KARIM v. SWEDEN
Inadmissible
The applicant, Mr Fazlul Karim, is a Bangladeshi national who was born in 1975 and is currently in Sweden. He is represented before the Court by Ms A. Enochsson, a lawyer practising in Stockholm. The respondent Government are represented by their Agent Mr C.H. Ehrenkrona of the Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. On 25 May 2003 the applicant arrived in Sweden and, on the following day, he applied to the Migration Board (Migrationsverket) for asylum and a residence permit. On 28 May 2003 an initial interview was held with the applicant and, on 15 July 2003, the Migration Board conducted a second interview. During these interviews, the applicant stated that he had been active within the Jatiya Party [Ershad] in the district of Rajshahi where he lived. He had commenced his political activities in 1997 and, in 2000, he became the organisation’s secretary within the district. He had been responsible for organising meetings and demonstrations and for recruiting new members to the party. On 1 July 2002 he had been arrested during a demonstration and had been beaten by the police while being taken to the police station. During his detention, he had been tortured two to three times per day. He had, inter alia, been beaten all over his body with sticks, suspended with his hands and feet tied from a pipe, burnt with cigarettes and had had water mixed with chilli thrown in his face. He had been told that the ill-treatment would continue until he stopped his political activities. After he had been detained for 26 days, one of the leaders of the Jatiya Party [Ershad] had managed to get him out. He had been arrested a second time, on 10 January 2003, in connection with a meeting in one of the party’s offices. He had been detained for 30 days before his father had managed to bribe the police, paying 500,000 Bangladeshi Taka (around EUR 6,500), to get him released. Also this time he had been badly tortured and had had to stay at a private hospital for one week following his release to get treatment for his injuries. He had not reported the torture to the authorities since it was the police and supporters of the governing party who had carried it out. The police had also ordered him to present himself at the police station twice a month but he had only done so on one occasion. However, he had continued his political activities and, on 5 March 2003, the police and some supporters of the governing party had come to his home, looking for him. As he had not been at home, they had destroyed his belongings and had harassed his father, saying that they would kill the applicant should they find him. Following this, the applicant had gone into hiding. On 10 March 2003 a supporter of the governing party had been murdered in his neighbourhood and the applicant claimed that he had been accused of the murder as yet another means of persecuting him because of his political affiliation. Due to these incidents, he had travelled to some relatives in Dhaka who had arranged for him to leave the country with the help of smugglers, to whom the applicant’s father had paid 800,000 Taka (around EUR 10,500). The applicant alleged before the Migration Board that he would be arrested and tortured if he was returned to Bangladesh and that the political persecution of him would continue. To support his claims, he submitted a medical certificate from Bangladesh made by Dr. Serajul Islam at the Raj Clinic in Rajshahi. It stated that the applicant had been cared for at the hospital between 11 and 18 February 2003 as he had scars and wounds after receiving blows to his body. He had been given antibiotics and painkillers, as well as medication to subdue his anxiety. The applicant also relied on a certificate from the District Secretary, Mr Muklesur Rahman, of the Jatiya Party [Ershad] in Rajshahi which stated that he had been very active within the party and had been arrested and tortured on two occasions. The applicant further invoked medical certificates from Sweden from which it appeared that he had been admitted to psychiatric care between 26 June and 8 August 2003, and thereafter had been in regular contact with the psychiatric service for asylum seekers in Stockholm. He had been diagnosed as suffering from post traumatic stress disorder (PTSD) and depression. In a submission of 18 September 2003, the applicant claimed that he had been raped and subjected to serious sexual abuse while in detention in Bangladesh and that he had repeated flashbacks and nightmares from the abuses. He stated that he had been too ashamed and afraid to recount these events during the interviews with the Migration Board. On 8 December 2003 the Migration Board rejected the application. It first noted that the general situation in Bangladesh was not good but that it was not such that it could grant the applicant asylum solely on this basis. The Migration Board did not question that the applicant had been involved in the Jatyia Party [Ershad] in the Rajshahi district or that he had been the victim of abuse and torture, which it regarded as serious. However, the Migration Board considered that the applicant’s political involvement had been on a local level and that he had not held a prominent position within the party. Moreover, the harassment and abuse of which he had been the victim seemed to be personal aggressions from supporters of the governing party and police officers who had acted on their own initiative. Thus, it found that the abuses were not sanctioned by the Bangladeshi authorities and