ITEMID: 001-106976
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF HUSSEINI v. SWEDEN
IMPORTANCE: 4
CONCLUSION: No violation of Art. 3 (in case of expulsion to Afghanistan);No violation of Art. 8
JUDGES: Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Isabelle Berro-Lefèvre;Mark Villiger
TEXT: 7. The applicant was born in 1980 and currently lives in Sweden.
8. On 1 September 2003 he applied for asylum and a residence permit in Sweden. In interviews before the Migration Board (Migrationsverket) on 5 November 2003 and 11 March 2004 the applicant stated that he was ethnic Hazara, Shia Muslim and born and raised in a small community consisting of approximately thirty-five families in the province of Ghazni. He had never been to school and was illiterate. He claimed that his problems emanated from the fact that his father was of Hazara ethnicity and his mother was of Pashtun ethnicity. As a child of mixed ethnicity, he had not been allowed to play with other children as they had been unkind to him. Since it had not been possible to leave him alone, he had always been with his father at his store in the nearest city. When the Taliban had taken power in the province, they had frequently come to the store and taken food without paying, for which reason other people in the city had believed that the family sympathised with the Taliban. The fact that his mother was Pashtun had reinforced this view. Moreover, his father had inherited everything from his grandfather, despite there being an older uncle, as the latter had been disowned due to bad behaviour. The uncle had then become very hostile to the applicant and his family. After the fall of the Taliban, the applicant’s situation had worsened as other villagers looked upon the applicant and his parents as traitors. He had been assaulted and severely beaten on several occasions and twice he had lost consciousness. They had also broken his nose and cut him with a knife. During the summer of 2003 he had been kidnapped twice and ill-treated. The first time he was locked up in a cellar for one day, and some months later he was held prisoner for two days. Each time he had been released when his father had paid a large amount of money. His father had been advised by his business partner to move but he had refused as he thought things would get better over time. Moreover, the applicant did not know if his mother had any relatives as she had never mentioned any, but they could not have moved to her home town since she had married a man from another ethnic group.
9. In July 2003 a group of masked men had come to their house and his father had told him to leave the house, which he had managed to do by escaping through the basement. He had seen the assailants kill his mother before he fled. He had then gone to Kabul where he had found out from a taxi driver who had a route to his home town that his father had also been killed. His father’s business partner had helped him to leave the country and he had had contact with no one since he left. The applicant was convinced that he would be killed if returned to Afghanistan and that the authorities neither could nor would help him. As he was of mixed ethnicity he would not be welcome anywhere in the country.
10. On 4 May 2004 the Migration Board rejected the application. It found that the general situation in Afghanistan was not such that the applicant could be granted leave to remain in Sweden on this sole ground. Turning to the applicant’s personal circumstances, the Board observed that it had found no evidence that persons of mixed ethnicities faced specific problems in Afghanistan. According to the applicant’s own account, ethnicity was passed down by the father, for which reason the applicant was considered a Hazara. Thus, the Board did not believe that the applicant had faced such discrimination as claimed because of his mixed ethnicity. Moreover, it noted that, again according to the applicant, everyone in his village had tried to get along with the Taliban and had paid to be well treated by them. Therefore the Board was not convinced that the applicant and his family had been suspected of being collaborators with the Taliban and ill-treated on this ground. The Board further questioned the claim that the applicant had no relatives other than his uncle, having regard to the very strong family ties in Afghan culture. In any event, his father’s business partner was still there and had shown a friendly and supportive attitude to the applicant and his family. Consequently, the Board concluded that the applicant had a social network in Afghanistan which made it possible for him to return. Since there was no other reason to grant the applicant leave to remain in Sweden, his application was rejected.
11. The applicant appealed to the Aliens Appeals Board (Utlänningsnämnden), and was therefore heard again. He maintained his claims and added that he was not considered a Hazara simply because his father was one. Moreover, the suspicion that they had collaborated with the Taliban was also based on the fact that his mother was Pashtun and that the Taliban had not touched their home. The family’s poor reputation had then been used against them by his uncle. His mother had no contact with her family since she had married outside her ethnicity. Moreover, his father’s business partner had become wealthy thanks to the applicant’s father and therefore had owed him a favour. In any event, it was money from their business which had paid for the applicant’s trip.
12. On 28 February 2005 the Aliens Appeals Board rejected the applicant’s appeal as concerned his asylum application. It noted that the U.S. Coalition Forces had established a military base in Ghazni to stabilise the area. Against this background, and for the reasons set out in the Migration Board’s decision, the Aliens Appeals Board found it unsubstantiated that the applicant would risk persecution upon return.
13. In February 2004 the applicant married a Pakistani woman, who had been granted a residence permit in Sweden due to a previous marriage. In December 2004 the couple had a daughter and therefore, on 28 February 2005 the Aliens Appeals Board exempted the applicant from the regulation on family reunification which set out that an applicant must apply for a residence permit on the basis of family from his country of origin. The Aliens Appeals Board thus granted the applicant a temporary residence permit for one year. On 28 March 2006 the applicant was granted a permanent residence permit in Sweden on the same grounds. The couple had a son on 11 April 2006.
14. On 3 August 2007 the applicant’s wife left him, and, together with the children, went to live at a protected address. The children were at that time approximately two and a half and one and a half years old. The estranged wife reported to the police that she had been raped and ill-treated by the applicant for the last two years and that he had also hit their daughter. She explained that she had already tried to leave the applicant in August 2006 after he had threatened her with a knife and the police had to intervene. Criminal proceedings were immediately initiated.
