CASE OF NACIC AND OTHERS v. SWEDEN
No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Serbia);No violation of Article 8 - Right to respect for private and family life (Article 8 - Expulsion;Article 8-1 - Respect for family life)
André Potocki;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger
7. The first applicant is Mr Sladjan Nacic born in 1969, the second applicant is Mrs Jelena Nacic born in 1971, and the third and fourth applicants are their sons, born in 1991 and 1994. They are currently in Sweden. 8. The applicants are of Roma descent and lived in the village of Kosovo Polje. Following the outbreak of war in 1999, the first applicant refused to participate in the fighting and hid from the armed forces. Due to this, the other applicants were subjected to threats and beatings by Serbian military. Finally, they were driven out of their home by Albanian militia. They fled by train to Suvi Do, another village in Kosovo. On their way, they lost a bag containing their passports and identification papers. They hid at a friend’s home, where they remained completely isolated from the world until they travelled to Sweden in 2006. They had felt harassed in Kosovo because of their being Roma, but they had not been subjected to any persecution, allegedly due to their isolation. They applied for asylum and permanent residence permits on arrival. 9. On 13 March 2008 the Migration Board (Migrationsverket) rejected their applications. First, the Board found that the applicants had not proved their identity. By submitting an UNMIK certificate on their residency in Kosovo Polje, they had made it plausible that they were from Kosovo or Serbia. However, the Board found that neither the general situation in Kosovo nor that in Serbia was such that it in itself constituted grounds for granting asylum. Also, the Board found that the applicants were not to be considered as refugees or as in need of any other specific protection. In regard to the applicants’ Roma ethnicity, the Board noted that the first applicant’s mother was Serb, that none of the family members spoke Romani or had any contact with other Roma. In Kosovo, they had lived in Serb areas and had only socialised with Serbs. In the Board’s view, it was difficult to conclude in these circumstances that the applicants would be seen as Roma upon return. Noting, furthermore, that they had not been subjected to any persecution because of their ethnicity previously, the Board concluded that they had failed to show that there was such a risk upon return. 10. The Board went on to assess whether the applicants’ personal situation could constitute a ground for granting residence permits. The first, second and third applicants submitted that they suffered from medical problems. 11. The first applicant claimed that he was hypertonic. The Board found that this was a common medical condition and that he would not be subject to any medical risk if he were to return to Kosovo or Serbia. 12. The second applicant claimed that she suffered from psychological problems and submitted a certificate issued by a nurse on 24 January 2008 and extracts from her medical records covering the period from 12 April to 17 December 2007. The Board found that the certificate had not been issued in accordance with Swedish regulations and did not contain any prognosis. Therefore, it was not able to assess fully the gravity of her condition or what type of care she needed. Nevertheless, it found that her condition was not life-threatening and thus could not constitute a ground for granting a residence permit. 13. The third applicant claimed that he also suffered from psychological problems and submitted a medical certificate issued by a senior physician on 25 January 2008. The Board found that the medical certificate did not contain any diagnosis and that it therefore could not assess whether or not the applicant could receive appropriate medical care in Kosovo or Serbia. The Board noted that treatment for depression was offered both in Kosovo and Serbia. It further noted that the applicant’s health had not improved after he had received treatment in Sweden and that his condition would probably only improve if he were in a more secure and stable environment. 14. The applicants appealed to the Migration Court (Migrationsdomstolen) in Malmö where they held to their earlier submissions and added the following. The whole family moved to a children’s home in July 2008, when the authorities decided that the parents did not have the ability to take care of their children under the existing circumstances. The applicants also submitted several medical certificates regarding the first, second and third applicants. According to the certificates regarding the first and second applicants, there was a risk that they might commit suicide if they were to be expelled from Sweden. Regarding the second applicant, it was stated that she had earlier attempted suicide and that she showed clear signs of post-traumatic stress disorder (PTSD). 15. According to the certificate regarding the third applicant, issued on 27 September 2008 by Ann-Marie Nyberg, specialist in youth psychiatry, he was in a very bad state on arrival in Sweden. He was depressed and could hardly interact with other persons. During the spring of 2007, he was in contact with the Children and Youth Psychiatric Care Unit (Barn- och ungdomspsykiatrin) in Lindesberg, which found that he suffered from depression. His condition improved when he started school and began to play football and also had a contact person assigned. However, after the Migration Board’s decision in March 2008, his depression became worse again. He isolated himself at home and became apathetic. In June 2008, he attempted suicide by overdose of anti-depressants. He was committed to hospital, but discharged after one day. When the family arrived at the children’s home in July 2008, he was in very poor condition, refused to eat solid food and stayed in bed most of the time. There would be a serious risk of another suicide attempt if he were to be expelled from Sweden. 