant was emotionally unstable and violent and that there was a real and manifest risk that he, if he were to be released, would commit crimes of violence. That risk had also been confirmed by a psychiatrist, who was working for the Prison and Probation Board and who had been treating the applicant. The Police Authority also noted that, according to a note written by the officials working for the Prison and Probation Board, the applicant had expressed that if the expulsion order were to be enforced, he would try to hurt any person getting in his way to avoid being expelled to Morocco. Considering this, and even if the applicant had been detained for a long time, the Police Authority found that it still was possible that the expulsion order could be enforced and thus the applicant should remain in detention.

The applicant appealed against the decision to the Migration Court ( Migrationsdomstolen ) requesting the court to quash the decision and release him immediately or, in the alternative, put him under supervision ( ställa honom under uppsikt ). The applicant referred to Article 5 of the Convention and claimed inter alia that it was disproportionate to keep him in detention since there was no realistic possibility to enforce the expulsion order.

On 19 May 2014 the Migration Court rejected the appeal mainly reiterating the reasoning of the Police Authority. However, the court also added, with referral to the Court ’ s case-law, that the detention of a person for the purpose of enforcement of an expulsion order, in order to be lawful under Article 5 of the Convention, requires that the national authorities actively are working with the enforcement of the expulsion order and that it does not appear impossible, within foreseeable future, to enforce the expulsion order. The court stressed, in particular, that the Swedish authorities had regularly and resolutely been taking measures in order to enforce the expulsion order and that the matter, in March 2014, had been on the highest political level. The authorities were still working actively with the enforcement of the expulsion order and it did not appear impossible to enforce the expulsion order within a foreseeable future. Thus, the continued detention of the applicant was not violation of Article 5 of the Convention.

The applicant appealed to the Migration Court of Appeal ( Migrationsöverdomstolen ) which, on 19 June 2014, granted leave to appeal.

In the meantime, on 4 June 2014, the Attunda District Court convicted the applicant of molesting and assaulting the officials working in the detention centre where he was being held and of inflicting damage on the detention centre ’ s facilities and sentenced him to four months ’ imprisonment. This judgment was not appealed against and thus it became final.

The applicant started to serve the prison sentence immediately and, according to Swedish law, the detention order was therefore revoked. Consequently, on 4 July 2014, the Migration Court of Appeal struck the case out of its list of cases. However, in its decision, the court noted that the question whether there were exceptional reasons to keep the applicant in detention was a principled and important question that needed to be assessed by the court. Initially the court noted that there was a real and manifest risk that the applicant upon release would commit crimes of violence and that there was a ground in Swedish law to detain the applicant. However, the applicant had been detained for an extraordinarily long time and even if it could be established that the authorities had been taking measures in order to enforce the expulsion order, it could also be noted that there had been periods of time when the authorities had been inactive. Moreover, the contacts with the Moroccan authorities had not led to any concrete results and therefore it could on reasonable grounds be questioned whether the expulsion order actually could be enforced within a foreseeable future. The court stated that, even if the matter had been on a high political level, it still appeared unclear if and when the expulsion order could be enforced and that it was scarcely possible to see what measures could be taken in order to enforce the expulsion order. Considering all of these circumstances, the court found that a continued detention of the applicant would not have been proportional.

The court ’ s judgment was not unanimous since one of the three judges found that there were reasons to keep the applicant in detention. He considered that the authorities had a clear intent to expel the applicant and that they had been taking all reasonable measures in order to do so. Moreover, he found that the contacts between Moroccan and Swedish authorities had been intensified recently and, according to the Police Authority, there were still measures which could be taken. Thus, it did not appear improbable that the expulsion order could be enforced in a foreseeable future. Furthermore, the applicant had been convicted of serious crimes in Sweden and therefore the public interest in keeping him in custody outweighed the applicant ’ s right to liberty. The dissenting judge thus concluded that the continued detention of the applicant would not have been a disproportionate measure.

On 11 September 2014 the Police Authority once again decided to detain the applicant in order to expel him. Upon the probationary release of the applicant, on 14 September 2014, the decision was enforced.

The applicant appealed against the decision to the Migration Court requesting that he be released immediately or, in the alternative, that he be put under supervision. The applicant once again referred to Article 5 of the Convention and claimed inter alia that it was disproportionate to keep him in detention since there was no realistic possibility to enforce the expulsion order.