15. Subsequently, the prosecution authority issued restraining orders against the applicant vis-à-vis his estranged wife and their children, under section 1 of the Restraining Orders Act (lagen (1988:688) om besöksförbud).
16. On 25 March 2008 the applicant was examined by two psychiatrists at the National Board of Forensic Medicine, who in a medical report of 7 April 2008 noted that the applicant described having symptoms of PTSD and depression with suicidal thoughts. Should a sentence of imprisonment be considered, an examination of the applicant by a forensic psychiatrist was recommended.
17. The trial took place before the District Court (tingsrätten) in Norrköping, and commenced on 8 April 2008, when the applicant, his estranged wife, her mother and two neighbours were heard and documentary evidence submitted. The applicant was detained on remand on 11 April 2008 and submitted for examination by a forensic psychiatrist, who concluded that the applicant was not suffering from a serious mental disturbance and that he had not committed the act of which he was accused due to serious mental disturbance.
18. By judgment of 19 May 2008 the District Court (tingsrätten) in Norrköping convicted the applicant of rape and aggravated violation of a woman’s integrity (grov kvinnofridskränkning) committed several times a week over a period of two years, between 2005 and 3 August 2007. The violation included hitting, pushing, hair pulling and threatening to harm or kill the wife and the children, or to take the children away from the wife by taking them to Afghanistan. The District Court noted that the wife had made a very composed and credible impression. She had presented her story, which was supported by witness statements, in a calm and balanced way.
19. The applicant was sentenced to two years’ imprisonment and five years’ expulsion from Sweden, with a prohibition on returning before 19 May 2013.
20. In its decision to expel the applicant the District Court had regard, inter alia, to a report dated 8 April 2008 from the relevant social welfare board relating to the issue of the children’s need for contact with their father and how they would be affected by his expulsion. It pointed out that the estranged wife was afraid of the applicant and therefore still lived at a secret address. The children had not seen their father since August 2007 and the mother would only take part in visits if a contact person were present. An expulsion would most likely mean that the children would not have any contact with their father during the expulsion period. Generally, children needed close and good contact with both their parents. However, the courts and the social services also had to take into account the risk of children being subjected to violence, abuse, abduction, etc. Having regard to the crimes at issue, the overall assessment was therefore that the children’s need for contact with their father, if convicted, should be balanced against the risk of their being subjected to, or becoming witness to, violence or other degrading treatment during access.
21. In its decision to expel the applicant, the District Court essentially stated the following. In view of the nature of the crimes and the circumstances of the case, there was reason to fear that the applicant would continue to commit crimes in Sweden. Moreover, in view of the illtreatment endured by the estranged wife and caused by the applicant, the crimes were considered to be so serious that the applicant should not be allowed to remain in Sweden. He lacked any substantial connection to Sweden other than his family, who had to live at a secret address to avoid being persecuted by him. In conclusion, the children’s need for contact with their father could not be considered to be so significant that an expulsion should be avoided. However, having regard to the children, the expulsion period was limited to five years. Finally, the Migration Board had been heard and had stated that there were no impediments to the expulsion of the applicant to his home country.
22. The applicant appealed to the Göta Court of Appeal (hovrätten), before which the applicant and the estranged wife were heard, as were the witnesses who had been heard before the District Court. On 25 July 2008 the Göta Court of Appeal upheld the lower court’s judgment in full.
23. The applicant requested leave to appeal to the Supreme Court (Högsta domstolen) which was refused on 17 September 2008.
24. Having left the applicant on 3 August 2007, on 17 August 2007 the estranged wife filed for divorce from the applicant and sole custody of the children. She contended that she had been ill-treated by the applicant, that he had also hit the children, and that she had reported the abuse to the police. The applicant agreed to a divorce but requested sole custody of the children. He also demanded access to the children for four hours a month in the presence of a contact person.
25. On 9 November 2007, the District Court temporarily granted the estranged wife sole custody of the couple’s children while the proceedings were pending before it. It further decided temporarily that the applicant should not have physical contact with the children during this time. It noted in that respect that the applicant had been accused of serious crimes, including violence against the daughter. The prosecutor was considering whether to charge the applicant and, while awaiting developments in this regard, the District Court found joint custody to be incompatible with the children’s best interest. Nor should access between the applicant and the children be established under those circumstances.
26. The applicant’s appeal against the decision was rejected by the Court of Appeal on 30 November 2007.
27. As stated above, in the criminal proceedings the applicant was convicted on 19 May 2008 by the District Court.
28. In the custody and access proceedings, at the request of the District Court, the social welfare board submitted a report dated 5 June 2008 concerning custody and access rights, based on four interviews with the estranged wife and two interviews with the applicant (one at home and one at the pre-trial detention centre). The social welfare board had also met the children at their home in March 2008, and spoken to the children’s nursery school and to a deaconess involved in the case. In addition, they had had access to relevant written material such as the first instance criminal judgment against the applicant and the examination conducted by the forensic psychiatrist. The report stated that in view of the applicant’s abuse of his estranged wife and the fact that he had probably also physically abused his daughter, there was a high risk that the children would be harmed if the applicant were to have custody of them. The children were very young when they last had contact with the applicant and they would have no memories of their father that they could express in words. Their need for a relationship with their father would increase when they became older. Access between them and the applicant would involve an increased risk that their secret address would become known to him. This risk should be balanced against the fact that the applicant had subjected his family to abuse and that he would probably be expelled upon release from prison. Thus, it was advised that he should not have access to the children. In order to meet the children’s need for contact with their origins, it was noted that such could be accommodated through letters. The social welfare board could distribute letters from the applicant to the children via the estranged wife, who in turn could reply within a month to report on the children’s development.