16. On 1 December 2008 the Migration Court rejected the appeal, upholding the Board’s reasoning and conclusion, adding the following. The third applicant would soon be 18 years old. Although he suffered from severe depressive devitalisation, it could not be assumed that his psychosocial development would be damaged if he were to be expelled from Sweden. Also, psychiatric care was available in both Kosovo and Serbia, at least for those who could pay. Therefore, neither the third applicant’s health nor his personal situation were enough to justify granting him a residence permit. This reasoning also applied to the other applicants, who were all in better health. Two of the lay judges delivered a dissenting opinion finding that the third applicant’s health constituted a sufficient reason to grant him a residence permit. Applying the principle of respect for family life, they also found that the rest of the family should be granted a right to stay. 17. The applicants proceeded to the Migration Court of Appeal (Migrationsöverdomstolen) and submitted that they had been subjected to persecution in Kosovo due to their ethnicity and that this had caused their health problems. Their possibilities to receive proper care if sent back were limited, especially regarding the third applicant. Also, they would not have access to the health care system due to their ethnicity. Their health had deteriorated, as allegedly shown by several medical certificates submitted. 18. On 23 November 2009 the Migration Court of Appeal delivered its judgment. Regarding the third applicant, the court found that the medical certificates showed that he suffered from severe mental illness, that he was unlikely to get better in the foreseeable future and that the necessary treatment presupposed that he was in a safe, secure and stable environment. Furthermore, it found that health care was available in both Kosovo and Serbia, but that the applicant’s health issues had arisen due to events taking place there. Considering all this, the court quashed the lower court’s judgment and granted him a permanent residence permit. Regarding the other applicants, it upheld the lower court’s reasoning and decision. 19. Two dissenting opinions were attached to the appellate court’s judgment. In the first, one of the judges held that the third applicant had recently turned 18 years old, that he therefore should be regarded as an adult and that his circumstances should be assessed separately from the other applicants. Taking this into account, and also the fact that proper health care would be available to him in Kosovo or Serbia, the judge found that he had no right to remain in Sweden. He should therefore be expelled together with the other applicants. 20. In the second dissenting opinion, another judge held that the medical certificates clearly showed that the first, second and third applicants in particular suffered from severe mental illness. The documents available also showed that the condition for the third applicant’s well-being was a safe, secure and stable environment. Although he had turned 18, the family’s situation had to be taken as a whole. Therefore, all of the applicants should be granted permanent residence permits. 21. On 5 February 2010 the applicants lodged a new request for residence permits on the basis that there were impediments to the enforcement of their deportation order. They submitted new medical certificates and argued that their conditions had worsened. On 24 February 2010 the Migration Board rejected the request as it found that the applicants had invoked no new circumstances of importance and that there were no impediments to the enforcement of the first, second and fourth applicants’ deportation order. Moreover, as the third applicant had reached the age of majority, they could no longer be granted residence permits on account of family ties to him. 22. On 18 March 2010 the applicants requested the Court to indicate to the Swedish Government under Rule 39 of the Rules of Court a suspension of the first, second and fourth applicants’ deportation to Kosovo or Serbia. 23. On 23 March 2010, the applicants submitted new medical certificates concerning the first, the second and the third applicants. The certificates were issued jointly by Ann-Marie Nyberg, specialist in youth psychiatry, Anna-Karin Klenell-Hjerm, psychologist and psychotherapist, and Teija Jyrinki Kärkkäinen, trained social worker and psychotherapist and were dated December 2009. The medical certificate regarding the first applicant stated that he suffered from grave depression, insomnia and eating disorders. He had suicidal tendencies, but had not made any suicide attempts out of concern for his children. The diagnosis was grave depression and complex PTSD. According to the medical certificate regarding the second applicant, her condition was serious and possibly fatal and she would not be able to cope with a separation from her son. The prognosis was that all treatment presupposed a safe, secure and stable environment. She was diagnosed with grave depression, depressive devitalisation and complex PTSD. The medical certificate regarding the third applicant stated that he was in need of professional therapy to be able to deal with his traumatic experiences. It was not possible for him to cope without the support of his family. If his parents and his brother were to be returned to Kosovo or Serbia, there was a grave risk that his depression would become worse and that his rehabilitation would be compromised. He was diagnosed with grave depression, depressive devitalisation and complex PTSD. 