that the applicant would not be of interest to the authorities because of his political involvement. Consequently, he would not face a real risk of torture or ill-treatment if returned to his home country. Furthermore, with regard to the applicant’s claim that he had been accused of murder, the Migration Board considered that he would have the opportunity to defend himself in a court of law and that the legal system in Bangladesh worked relatively well. Even if he were to be convicted in the first instance, he could appeal to the higher courts in Bangladesh which were considered to be independent and fair. In these circumstances, the applicant could not be granted asylum in Sweden. As concerned the applicant’s mental health, the Migration Board noted that, in October 2003, he had requested to be exempt from having a working permit in order to be able to work in Sweden. The Board considered this as a sign of improvement of the applicant’s health. Moreover, it observed that there was psychiatric care available in Bangladesh where the applicant should be able to get adequate treatment. The Board further found that the applicant was not suffering from a serious mental disorder or any other disorder of such a serious nature that he could be granted leave to stay in Sweden based on humanitarian grounds. The applicant appealed to the Aliens Appeals Board (Utlänningsnämnden), maintaining his claims and adding that, although torture was prohibited by Bangladeshi law, it was widespread. Moreover, the Bangladeshi authorities sanctioned persecution of political opponents and, if he was prosecuted for murder, he would risk being kept in detention for a very long time before the case was heard by the courts. The applicant further stated that he had continuous nightmares about the torture and the sexual abuse of which he had been a victim, and had serious thoughts of suicide. According to him, his friends had to keep an eye on him all the time. He relied on medical certificates which supported his statements concerning his poor mental health. On 22 April 2004 the Aliens Appeals Board rejected the appeal. It shared the Migration Board’s reasoning and conclusion that the applicant could not be granted asylum. With regard to his poor mental health, the Aliens Appeals Board noted that he was not undergoing regular treatment except that he met with a nurse for counselling. Thus, it found that the applicant was not in such poor health that he could be granted a residence permit on humanitarian grounds. In October 2004 the applicant lodged a new application for a residence permit on humanitarian grounds, invoking his continuously deteriorating mental health. He relied on medical certificates from the Crisis and Trauma Centre which confirmed that he had been subjected to grave and systematic torture, and that it had caused him to develop PTSD with a psychotic strain. He was considered to be in need of extensive treatment. Moreover, between April and September 2004, he had been admitted to psychiatric care on several occasions (6-11 May 2004, 19 May-7 June 2004, 5-12 July 2004, 10-12 August 2004 and 28-30 September 2004) because he had been considered to be suicidal. On 19 October 2004 the Aliens Appeals Board decided to stay the enforcement of the deportation of the applicant until further notice. It further requested an independent physician (förtroendeläkare) to examine the applicant and to submit her observations and conclusions to the Board. On 19 November 2004 the physician, Dr A. Voltaire Carlsson, a specialist in psychiatry, submitted her findings which were based on a personal examination of the applicant and access to all his medical journals and certificates. She observed that the applicant suffered from flashbacks from the torture and rape, and that he blamed himself for the abuses. Moreover, he was constantly anxious and depressed but the psychiatrist found no sign of psychotic symptoms or paranoia. However, his health had not improved and, although he had never injured himself, he had expressed suicidal thoughts and plans. Thus, she considered that a risk of suicide in the future could not be excluded and she concluded that there existed certain impediments against the enforcement of the deportation order. In response to the independent physician’s conclusion, two of the applicant’s regular physicians, Dr G. Roth and Dr H.P. Søndergaard, replied that they considered that there were clear and absolute impediments against the enforcement of the deportation order since the applicant suffered from grave PTSD and depression, and because there was a real risk that he would try to commit suicide. On 31 January 2005 the Aliens Appeals Board rejected the new application. It first noted that the applicant had only invoked humanitarian grounds based on his poor mental health and that it was only in exceptional cases that leave to stay could be granted on that basis. The Aliens Appeals Board found that the medical certificates and the independent physician’s report did not show that the applicant had a serious mental disorder for which a residence permit should be granted on medical grounds. It considered that the applicant could receive proper treatment in his home country and noted that his relatives remained there. Thus it concluded that it would not violate the standards of humanity to deport him to Bangladesh. The applicant then lodged another new application with the Aliens Appeals Board. He stated that, since the last rejection, he had been admitted to psychiatric care on three occasions (4-8 February 2005, 11-23 February 2005 and 17-21 March 2005) due to a high risk of suicide. His treating physicians considered that he suffered from a serious and complicated psychiatric disorder due to his traumas in his home country and that there was an absolute impediment to the enforcement of his deportation order. On 13 April 2005 the Aliens Appeals Board rejected the new application on the grounds that the applicant had invoked no new circumstances of relevance. As the applicant refused to leave Sweden voluntarily and went into hiding to avoid deportation, the Migration Board, on 10 June 2005, transferred the responsibility for implementing the deportation order to the police authority. On 1 July 2005 the applicant lodged yet another new application with the Aliens Appeals Board because he had, once again, been admitted to psychiatric care. On 4 July 2005 the Aliens Appeals Board decided not to stay the enforcement of the deportation order. However, on 6 July 2005, following the Court’s indication under Rule 39 of the Rules of Court, the Migration Board decided to stay the deportation of the applicant until further notice. The Migration Board’s decision is still in force. On 5 January 2006 the Court adjourned the case at the request of the Swedish Government following the enactment of an interim amendment to the Swedish Aliens Act, on the basis of which the applicant’s case would be reviewed. On 6 April 2006 the applicant informed the Court that, on 27 March 2006, the Migration Board had decided not to grant him a residence permit in Sweden on the basis of the interim amendment to the Aliens Act. The Migration Board had concluded that the applicant could not be granted leave to stay on medical grounds and that he could get adequate care in his home country. According to a medico-legal protocol, dated 26 August 2004, and a medico-legal certificate, dated 8 September 2004, both by Dr E. Edston, a specialist in forensic medicine at the Crisis and Trauma Centre, the applicant had a large number of scars on his body, some of which were typical after burning and severe violence (skarpt våld). It was considered very unlikely that the applicant could have caused these injuries himself or that they were the result of accidents. Instead, the findings confirmed that he had been tortured as he had claimed. With regard to the applicant’s mental health, he has submitted several medical reports from the aforementioned psychiatrists (Drs Søndergaard, Roth and Voltaire Carlsson) dating from September 2004 to February 2006, as well a report dated 30 June 2005 from Dr J. Guterstam, assistant physician, and Dr O. Broström, chief physician at the Karolinska Hospital. According to these reports, the applicant was admitted for psychiatric care for the first time between 26 June and 8 August 2003, just one month after his arrival in Sweden on 25 May 2003. Subsequently, he has been admitted to psychiatric care on repeated occasions but for shorter periods, the last time between 30 June and the beginning of July 2005, due to the risk of suicide. However, on no occasion has he been committed to compulsory psychiatric care (tvångsvård), i.e. taken into care against his will. He has had continuous contact with psychiatric services and has had a positive attitude to treatment all along. All the physicians agreed that the applicant suffered from serious PTSD and depression, and that his health had not improved despite the treatment. Dr Roth and Dr Søndergaard also considered that he had a serious and complicated psychiatric disorder, with which diagnosis, however, Dr Voltaire Carlsson disagreed as she had found no signs of psychotic symptoms when examining the applicant. Nevertheless, she considered that a risk of suicide could not be excluded, although the applicant had never injured himself. Drs Roth and Søndergaard maintained in their reports that there was a real risk of suicide as the applicant was constantly struggling with self-destructive thoughts, and had suicidal impulses and clear flashbacks from torture. Thus, in the view of Dr Voltaire Carlsson, there were certain impediments against the enforcement of the deportation order because of the applicant’s mental health condition, whereas Drs Roth and Søndergaard insisted that there was an absolute impediment against the deportation as the applicant was in such poor mental health that he could act in desperation if he were to be deported. These two physicians also stated that the applicant’s poor health had been caused by the traumas of which he had been the victim in Bangladesh and by the prolonged insecurity in Sweden. They estimated that he would need extensive treatment, both medical and psychiatric, for a long time and in a secure environment. In the last certificate, dated 22 February 2006, Dr Roth wrote that the applicant’s condition had not improved but rather worsened because he was very frustrated over his uncertain situation in Sweden. He had continuous contact with a psychologist at the clinic and got his medication in doses for one week at a time to prevent a suicide by overdose. He was medicated with the anti-psychotic drug, Zyprexa, the anti-depressive drug, Clomipramine, as well as with anxiety reducing medication and sleeping pills. The Bangladeshi government is the main provider of health services in the country, with the private sector playing an increasingly larger role. Moreover, non-governmental organisations (NGOs) are involved in the provision of primary health care and in rehabilitation. The country has a national