29. The applicant and his estranged wife divorced in July 2008.
30. On 17 September 2008 the applicant’s conviction and sentence became final.
31. In letters of 17 and 26 June, and 1 September 2008 the applicant submitted his observations on the report from the social welfare board. He found that the report was partial to the benefit of the estranged wife and not in the interests of the children.
32. On 4 November 2008, the District Court held a hearing in the case. Represented by legal counsel, the applicant and his ex-wife were heard. Seven witnesses were heard at the applicant’s request. A representative from the social welfare board stated that the aim had been to see both parents an equal number of times during the custody investigation but that this had not been possible because the applicant was detained on remand. In general young children were directly affected by how their mother was treated and it was therefore very likely that the applicant’s daughter would experience bad memories if she had to see the applicant. Moreover, if the children were to have contact with the applicant, they would be exposed to yet another separation from him when the expulsion order was implemented. Thus, for the moment it was not in the children’s best interests to see the applicant.
33. By judgment of 18 November 2008, the District Court granted the ex-wife sole custody of the couple’s two children and ordered that the applicant should not have visiting rights to the children. The court noted that the ex-wife and the children lived at a secret location and that the children were well and felt safe with their mother. Moreover, the applicant was in prison, and once his sentence was served he would be expelled to Afghanistan with a prohibition on returning until May 2013. Against this background, it was most appropriate that the ex-wife be granted sole custody of the children.
34. As concerned access rights, the court noted that according to several witness statements the applicant had been a good father to his children. However, there was a considerable risk that the children had experienced the violence to which their mother had been subjected and that seeing the applicant could bring back bad memories and disturb the sense of safety that the children now experienced. Moreover, the applicant was now in prison, from where he would only be able to have very restricted access to his children. Furthermore, even if the children were able to create a safe relationship with the applicant during such limited access, the applicant would subsequently be expelled and therefore separated from his children until May 2013. The District Court therefore found that access was not in the children’s best interest. It did not rule out that access might be established at a later point in time.
35. The District Court only took a stand on access as requested by the applicant, namely to have physical contact with his children in the presence of a contact person. It did not take any decision regulating or limiting the applicant sending letters to his children. Practically, however, sending letters was complicated by the fact that the children lived with their mother at a secret address. Nevertheless, it was possible to send letters to the children via the Swedish Tax Agency. Also, the offer by the social welfare board to pass on letters from the applicant to the children via their mother still stood. The applicant availed himself thereof once at Christmas when he send gifts to the children. Moreover, on 23 October 2008 the ex-wife gave detailed information about the children and their everyday life to the social welfare office, and that information was subsequently communicated to the applicant.
36. The applicant appealed against the District Court judgment of 18 November 2008 to the Court of Appeal, stating that he had requested the Government to repeal his expulsion order and that he had lodged a complaint with the European Court of Human Rights on 23 February 2009 as he considered that his expulsion to Afghanistan would be in violation of Article 3 of the Convention. Consequently, it was not certain that he would be expelled and hence his proposed expulsion was not a reason to deny him access to his children. Moreover, he owned a house and had a job and several friends, for which reason he could offer the children a stable place to visit once he was released from prison. He found it unacceptable that he had no news at all of his children and allegedly was only allowed to send two letters per year to them. The ex-wife stated that the applicant could have access to the children when they were older.
37. On 23 March 2009 the Court of Appeal refused leave to appeal and, on 29 May 2009, so did the Supreme Court.
38. On 1 August 2008, the applicant requested the Government to repeal his expulsion order and grant him a residence permit in Sweden. He submitted essentially that there were problems in Afghanistan between Shia and Sunni Muslims, that he had been wrongfully convicted and that he had two children in Sweden.
39. In a submission of 20 August 2008, the applicant stated that when the Taliban came into power in 1996 and took control of the Hazara area, his father started talking about schools and freedom with others in the Hazara group. The Taliban perceived from this that his father was dissociating himself from his religion. They tried to capture him but he went into hiding. The applicant was captured instead and imprisoned. He was illtreated for thirty-five days, which included beating and being stabbed in the back with a knife, to get him to reveal his father’s hiding place, which he refused. His father paid a large ransom for his release after thirty-five days and the applicant was admitted to hospital for over a month. A few weeks later he went with his father to the mosque, where they were captured by the Hazaras who told the applicant that he was not a Shia Muslim since his father was married to a Pashtun. They wanted him to prove his loyalty to the Shia by walking on burning coals. When he refused, they stabbed him in the shoulder. He walked on the coals and suffered serious burns to his feet. He was left alone and his father came in disguise in the middle of the night to pick him up. His father had to carry him home, where he was treated for his injuries. About a week later, he and his father went to the mosque again and there the others decided that his father should kill him and his mother, which his father refused. Then it was decided that the whole family should die and one of his father’s friends warned them of this. The applicant was twenty-one at the time. He and his parents woke up in the middle of the night to find that the house was on fire and that people were trying to get in through the window. His father fetched a weapon and his mother opened a hatch to an escape tunnel under the house. Before jumping down he saw his mother being injured. They threw down money to him and closed the hatch. He had no choice but to crawl out through the tunnel. He stood and watched while the house burned down and then went to the home of one of his father’s friends who lived in another city. This man helped him leave Afghanistan.
40. In a submission of September 2008, the applicant added that he suffered from post-traumatic stress syndrome (PTSD), that he had tried to commit suicide, and that he had no family other than his children and a new girlfriend in Sweden.
41. On 4 December 2008 the Government rejected the applicant’s request. It found that there was no impediment to the enforcement of the expulsion order and no other special reasons to grant the applicant a residence permit in Sweden.