24. On 16 June 2011, the applicants submitted new medical certificates issued by Ann-Marie Nyberg and dated June 2011. According to these, the first applicant had been feeling slightly better since the family had moved from the children’s home to an apartment in Trollhättan in December 2010. However, he still suffered from feelings of futility and despair. The second applicant had been feeling better since the Court’s decision not to deport them until further notice. However, she had recently been feeling worse again due to her fear of a possible deportation. She still suffered from severe depression and PTSD and was worried about the third applicant’s health. The third applicant had gradually been feeling better since he had been granted a residence permit. However, his positive development had been halted by the threat of disruption of the family and he showed clear signs of falling into depression again. The fourth applicant had, due to his young age, been spared the traumatic experiences in Kosovo. However, according to the medical certificate, a disruption of the family could be expected to cause him a severe trauma. 25. The basic provisions mainly applicable in the present case, 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”), as amended on 1 January 2010. The following refers to the Aliens Act in force at the relevant time. 26. 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). 27. Moreover, if a residence permit cannot be granted on the above grounds, such a permit may be issued to an alien if, after an overall assessment of his or her situation, there are such particularly distressing circumstances (synnerligen ömmande omständigheter) to allow him or her to remain in Sweden (Chapter 5, section 6 of the Aliens Act). 28. As regards the enforcement of a deportation or expulsion order, account has to be taken of the risk of capital punishment or torture and other inhuman or degrading treatment or punishment. According to a special provision on impediments to enforcement, an alien must not be sent 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 (Chapter 12, Section 1, of the Aliens Act). In addition, an alien must not, in principle, be sent to a country where he or she risks persecution (Chapter 12, Section 2, of the Aliens Act). 29. 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). 30. It should also be noted that Chapter 1, Section 2 of the Aliens Act defines a child as a person under 18 years of age. 31. Under the Aliens Act, matters concerning the right of aliens to enter and remain in Sweden are dealt with by three instances; the Migration Board, the Migration Court and the Migration Court of Appeal (Chapter 14, Section 3, and Chapter 16, Section 9, of the Aliens Act). 32. The U.S. Department of State 2010 Country Reports on Human Rights Practices, states, inter alia, the following regarding the situation in Kosovo: “Institutional and societal discrimination persisted against Kosovo Serb, Roma, Ashkali, and Egyptian communities in employment, education, social services, language use, freedom of movement, the right to return, and other basic rights. Members of the Kosovo Bosniak and Gorani communities also complained of discrimination, while Kosovo Croat and Kosovo Montenegrin communities were nominally acknowledged through appointment of their representatives to the Kosovo president’s Communities’ Consultative Council. Kosovo Bosniak leaders continued to complain that many of their community members continued to depart the country as a result of discrimination and, increasingly, an absence of economic opportunities. Members of the Roma, Ashkali, and Egyptian communities were subject to pervasive social and economic discrimination; often lacked access to basic hygiene, medical care, and education; and were heavily dependent on humanitarian aid for survival. Reports of violence and other crimes directed at minorities and their property persisted. There were clashes between groups of Kosovo Albanians and Kosovo Serbs during the year.” 33. The International Organisation for Migration’s report “Returning to Kosovo, country information” from 1 December 2009 provides the following: “The public health care system in Kosovo is still in a phase of post-war reconstruction. The rehabilitation of the mental health system is one of the priorities of the MoH [...]. However, the system faces many challenges. The number of mental health professionals is very limited and the present educational system for mental health is underdeveloped. Existing institutions also have limited access modern know-how in psychiatry. Nevertheless, there is a favourable environment for accelerating reforms, supported by the Mental Health Strategy 2008-2011 of the MoH. The mental health needs of the severely traumatised population are very high but there is only one psychiatrist for 90,000 inhabitants and one mental health worker for 40,000 inhabitants. There are only five clinical psychologists and a small number of social workers. The psychiatric treatment provided is biologically-oriented, using pharmaceuticals and hospitalisation as the main, if not the only, tools. This sector suffers also from the destruction of medical equipment during and since the conflict in 1999. Treatment of post-traumatic stress disorder (PTSD), which became a matter of the greatest importance after the wars in Yugoslavia and the turmoil in Kosovo in March 2004, is in desperate need of improvement. Some calculations suggest that 140,000 to 200,000 people (an estimated 7-10% of the population) are suffering from PTSD. The mental health care system in Kosovo simply does not have sufficient resources of people or facilities to respond to the need for treatment for mental health disorders. Because of the lack of clinical psychologists and psychiatrists, there is almost no time for psychotherapy. The