mental health programme and there are budget allocations for mental health. However, both the budget and the number of mental health professionals are largely inadequate. Medicines, including antidepressants, are available and commonly used in Bangladesh for the treatment of mental illness. Different types of psychotherapy are also used in treatment. Formal care and treatment of mentally ill persons started in 1957 when the Pabna Mental Hospital was opened and, in 1969, the first outdoor clinic started functioning in Dhaka Medical College. Since the 1970s, more institutes were opened and, in 2002, the National Mental Health Institute opened as a fully operational hospital and educational centre. Moreover, each military hospital has a mental health department and there are mental health sections in hospitals in several cities around the country. Several smaller, private clinics have also been established, in particularly in and around Dhaka, such as the Bidyut Mental Clinic. Furthermore, the Bangladesh Association of Psychiatrics, the Bangladesh Psychological Association and the Bangladesh Clinical Psychology Association have their seats in Dhaka and are affiliated to the Dhaka Medical College, the Department of Psychology and the Department of Clinical Psychology at the University of Dhaka, respectively. Also, in 1992, an NGO, the Bangladeshi Mental Health Association, was created with the mission to provide community-based mental health service to the people in Bangladesh. It has its base at the Monorog Clinic in Dhaka. The basic provisions, applied in the present case, concerning the right of aliens to enter and to remain in Sweden were laid down in the 1989 Aliens Act (utlänningslagen, 1989:529 – hereinafter referred to as “the 1989 Act”). However, the 1989 Act was replaced, on 31 March 2006, by a new Aliens Act (Utlänningslag, 2005:716 – hereinafter referred to as “the 2005 Act”). Both the 1989 Act and the 2005 Act define the conditions under which an alien can be expelled from the country, as well as the procedures relating to the enforcement of decisions under the Acts. Chapter 1, Section 4 of the 1989 Act provided that an alien staying in Sweden for more than three months should have a residence permit. Such a permit could be issued, inter alia, to an alien who, for humanitarian reasons, should be allowed to settle in Sweden (Chapter 2, Section 4). For example, serious physical or mental illness could, in exceptional cases, constitute humanitarian reasons for the granting of a residence permit if it was a life-threatening illness for which no treatment could be provided in the alien’s home country. Further, according to the 1989 Act, an alien who was considered to be a refugee or otherwise in need of protection was, with certain exceptions, entitled to residence in Sweden (Chapter 3, Section 4). The term “refugee” referred to an alien who was outside the country of his nationality owing to well-founded fear of being persecuted for reasons of race, nationality, membership of a particular social group, or religious or political opinion, and who was unable or, owing to such fear, unwilling to avail himself or herself of the protection of that country. This applied irrespective of whether the persecution was at the hands of the authorities of the country or if those authorities could not be expected to offer protection against persecution by private individuals (Chapter 3, Section 2). By “an alien otherwise in need of protection” was meant, inter alia, a person who had 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 3, Section 3). An alien who was to be refused entry or expelled in accordance with a decision that had gained legal force could be granted a residence permit if he or she filed a so-called new application based on circumstances which had not previously been examined, and if the alien was entitled to a residence permit under Chapter 3, Section 4, or it would be contrary to the requirements of humanity to enforce such a decision (Chapter 2, Section 5 b). Regard could also be had to serious illness under this provision. Such new applications were filed with and examined by the Aliens Appeals Board (Chapter 7, Section 7). When it came to enforcing a decision on refusal of entry or expulsion, account had 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 could not be sent to a country where there were 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 8, Section 1). In essence, there have not been any major changes to the provisions referred to above in the 2005 Act, with the exception of the following: Through the enactment of the 2005 Act, the Aliens Appeals Board has been replaced by the Migration Court and the Migration Court of Appeal (Chapter 14, Section 3). Moreover, it is no longer possible to lodge so called new applications but, instead, the Migration Board shall, on its own initiative, determine whether there is any impediment to the deportation or expulsion (Chapter 12, Section 18). Furthermore, between 15 November 2005 and 30 March 2006, some interim amendments to the 1989 Act were in force, according to which the Migration Board, upon application by an alien or on its own initiative, could re-determine final decisions already taken by the Aliens Appeals Board. The object of these temporary amendments was to grant residence permits to aliens who, inter alia, had been in Sweden for a very long time or where there existed “urgent humanitarian interests” (humanitärt angeläget). Special consideration was given to the situation of children.