NDANGOYA v. SWEDEN
Inadmissible
Nicolas Bratza
The applicant, Mr Charles Ndangoya, is a Tanzanian national who was born in 1963. He was represented before the Court by Mr P. Bergquist, a lawyer practising in Tyresö. The respondent Government were represented by Ms E. Jagander, Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant entered Sweden on 28 October 1991. He applied for a permanent residence permit, based on his marriage to a Swedish national, on the following day. In support of his application the applicant stated, inter alia, that he had met his wife in August 1990, at which time he had been living with his family in Arusha, Tanzania and working as a machine operator at a pharmaceutical factory. After a period of time he had moved in with her and the couple had subsequently married at the Swedish Embassy in Tanzania on 14 August 1991. His family had accepted the relationship and permission to marry had been sought from his uncle, who was living in Kenya and who had become the head of the family after the death, in 1986, of the applicant’s father. His grandfather had been a “tribal chief”. His father had been educated and the family had been living in town. His mother was residing in Arusha and he had eight brothers and sisters, seven of whom were living in Tanzania. Interviewed together with the applicant, his wife stated, inter alia, that she had been working as a teacher in Tanzania since September 1989 and that before she met the applicant she had been acquainted with his sisters and the family. The applicant’s father had apparently been a highly respected man and she had noticed that people recognised the family when their name was mentioned. All the applicant’s siblings had received an education, all but one of them probably as teachers. The family also had a family business that dealt in gems. In March 1991 the applicant had left his job at the pharmaceutical factory as it caused him to experience allergic reactions. He had thereafter not had any other employment but had assisted his mother who was building a house. On 27 November 1991 the applicant was given a temporary residence permit in Sweden which was subsequently extended until 27 May 1993. On 13 December 1991 the applicant’s wife gave birth to the couple’s first child. In October 1993 the couple left for Tanzania, where they remained until the beginning of 1996. While the applicant’s wife returned to Sweden in January 1996, the applicant re-entered Sweden on 12 March 1996. On the same day the couple’s second child was born. The applicant was granted a permanent residence permit in Sweden on 10 July 1996. As a result of tests performed in connection with her pregnancy, the applicant’s wife in the summer of 1991 learned that she was infected with the HIV virus. A test was subsequently performed also on the applicant which showed that he too carried the infection. The applicant was in this context, and subsequently on repeated occasions, informed of his obligations as a carrier of an infectious disease to refrain from conduct that could cause any further spreading of the disease. According to the evidence subsequently given by the applicant’s (then former) wife at his trial, both she and the applicant were very well aware of the precautions they were obliged to observe, both with respect to each other and with respect to other persons who did not carry the infection. In September 1997 the applicant and his wife separated and the applicant moved out of the family home in the province of Dalarna and settled in Stockholm. The couple was divorced in November 1998. On 30 December 1998 the District Court (tingsrätten) of Stockholm found the applicant guilty of making unlawful threats and of carrying knives in a public place. He was given a conditional sentence and ordered to pay a fine. No appeal was made against the judgment. In the winter and spring of 1999 reports were made to the unit for prevention of infectious diseases at the Karolinska hospital in Stockholm that the applicant was engaging in sexual contacts without disclosing to his partners that he was HIV positive. As a result, he was in May 1999 subjected to compulsory isolation pursuant to the Infectious Diseases Act (Smittskyddslagen, 1988:1472). Following police investigation he was subsequently charged with having had unprotected sexual intercourse with three different women without disclosing to them that he carried the HIV virus, thereby transmitting the infection to two of them. During the preliminary investigation, the applicant provided further information on his family background and the circumstances surrounding his life in Tanzania. He stated, inter alia, that he grew up with his mother and stepfather in his home village. He first went to a primary school close to the village and later attended a catholic high school in Arusha. He had six full brothers and sisters and eight siblings on his father’s side. By a judgment of 8 September 1999 the District Court found the applicant guilty of two counts of aggravated assault and one count of attempted aggravated assault and sentenced him to six years’ imprisonment. Upon the applicant’s and the prosecutor’s appeal, the Svea Court of Appeal (Svea hovrätt), on 2 December 1999, upheld the applicant’s conviction and sentence. Whilst not finding any evidence to show that the applicant had deliberately sought to transmit the virus to the victims, the court observed that he on repeated occasions had been informed of the special risk of transmitting the disease during unprotected sexual intercourse and that he accordingly had been well aware of that risk. Yet, the material before the court showed that he had not informed any of the three victims of his condition. With respect to two of the victims the unprotected sexual contacts had occurred on repeated occasions and in the remaining case on a single occasion when the victim was asleep and despite the fact that she at all previous times had insisted that the applicant should use a condom throughout the intercourse. Considering that the applicant had acted with exceptional ruthlessness and indifference towards his victims, the court concluded that that he would not have refrained from having sexual intercourse with them even if he had known that the disease would be transmitted. The applicant had accordingly shown the requisite mens rea under