42. In January 2009, the applicant submitted a new application, dated 31 December 2008, for revocation of the expulsion order. He added that he had not been in contact with his country of origin since he left but knew that his father’s business partner, who had helped him escape, had been killed. Since his parents had been killed and he himself had been tortured by the Taliban, his life was in great danger. He also risked being killed upon return to Afghanistan for having married a Sunni Muslim woman although he was a Shia and for having violated a Sunni Muslim woman in the acts for which he had been convicted in Sweden. Invoking anew his poor mental health, the applicant submitted some medical certificates. One certificate was dated 16 February 2009 and written by a physician at the prison. It stated that the applicant had alleged that he had been imprisoned and tortured on several occasions in Afghanistan and that the physician had seen a large number of scars on his back from cuts. He also had two scars from stab wounds to his thigh and his shin. The physician confirmed that the scars might have been caused by torture as alleged by the applicant. A second medical certificate was dated 17 April 2009 and written by a chief physician and specialist in psychiatry, and by a psychologist at the Medical Centre for Refugees. It stated that the certificate was based on the applicant’s contacts with the Centre from October 2005 to October 2008. He had begun psychotherapy at the Centre in October 2005 to talk about his background and traumatic experiences. The physicians had considered that he was clearly traumatised and had several symptoms of PTSD such as nightmares, flashbacks and anxiety. However, the applicant had been found stable in May 2006 for which reason the sessions had ended. In August 2007 the applicant had contacted the physicians again because he had been feeling unwell. When he had been arrested on suspicion of raping B., he had been placed in a cell and had experienced strong flashbacks from when he had been kidnapped and tortured for one month in Afghanistan. He had been so desperate that he had cut his wrists with a table knife and had then spent one night in the psychiatric emergency department. He had then resumed his sessions with the psychologist and had received medication to help him sleep. However, he had overdosed on the medication in October 2007 due to the strain caused by the criminal trial against him. His last session had been in April 2008, before being imprisoned, and after the judgment he had again tried to commit suicide by taking an overdose of pills. According to the two physicians, the applicant suffered from PTSD, depression, anxiety and had a serious stress reaction to his situation. He was therefore in a very fragile state mentally, with a high risk of suicide if the expulsion order were to be enforced. Thus, they concluded that there were medical-psychiatric impediments to the enforcement of the expulsion order.
43. On 4 June 2009 the Government rejected the new request as it found that there was no impediment to the enforcement of the expulsion order and no other special reasons to grant the applicant a residence permit in Sweden.
44. Finally, in July 2009 the applicant submitted a third application for revocation of the expulsion order based essentially on the same grounds as the previous ones. That case is still pending before the Ministry of Justice.
45. On 24 July 2009 the Court decided to apply Rule 39 of the Rules of Court, indicating to the Government that it was desirable in the interests of the parties and the proper conduct of the proceedings not to deport the applicant until further notice.
46. On 5 August 2009, following the Court’s indication under Rule 39 of the Rules of Court, the acting Minister of Justice decided to stay the enforcement of the expulsion until further notice.
47. The Minister also decided that the applicant should be taken into custody upon his conditional release from prison. Accordingly, the applicant was taken into custody on 11 August 2009. He was released on 28 January 2010 by decision of the Supreme Administrative Court.
48. In the meantime, the Government requested additional information from the Migration Board about some of the issues raised in the present case. Having made an investigatory visit to Afghanistan in November/December 2009, the Migration Board concluded, inter alia, that the security situation in Afghanistan was not such that an expulsion thereto in general would entail a violation of Article 3 of the Convention. The Board noted, however, that according to various sources, the Taliban had increased their operation in Ghazni province where arbitrary killings and civilian deaths among supporters of Government forces had been reported. In Ghazni province the violence had increased mostly in the Pashtu-dominated south, while the situation was relatively calm in the Hazara-dominated northern part of the province. Thus, at the relevant time, there were impediments to enforcing expulsion orders to Ghazni province, notably due to the unstable security situation, which meant, among other things, that humanitarian organizations could not operate in the province and that there were problems for travellers on the road between Kabul and the province.
49. On l4 June 2010 the prosecution authority issued restraining orders against the applicant vis-à-vis his ex-wife and their children, under section 1 of the Restraining Orders Act. The prosecution noted that the applicant had previously been convicted of rape and aggravated violation of a woman’s integrity regarding his former wife, and found that there was a risk that the applicant would commit a crime against, persecute or in some other way seriously harass his former wife or the children. The orders were in force for one year, that is until 13 June 2011. Violation of restraining orders is a crime under the aforementioned Act that can result in a fine or a maximum prison sentence of one year. The applicant failed to bring the decision before the courts.
50. The provisions concerning the right of aliens to enter and to remain in Sweden are laid down in the Aliens Act (Utlänningslagen, 2005:716 hereafter referred to as “the Aliens Act”) which replaced, on 31 March 2006, the old Aliens Act (Utlänningslagen, 1989:529). The Aliens Act was amended anew on 1 January 2010. The following refers to the Aliens Act in force at the relevant time.
51. Under the previous Aliens Act, asylum applications were dealt with by the Migration Board and the Aliens Appeals Board. Under the Aliens Act in force, matters concerning the right of aliens to enter and remain in Sweden are normally dealt with by three instances, the Migration Board, the Migration Court and the Migration Court of Appeal. Thus, appeal against a decision or an order for expulsion issued by the Migration Board, which carries out the initial examination of the case, lies to the Migration Court. The Migration Board is, in principle, obliged to review its decision before it forwards an appeal to the Court. Appeal against a judgment or decision of the Migration Court in turn lies to the Migration Court of Appeal. This instance will, however, only deal with the merits of the case after having granted leave to appeal. Leave to appeal will be granted if (1) it is considered of importance for the guidance of the application of the law that the appeal is examined by the Migration Court of Appeal or (2) there are other exceptional grounds for examining the appeal.