The Police Authority contested the applicant ’ s appeal stating that it had intensified its work and that it had had a meeting with the Ministry of Justice to discuss what measures could be taken and the Minister of Justice had also handed over a letter to the Moroccan Minister of Internal Affairs. Moreover, the Ministry for Foreign Affairs and the Ministry of Justice had been in contact with the Moroccan embassy in Stockholm. The Police Authority further argued that this was an initial detention decision and not a decision about prolongation of detention and thus exceptional reasons were not needed according to Swedish law.

On 16 September 2014 the Migration Court rejected the appeal. First the court noted that there was a real and manifest risk that the applicant, upon release, would commit crimes and that there was a legal ground in Swedish law to detain him awaiting his expulsion. Moreover, the court found that, even if the matter concerned an initial detention decision, it had to take the time the applicant had been in detention before he served the prison sentence into account and thus, even if it was not explicitly expressed in the law, exceptional reasons were needed to detain the applicant. The court explicitly stated that it would be “unreasonable and inhuman” not to take the time the applicant had been in detention before he served the prison sentence into account. The court thereafter stressed that the authorities recently had intensified their work and that the matter had been discussed among the Swedish and Moroccan ministers and that it, due to those measures, appeared more probable that the expulsion could be executed within a foreseeable future. Considering this, a continued detention could not be considered disproportional and, thus, it was legitimate to detain the applicant. The court also noted that the interest of keeping the applicant in custody preceded the interest of the applicant ’ s right to liberty and that it was not a sufficient measure to subject the applicant to supervision.

The applicant appealed against the judgment to the Migration Court of Appeal maintaining his claims. On 29 September 2014 the Migration Court of Appeal refused leave to appeal.

On 14 January 2015 the Police Authority once again reconsidered its decision and found that there were still reasons to keep the applicant in detention. The Police Authority stated that there were reasons to believe that the applicant, if released, would commit crimes of violence and that the Police Authority, even though it had been a long time since the applicant initially was detained, still actively had been taking measures in order to enforce the expulsion order. Moreover, it noted that the applicant had not cooperated with the Swedish authorities in order to clarify his identity and ease the expulsion at all.

The applicant appealed against the decision to the Migration Court, requesting that the Police Authority ’ s decision should be quashed and that he be released immediately or, in the alternative, that he be put under supervision.

On 30 January 2015 the Migration Court rejected the appeal mainly reiterating the reasoning of the Police Authority. However, the court noted, in particular, that the Swedish authorities, after the Migration Court of Appeal ’ s decision of 4 July 2014, on several occasions had tried to contact the Moroccan authorities and other international organs in order to investigate the applicant ’ s identity and that the period of time since the matter was dealt with on the highest political level (six months) was not unreasonable long considering the extraordinary circumstances of the present case. It also noted that, since the authorities continuously had been taking measures to enforce the expulsion order, it could not be considered impossible to enforce the expulsion order within a foreseeable future. Moreover, considering that the applicant had not at all cooperated with Swedish authorities (for example he had not signed documents to facilitate the enforcement) and that he had been acting violently towards the officials, the court found that the time he had spent in detention could not be considered disproportional. The court also noted that the applicant had expressed that he would use violence to stop a future expulsion of him.

The applicant appealed against the judgment to the Migration Court of Appeal which, on 17 February 2015, refused leave to appeal.

3. Measures taken in order to expel the applicant

As noted above the applicant was detained on 21 September 2008. Since then the following measures have been taken by the Swedish authorities in order to enforce the expulsion order.

1. On 20 January 2009 the Police Authority sent a request to Interpol to help it with the identification of the applicant.

2. On 16 July 2009 the Police Authority once again sent a request to Interpol to help it with the identification of the applicant.

3. Between 28 July and 9 August 2009 the Police Authority received negative responses as regards the applicant ’ s identity from Luxembourg, Austria, Switzerland, Spain, the Czech Republic and the United Kingdom. However, it received a positive response from France in which it was noted that the French authorities had found the applicant ’ s fingerprints in their system and that the applicant was suspected of having committed a robbery. It also received a positive response as regards the applicant ’ s identity from Germany wherein it was noted that the applicant had resided in Germany without a permit.

4. On 2 September 2009 the Police Authority requested additional information from France and Germany via Interpol.

5. On 17 September 2009 the Police Authority requested a meeting with the Moroccan Consul General in Stockholm in order to take the applicant ’ s fingerprints and issue travel documents.

6. On 24 September 2009 the above mentioned meeting between the Police Authority, the Moroccan Consul General and the applicant was planned to take place, but the meeting had to be cancelled due to the applicant ’ s behaviour .