extreme lack of beds for chronically mentally ill people, and the lack of forensic psychiatry services aggravate the problem. There is only one child psychiatrist in the public health service to provide adolescent mental health services for a population that is overall very young. Drug addiction is also a growing problem without an adequate solution because of the lack of specialised professionals and institutions. However, with international support, new facilities, called “Houses of Integration”, have been opened in Gjakovë/Djakovica, Gjilan/Gnjilane, Prizren, Mitrovicë/a and Drenas/Gllogovac. These facilities offer protected apartments for people with minor mental health problems, as well as therapeutic and psycho-social support. In 2006 the new Intensive Care Psychiatric Unit (ICPU) of the UCC in Prishtinë/Priština became operational. This facility is intended to offer psychiatric treatment to people with severe mental health problems. The Swiss Red Cross and the Psychiatric University of Basel (Switzerland) will provide training support to the ICPU. Community Mental Health Centres offer community-based outpatient mental health services and can be found in the following cities: Gjakovë/Djakovica, Mitrovicë/a, Ferizaj/Uroševac, Prizren, Pejë/ Peć, Prishtinë/Priština, Gjilan/Gnjilane There are neuropsychiatry wards at general hospitals for acute psychiatry in: Prizren, Pejë/Peć, Gjakovë/Djakovica, Mitrovicë/a, Gjilan/Gnjilane, Prishtinë/Priština In Prishtinë/Priština the neuropsychiatry ward is at the UCC. The ward in Prishtinë/Priština provides 75 acute psychiatric beds, while wards in other regions provide around 16 beds for psychiatric patients. In addition, there are special institutions (SSI) in Prishtinë/Priština and Shtime/Štimlje. These institutions come under the mandate of the Ministry of Labour and Social Welfare (MLSW). They were intended to provide services to a specific population with severe learning difficulties during the previous regime but they ended up accommodating about 70 people with psychiatric problems. The mental health services, through the programme of protected apartments, are supporting the de-institutionalisation of patients in Gjilan/Gnjilane and Gjakovë/Djakovica, which are designed for the rehabilitation of long-term psychiatric patients. The MLSW has its own programme to improve the quality of life in the institutions.” 34. The Non-Governmental Organisation Praxis report “Access to rights and integration of returnees on the basis of readmission agreements, analysis of the main problems and obstacles” provides, inter alia, the following regarding the health care for Roma in Serbia: “Health care In order for a person in the Republic of Serbia to exercise the right to health care, he/she needs to be registered in the system of mandatory health insurance and to possess a health booklet. In addition to the proof of insurance (employment contract, decision on the right to pension, etc.), one needs to present an ID card or a birth certificate (for minors) in order to register for insurance and issuance of a health booklet. The request is submitted at the branch office of the Republic Institute for Health Insurance (RIHI) as per place of permanent/temporary residence. The Law on Health Insurance identifies Roma, who do not have a registered permanent/temporary residence in Serbia, as a category of persons for whom contributions are paid from the budget of the Republic. However, the Rulebook on the Method and Procedure of Exercise of Rights from Mandatory Health Insurance in effect until July 2010 stipulated that when applying for registration to health insurance, Roma must give a statement on belonging to this population, and the proof of temporary residence registration in addition to it. As the said regulation was in contravention of the Law on Health Insurance, Praxis sent a request to the Constitutional Court to assess the legality of this regulation. In July 2010, the Rulebook on Amendments to the Rulebook on the Method and Procedure of Exercise of Rights from Mandatory Health Insurance stipulating that the Roma who do not have permanent/temporary residence registered on the territory of the municipality they truly live in, may register health insurance by giving only a statement about the address at which they truly live in addition to the statement on belonging to the Roma minority. The implementation of these changes in the Rulebook was not uniform. Partly due to inadequate levels of information of employees in RIHI branch offices throughout Serbia, partly due to resistance to the concrete novelties and lack of sensitivity, the branch offices in certain municipalities refused to enable Roma to exercise the right to health insurance and issue health booklets under the above stated conditions. On behalf of its clients, Praxis intervened repeatedly and pointed to the changed regulations, managing to have its clients registered. Also, as the impossibility to register permanent residence makes obtaining ID cards impossible, the RIHI branch offices request that Roma submit at least birth certificates instead of ID cards. Returnees on the basis of the readmission agreements with travel documents are allowed only access to urgent medical care for which the Republic budget funds are allocated, until regulation of the status of an insured person or until the expiry of the validity of the travel document. Returnees who fail to obtain ID cards or birth certificates for children born within the period of validity of the travel document (e.g. re-registration into registry books or registration in birth registry book abroad was not done) will remain outside the health care system. Only exceptionally will some RIHI branch offices issue health booklets to undocumented persons and establish a provisional citizen’s unique personal number.”