52. Chapter 5, Section 1, of the Aliens Act stipulates that an alien who is considered to be a refugee or otherwise in need of protection is, with certain exceptions, entitled to a residence permit in Sweden. According to Chapter 4, Section 1, of the Aliens Act, the term “refugee” refers to an alien who is outside the country of his or her nationality owing to a well-founded fear of being persecuted on grounds of race, nationality, religious or political beliefs, or on grounds of gender, sexual orientation or other membership of a particular social group and who is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country. This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities cannot be expected to offer protection against persecution by private individuals. By “an alien otherwise in need of protection” is meant, inter alia, a person who has left the country of his or her nationality because of a well-founded fear of being sentenced to death or receiving corporal punishment, or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 4, Section 2, of the Aliens Act).
53. Under certain conditions, an alien may be granted a residence permit even if a deportation or expulsion order has gained legal force. This applies, under Chapter 12, Section 18, of the Aliens Act, where new circumstances have emerged that mean there are reasonable grounds for believing, inter alia, that an enforcement would put the alien in danger of being subjected to capital or corporal punishment, torture or other inhuman or degrading treatment or punishment or there are medical or other special reasons why the order should not be enforced. If a residence permit cannot be granted under this provision, the Migration Board may instead decide to re-examine the matter. Such a re-examination shall be carried out where it may be assumed, on the basis of new circumstances invoked by the alien, that there are lasting impediments to enforcement of the nature referred to in Chapter 12, Sections 1 and 2, of the Aliens Act, and these circumstances could not have been invoked previously or the alien shows that he or she has a valid excuse for not doing so. Should the applicable conditions not have been met, the Migration Board shall decide not to grant a re-examination (Chapter 12, Section 19, of the Aliens Act).
54. Pursuant to Chapter 1, Article 8 of the Penal Code (Brottsbalken, 1962:700) a crime may, apart from ordinary sanctions, result in special consequences defined by law. Expulsion on account of a criminal offence constitutes such a consequence and the decision in this respect is made by the court in which the criminal proceedings take place.
55. Provisions on expulsion on this ground are laid down in the Aliens Act. According to Chapter 8, sections 8 and 11, an alien may not be expelled from Sweden on account of having committed a criminal offence unless certain conditions are satisfied and the person’s links to Swedish society have been taken into account.
56. Moreover, the court must have regard to the general provisions on impediments to the enforcement of an expulsion decision. Thus, pursuant to Chapter 12, section 1, of the Aliens Act, there is an absolute impediment to expelling an alien to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment. Furthermore, a risk of persecution generally constitutes an impediment to enforcing an expulsion decision.
57. If the Government find that a judgment or decision to expel a person on account of having committed a criminal offence cannot be executed or if there are otherwise special reasons not to enforce the decision, by virtue of Chapter 8, section 14 of the 2005 Act, the Government may repeal, in part or completely, the judgment or decision of the court. When considering whether to repeal an expulsion order, the Government shall above all take into account any new circumstances, namely circumstances that did not exist at the time of the courts’ examination of the criminal case. In the travaux préparatoires to this provision (Government Bill 1988/89:86, p. 193), strong family ties and severe illness are given as examples of such “special reasons” that may warrant revocation of an expulsion order. The Government may also, in accordance with Chapter 11, Article 13, of the Instrument of Government (Regeringsformen), pardon or reduce a penal sanction or other legal effect of a criminal act.
58. Rules concerning rights of access to children are primarily to be found in Chapter 6 of the Children and Parents Code (SFS 1949:381; hereinafter the Code). The best interests of the child must be the determining factor in all decisions concerning custody, residence and access. In the assessment of what is in the best interests of the child, particular attention shall be paid to the risk of the child or another member of the family being exposed to abuse or of the child being unlawfully abducted, retained or otherwise harmed. Particular attention shall also be paid to the child’s need for close and good contact with both parents. Regard should also be given to the wishes of the child while taking into account the age and maturity of the child (Chapter 6, Section 2 a, of the Code).
59. A child shall have the right to access with a parent with whom he or she is not living. Access may take place by the child and the parents seeing each other or by other kinds of contact. The child’s parents have a joint responsibility to ensure that, as far as possible, the child’s need for access to a parent with whom he or she is not living is met. If both parents have custody of the child and the child is to have access to a parent with whom he or she is not living, the other parent shall provide such information about the child as will promote access, unless there are special reasons to the contrary. If the child is to have access to a parent who does not have custody or with some other person who is particularly close to the child, the information referred to in the previous sentence shall be provided by the person with custody (Chapter 6, Section 15, of the Code).
60. The courts may decide that particular conditions or directions shall apply to the right of access, such as the presence of a contact person or where the contact should take place. However, according to the Supreme Court such directions shall be decided only in exceptional cases since too detailed directions may lessen the parents’ will to cooperate. Directions may be given if, without them, the contact would not take place at all or would only take place to a lesser extent contrary to the child’s interests.