7. On 22 July 2010 the Police Authority requested Interpol to assist it in its contacts with Morocco.

8. On 24 August 2010 the Moroccan Consul General visited the applicant in hospital and took his fingerprints.

9. On 6 September 2010 the Police Authority contacted the Moroccan Embassy in Stockholm to investigate whether they had received any reply from the Moroccan authorities as regards the applicant ’ s identity.

10. On 20 October 2010 the Police Authority contacted the Ministry for Foreign Affairs requesting the Ministry to contact the Moroccan Embassy in Stockholm as regards the applicant ’ s identity.

11. On 9 November 2010 the Police Authority contacted the Moroccan Embassy in Stockholm which announced that they were still working on identifying the applicant.

12. On 12 January 2011 the Police Authority tried to get in touch with the Ministry for Foreign Affairs.

13. On 8 March 2011 the Moroccan Embassy in Stockholm announced that they had a match with the applicant ’ s fingerprint, but that they were still waiting for further information from the Moroccan Police.

14. On 11 March 2011 the Ministry for Foreign Affairs announced that they would send a note to the Moroccan Authorities.

15. On 12 May 2011 the Police Authority received a letter from the Government Offices stating that a representative of the Swedish Ministry for Foreign Affairs had had a meeting with a representative of the Moroccan Ministry of Foreign Affairs in Rabat, Morocco, discussing the applicant.

16. On 9 June 2011 the Police Authority tried to contact the Swedish Embassy in Rabat to remind them of the request.

17. On 14 June 2011 the Police Authority contacted the Ministry for Foreign Affairs which stated that they would contact the Moroccan Embassy in Stockholm and ask why they would not accept the applicant back.

18. On 8 August 2011 the Police Authority sent an e-mail to the Moroccan Embassy in Stockholm requesting travel documents to be issued for the applicant.

19. On 22 August 2011 the Police Authority went to the Moroccan Embassy in Stockholm and lodged a request for travel documents for the applicant.

20. On 31 August 2011 the Police Authority sent a request to Interpol for help to identify the applicant.

21. On 15 February 2012 the Police Authority and the Moroccan Consul General visited the applicant in order to take new fingerprints.

22. On 17 April 2012 the Police Authority contacted the Moroccan Embassy in Stockholm.

23. On 26 April 2012 the Moroccan Consul General announced that the applicant ’ s fingerprints were not unique (“there were thousands of similar finger prints”) and thus travel documents could not be issued.

24. Between 19 May and 8 June 2012, a representative of the Police Authority travelled to Morocco and met the Moroccan authorities and the Swedish ambassador in Rabat to request their help to identify the applicant.

25. On 30 October 2012 the Police Authority sent yet another request to Interpol for help to identify the applicant.

26. On 19 February 2013 the Police Authority contacted the Ministry for Foreign Affairs in the matter.

27. In October, November and December 2013 several meetings were held between the Police Authority, the Prison and Probation Service, the Ministry of Justice and the Ministry for Foreign Affairs to discuss the matter.

28. On 12 November 2013 the Police Authority contacted the French Liaison Officer at Interpol and requested him to help to identify the applicant.

29. In 2014, as it appears from the documents in the case-file, the Police Authority requested the Swedish Embassy in Rabat to arrange a meeting with the Moroccan Government Office. As a result, the Swedish Minister of Migration discussed the matter with the Deputy Minister of Foreign Affairs in Morocco when he visited Morocco.

30. On 28 May 2014 the Police Authority had a meeting with representatives of the Ministry of Justice and the Ministry for Foreign Affairs where the matter and suggestions for further actions were discussed. It was decided that a new meeting should take place after the summer.

31. On 4 July 2014 the Minister of Justice handed over a letter containing a request for help in the matter to the Moroccan Minister of Internal Affairs.

32. In September 2014 the Ministry for Foreign Affairs contacted the Moroccan Embassy in Stockholm about the above mentioned letter.

33. During the above time period the Police Authority has also on several unspecified occasions tried to contact and been in contact with the Moroccan authorities, the Moroccan Embassy in Stockholm and the Swedish Embassy in Morocco in the matter.

COMPLAINT

Invoking Article 5 § 1 of the Convention, the applicant complains that his continued detention is arbitrary and completely disproportionate since he has been detained in Sweden since 21 September 2008 without the authorities being able to enforce the expulsion order against him.

QUESTION TO THE PARTIES

Is the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention? In particular, can the detention of the applicant with regard taken to all the circumstances of the present case be considered lawful?