61. Prior to 1 July 2006 it was not explicitly stated in the Code that access could take place by means of contact other than direct contact between the child and parent, such as telephone or letters. Normally, the parents should be able to agree on the extent of such indirect contact. The municipalities also assist in reaching agreements on such contact. However, through the introduction of the new provision in Chapter 16, Section 15, of the Code, the courts have been enabled to decide that access is to take place in some other way than by the child meeting with the parent. The aim is to provide, in exceptional cases, a way of bringing about contact between a child and a parent when direct access is not an option. This may be the case for instance when the child and the parent live a considerable distance from each other or when the freedom of movement of the parent is restricted as a result of a prolonged hospital stay or similar circumstance (see Government Bill 2005/2006:99, p. 55.)
62. According to the rules on right to access, it is in the child’s best interests to have close and good contact with both parents in most cases. However, that does not mean that the child must have contact with a parent in all circumstances. A child must have an absolute right not to be subjected to violence, abuse or other degrading treatment. It is also well known that a child’s psychological health may be endangered if the child has to see or hear domestic violence. Accordingly, the courts and social authorities shall pay particular attention to the risk of violence and other kinds of abuse directed against a child or other members of the family, and the finding of such a risk shall weigh heavily in the overall assessment of what is in the best interests of the child in a particular case. The result of the assessment may be that it is best for the child not to have any contact at all, to have contact, inter alia, in the presence of a contact person or that access should be established when the child has reached a mature age (see Government Bill 2005/2006:99. p. 42.)
63. The UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan, 17 December 2010 (“UNHCR 2010 Afghanistan Guidelines”) observed, inter alia, under “I. Introduction”:
“... In light of the worsening security environment in certain parts of the country and the increasing number of civilian casualties UNHCR considers that the situation can be characterized as one of generalized violence in Helmand, Kandahar, Kunar, and parts of Ghazni and Khost provinces. Therefore, Afghan asylum-seekers formerly residing in these areas may be in need of international protection under broader international protection criteria, including complementary forms of protection. In addition, given the fluid and volatile nature of the conflict, asylum applications by Afghans claiming to flee generalized violence in other parts of Afghanistan should each be assessed carefully, in light of the evidence presented by the applicant and other current and reliable information on the place of former residence. This latter determination will obviously need to include assessing whether a situation of generalized violence exists in the place of former residence at the time of adjudication.
UNHCR generally considers internal flight as a reasonable alternative where protection is available from the individual’s own extended family, community or tribe in the area of prospective relocation. Single males and nuclear family units may, in certain circumstances, subsist without family and community support in urban and semi-urban areas with established infrastructure and under effective Government control. Given the breakdown in the traditional social fabric of the country caused by decades of war, massive refugee flows, and growing internal migration to urban areas, a case-by-case analysis will, nevertheless, be necessary.
In light of the serious human rights violations and transgressions of international humanitarian law during Afghanistan’s long history of armed conflicts, exclusion considerations under Article 1F of the 1951 Convention may arise in individual claims by Afghan asylum-seekers. Careful consideration needs to be given in particular to the following profiles: (i) members of the security forces, including KHAD/WAD agents and high-ranking officials of the communist regimes; (ii) members and commanders of armed groups and militia forces during the communist regimes; (iii) members and commanders of the Taliban, Hezb-e-Islami Hikmatyar and other armed anti-Government groups; (iv) organized crime groups; (v) members of Afghan security forces, including the NDS; and (vi) pro-Government paramilitary groups and militias.”
“It is widely documented that ethnic-based tension and violence have arisen at various points in the history of Afghanistan. Since the fall of the Taliban regime in late 2001, however, ethnically-motivated tension and violence have diminished markedly in comparison to earlier periods. Notwithstanding the foregoing and despite constitutional guarantees of “equality among all ethnic groups and tribes” certain concerns remain. These include, inter alia, ethnic discrimination and clashes, particularly in relation to land use/ownership rights.
Afghanistan is a complex mix of ethnic groups with inter-relationships not easily characterized. For different historical, social, economic and security-related reasons, some members of ethnic groups now reside outside areas where they traditionally represented a majority. This has resulted in complex ethnic mosaic in some parts of the country, notably the northern and central regions, and in the major cities in the west, north and centre of Afghanistan. Consequently, an ethnic group cannot be classified as a minority by simply referring to national statistics. A person who belongs to a nationally dominant ethnic group - such as Pashtuns and Tajiks - may still face certain challenges relating, at least in part, to his or her ethnic association, in areas where other ethnic groups predominate. Conversely, a member of an ethnic group constituting a minority at the national level is not likely to be at risk in areas where the ethnic group represents the local majority. The issue of ethnicity may feature more prominently where tensions over access to natural resources (such as grazing land and water) and political/tribal disputes occur, or during periods of armed conflict ...
As an example, one of the groups affected are the Pashtuns, who have been uprooted in large numbers by ethnic violence in the north and the west of the country following the collapse of the Taliban regime. Pashtuns throughout northern Afghanistan, where they constitute an ethnic minority, have since been subject to discrimination, arbitrary arrests, violence and reprisal killings by non-Pashtun militias and groups because of their (perceived) association with the former Taliban regime, whose leadership consisted mostly of Pashtuns from southern Afghanistan. Political power in the north reportedly still rests with local powerbrokers associated with the (Tajik-dominated) Northern Alliance, who are reluctant to allow the sustainable reintegration of Pashtun returnees or provide for their protection. As such, formerly displaced Pashtuns may be unable to recover their land and property upon return to their area of origin...
Marginalized during the Taliban rule, the Hazara community continues to face some degree of discrimination, despite significant efforts by the Government to address historical ethnic tensions. Notwithstanding the comparatively stable security situations in provinces and districts where the Hazara constitute a majority or a substantial minority, such as Jaghatu, Jaghori and Malistan districts in Ghazni province, the security situation in the remainder of the province, including on access routes to and from these districts, has been worsening ...
However, the mere fact that a person belongs to an ethnic group constituting a minority in a certain area does not automatically trigger concerns related to risks on the ground of ethnicity alone. Other factors including, inter alia, the relative social, political, economic and military power of the person and/or his and her ethnic group in the area where fear is alleged may be relevant. Consideration should also be given to whether the person exhibits other risk factors outlined in these Guidelines, which may exacerbate the risk of persecution. In the ever-evolving context of Afghanistan, the potential for increased levels of ethnic-based violence will need to be borne in mind.”
65. In respect of “Internal Flight or Relocation Alternative” it was set out, among other things:
“A detailed analytical framework for assessing the availability of an internal flight or relocation alternative (IFA/IRA) is contained in the UNHCR Guidelines on International Protection No. 4: “Internal Flight or Relocation Alternative” Within the Context of Article 1A(2) of the 1951 Convention and/or 1967 Protocol Relating to the Status of Refugees ...
Whether an IFA/IRA is “reasonable” must be determined on a case-by-case basis, taking fully into account the security, human rights and humanitarian environment in the prospective area of relocation at the time of the decision. To this effect, the following elements need to be taken into account: (i) the availability of traditional support mechanisms, such as relatives and friends able to host the displaced individuals; (ii) the availability of basic infrastructure and access to essential services, such as sanitation, health care and education; (iii) ability to sustain themselves, including livelihood opportunities; (iv) the criminality rate and resultant insecurity, particularly in urban areas; as well as (v) the scale of displacement in the area of prospective relocation ...
In light of the foregoing, UNHCR generally considers IFA/IRA as a reasonable alternative where protection is available from the individual’s own extended family, community or tribe in the area of intended relocation. Single males and nuclear family units may, in certain circumstances, subsist without family and community support in urban and semi-urban areas with established infrastructure and under effective Government control. A case-by-case analysis will, nevertheless, be necessary given the breakdown in the traditional social fabric of the country caused by decades of war, massive refugee flows, and growing internal migration to urban areas.”
66. According to the World Health Organisation’s Mental Health Atlas, 2005, on Afghanistan, mental health was not covered by the primary health care system. Four Community Mental Health Centres had been established in the capital and there were two general psychiatric rehabilitation centres with one hundred and sixty beds. There were only very few trained psychiatrists. Most doctors working as psychiatrists had either had in-service training or had attended short courses abroad. Psychologists were trained at Kabul University. Much of the qualified manpower and technical expertise had left the country. NGOs were involved with mental health in the country. The following therapeutic drugs were generally available at the primary health care level of the country: carbamazepine, phenobarbital, amitriptyline, hlorpromazine, diazepam and haloperidol. The cost of medicines kept fluctuating due to the effect of war on the stability of the local currency. Over-the-counter sales of psychotropic drugs occurred.
67. In an article published by Canadian Women for Women in Afghanistan in May 2011 (http://www.cw4wafghan.ca/MentalHealth) it was stated, inter alia:
“Afghanistan reportedly has only 42 psychologists and psychiatrists in the entire country. In the capital, the Ministry for Public Health manages the Kabul Psychiatric Hospital, founded around 1985, which also includes inpatient services for men and women, and a drug treatment centre called the Jangalak Substance Misuse Centre. In 2009, this centre saw more than 800 inpatients suffering from drug addiction, mainly heroin and opium addiction (International Medical Corps, IMC, 2011). The hospital, long notorious for its dilapidated and unhygienic state, has only 60 beds; while experts say at least a 300-bed facility is needed. It was also criticized in a 2010 assessment by the IMC for not providing follow-up treatment post-discharge and for the high relapse rates of addicts and mental health patients. In 2010, over 6,400 patients were admitted to the hospital and 21,000 patient consultations took place (of which nearly half were treated for depression and 5,000 treated for psychosis), which remains the only mental health hospital in the country, despite announcements by the Minister of Public Health back in 2006 that 30-bed mental health hospitals would be opened in every region of the country, in addition to 20-bed hospitals in every province, and 10-bed clinics in every district. As of early 2011, the Ministry of Public Health had no plans in place to construct a new hospital in Kabul; however, in 2010, the European Commission moved ahead with plans to design a program to support the existing hospital and to build the capacity of the 128 hospital personnel. The program will be implemented by the international NGO, International Medical Corps.
... tertiary care facilities like the 60-bed mental health Hospital and 40-bed Jangalak detox center, which are mandated to accept patients from across Afghanistan, lack the resources, space, qualified personnel and internal systems to provide appropriate, humane care for patients.” – International Medical Corps in Afghanistan, February 23, 2011.
The Ministry of Mental Health currently operates a mental health training program with funding from the European Union and Caritas, with plans to expand it to four hospitals in the northern region of the country in 2011. In Afghanistan, there is no dedicated university faculty to train mental health personnel; however, International Medical Corps announced in February 2011 its plans to work with the Ministries of Higher Education and Public Health “to improve advanced psychiatric education at medical universities in Afghanistan” (IMC website).
NON_VIOLATED_ARTICLES: 3
8


ITEMID: 001-57909
LANGUAGEISOCODE: ENG
RESPONDENT: ESP
BRANCH: CHAMBER
DATE: 1994
DOCNAME: CASE OF RUIZ TORIJA v. SPAIN
IMPORTANCE: 2
CONCLUSION: Preliminary objection rejected (non-exhaustion);Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: C. Russo
TEXT: 7. Mr Eusebio Ruiz Torija is a Spanish national and lives in Madrid.
8. He had been the lessee of a bar in Madrid since 1960, when in 1988 the lessor instituted proceedings in Madrid no. 15 First-Instance Court for the termination of the lease and his eviction (desahucio). According to the lessor, the installation on the premises of gaming machines belonging to a third party, without the landlord’s consent, amounted to an unauthorised partial assignment or subletting and constituted one of the statutory grounds for terminating a lease (see paragraph 13 below).
9. In his statement of defence the applicant’s main contentions were that the installation of the machines had been lawful and that the plaintiff had acted in bad faith. At the end of his legal arguments, he added:
"Finally, [I invoke] the fifteen-year limitation period for actions in personam, which is provided for in Article 1964 of the Civil Code [see paragraph 15 below]. Under Article 1969 time begins to run for this purpose on the day on which the action could have been brought. In the period of over twenty-eight years since the signing of the lease, [I] was able, at any time and hitherto without any objection on the part of the lessor, to provide this type of service, common in this kind of establishment, in the form of the amusement machines of all sorts which appeared successively on the market, such as juke-boxes, bar-football, billiards, children’s games, etc."
10. On 13 February 1989 the first-instance court dismissed the lessor’s action on the ground that the installation of gaming machines could not be regarded as an assignment or a subletting and did not therefore amount to a breach by Mr Ruiz Torija of his contractual obligations. The court did not examine the objection that the action was time-barred.
11. On appeal by the lessor, opposed by the applicant as a respondent (see paragraph 16 below), the Madrid Audiencia Provincial gave judgment on 30 January 1990 quashing the impugned decision and allowing the action for the applicant’s eviction (see paragraph 17 below), without ruling on the question whether the action was time-barred. It found that the owner of the machines was a third party, who was responsible for the maintenance of the machines and who passed on half the proceeds therefrom to the applicant. This was a situation which fell within the legal definition of an unauthorised assignment or subletting and amounted to the breach of contract relied on by the lessor.
12. As it was not open to him in this case to appeal on points of law to the Supreme Court, Mr Ruiz Torija filed an amparo appeal in the Constitutional Court (Tribunal Constitucional) under Article 24 para. 1 of the Constitution (see paragraph 18 below).
By a decision of 29 October 1990 the Constitutional Court declared the appeal inadmissible. It found that it could reasonably be inferred from the judgment appealed against that the examination of the merits of the action for termination of the lease entailed the implied dismissal of the submission that the action was time-barred.
13. Under the Act of 22 December 1955 on non-agricultural leases (Ley de Arrendamientos Urbanos), a landlord may terminate a lease in the event of a partial assignment or subletting of the premises to a third party without his authorisation (Article 114 para. 2). The Act also makes provision for a special eviction procedure (juicio de desahucio), with shorter time-limits and more limited possibilities of adducing evidence.
14. Gaming machines could not be installed legally in Spain in premises open to the public until 1977 (Royal Legislative Decree of 25 February 1977 on criminal, administrative and fiscal aspects of gambling, supplemented by Royal Decree no. 444 of 11 March 1977 on the powers of the public authorities in this field and by the Regulation of 24 July 1981 concerning recreational machines and machines offering "games of chance").
15. On account of the personal nature of the rights deriving from a lease, the actions relating thereto are barred after fifteen years (Article 1964 of the Civil Code).
The objection that an action is time-barred is not one of the pleas designated as "dilatorias", which must be determined before the examination of the merits (Article 533 of the Code of Civil Procedure). It is a plea described as "perentoria", which, in accordance with Article 544, is to be determined at the same time and under the same procedure as the main issue in the dispute.
16. Plaintiffs who have been unsuccessful on at least one head of claim adduced at first instance may appeal to the Audiencia Provincial. The defendant, for his part, may
(a) either confine himself to appearing as respondent in order to oppose the appeal and seek to have the impugned judgment upheld (right deriving from Article 888 of the Code of Civil Procedure and the articles relating thereto); or
(b) himself file a separate appeal against the first-instance decision (Article 702 in fine of the Code of Civil Procedure) where that decision has not allowed his claims in full; or
(c) join the appeal already lodged (adhesión a la apelación - Articles 705 and 892 of the Code of Civil Procedure), in respect of the points of the judgment that he considers unfavourable to him. This procedure is a form of appeal that enables the party concerned to prevent non-contested points of the operative provisions from acquiring final effect and to have examined those which are unfavourable to him.
Consequently, if a judgment allows the claims of a party in their entirety, that party can oppose an appeal filed by his opponent only as the respondent to that appeal. He cannot file an appeal himself or even "join" the appeal lodged by the other party.
17. When the appeal concerns all the operative provisions of the judgment and is successful, the appeal court gives a new decision on the merits of the case, examining all the submissions adduced at first instance.
18. Under Article 120 para. 3 of the Constitution, "judgments shall always contain a statement of the grounds on which they are based and be delivered in public". As an aspect of the effective protection of individuals by the judiciary and the courts, recognised as a fundamental right by Article 24 para. 1 of the Constitution, the obligation to state the reasons for judicial decisions may be the subject of an individual appeal to the Constitutional Court (recurso de amparo).
19. According to Article 359 of the Code of Civil Procedure:
"Judgments must be clear and precise and must address specifically the applications and other claims made in the course of the proceedings; they must find for or against the defendant and rule on all the disputed points which have been the subject of argument.
Such points must be dealt with separately in the judgment."
When a court gives a decision on the merits it must therefore rule on all the submissions adduced by the parties, otherwise the judgment will be flawed for failure to give an adequate statement of the grounds (incongruencia omisiva). However, according to the case-law, the court is not under a duty to deal expressly in its judgment with each of the submissions made by the parties where its decision to allow one of the claims entails by implication the rejection of the submission in question.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1