the applicable principles of Swedish criminal law to be held criminally liable for having committed the crimes with intent. The Court of Appeal further ordered the applicant’s expulsion from Sweden. Having found that the crimes for which he had been convicted justified a seven-year prison sentence, the court had regard to the inconvenience caused by his expulsion and consequently fixed the sentence at six years’ imprisonment. In regard to the expulsion, the court made, inter alia, the following observations. The applicant’s only connection to Sweden was the fact that his former wife and their two children were residing in the country. He had no other link to the country; he had not learned the Swedish language or established himself on the Swedish labour market and did not appear to have undergone any continuous prescribed treatment for his HIV infection in Sweden. In regard to the applicant’s contacts with his children, evidence given by his former wife revealed that he had been seeing them about four to five times per year and that he had otherwise only had contact with them by telephone. The former wife had maintained, particularly out of concern for the children, certain contacts with the applicant’s relatives in Tanzania. There were thus contacts by letter and telephone between the children and the relatives. The court further found that the applicant had not been continuously residing in Sweden for such a period of time that exceptional reasons were required for his expulsion. However, even if he were to be considered as having resided in Sweden for such a continuous period, the court considered that, in view of the very serious nature of the offences and the applicant’s unsettled conditions in the country, there were sufficiently strong reasons to expel him from Sweden with a lifelong ban on his return. In this context, the court noted that the children’s established contact with relatives in Tanzania would probably mean that the expulsion would not cause the contact between the applicant and his children to be severed. The court also stated that there was probably a significant risk that the applicant would relapse into the same type of criminal behaviour and that this factor strongly militated in favour of expulsion. The applicant appealed to the Supreme Court (Högsta domstolen). He submitted a statement of 5 January 2000 by Mr Sören Strid, a psychologist at the Child and Youth Psychiatric Clinic (Barn- och ungdomspsykiatriska mottagningen) in Karlstad, according to which the applicant’s former wife and their two children had visited the clinic on four occasions during the autumn of 1999. Mr Strid stated that the children had a strong emotional relationship to their father and that their need of continuous contact with him could not realistically be maintained should he be expelled to Tanzania. By a decision of 1 February 2000 the Supreme Court refused the applicant leave to appeal against the Court of Appeal’s judgment. During the applicant’s time in prison, five petitions have been made to the Government for a revocation of the expulsion order. They were rejected by decisions of 29 June 2000, 26 July 2001, 7 November 2002 (two petitions) and 12 June 2003 respectively. In support of his requests for a revocation, the applicant submitted several statements. In a medical certificate of 27 November 2001, Dr Stefan Lindbäck, chief physician at the HIV unit at Huddinge hospital and the physician responsible for the applicant’s treatment during the preceding two years, stated that the applicant had undergone anti-retroviral treatment, albeit irregularly, between the summer of 1996 and the end of 1998, and had thereafter not been under treatment until October 1999 when – viral levels in his blood being very high and his immune system being severely weakened and “at the level where AIDS complications usually appear” – he had resumed his medication. The resumed treatment had been successful to the point where the HIV levels in the applicant’s blood were no longer detectable. According to Dr Lindbäck, his chances of receiving life-sustaining HIV treatment in Tanzania were very slim. Moreover, experience showed that the interruption of treatment of a patient like the applicant would lead to a relatively rapid deterioration of the immune system leading to the development of AIDS within 1 to 2 years and death within 3 to 4 years. In a further certificate of 2 June 2003 Dr Lindbäck reiterated his previous statements and added that the applicant’s understanding and acceptance of his disease had improved and that the risk of his relapsing into his previous behaviour had to be considered as extremely small. In a statement, dated 18 December 2001, Ms Christina Persson, a counsellor (kurator) at the HIV ward at the same hospital, stated that she had met the applicant regularly since August 1997, during which time he had shown an increased understanding of his illness, his previous actions and his prevailing situation. Ms Persson concluded that there was no great risk that the applicant would relapse into his previous hazardous behaviour, as the root causes of that behaviour – fear that his illness would become known to other people, depression and alcohol abuse – had been removed. In submissions of 13 August 2002 Mr Andreas Berglöf, ombudsman at the Swedish Association for HIV-positive People (Riksförbundet för hivpositiva; RFHP), stated that the applicant had expressed anxieties about his impending expulsion, partly because of the lack of adequate treatment in Tanzania and partly because of the risk of his contact with his children being severed. The applicant had also mentioned that one of his brothers had recently died from AIDS and that a sister was seriously ill due to an HIV infection. In a report of 4 May 2003 the National Prisons and Probation Authority (Kriminalvården) stated that, after initially having been in a bad state, both mentally and physically, at the prison where he was serving his sentence, the applicant’s situation had improved considerably. He was open and understanding about his illness and received continuous medical treatment. He also received regular visits once a month from his children, accompanied by his former wife, a contact which was very important both to him and the children. In submissions of 21, 26 and 28 May 2003, respectively, a friend of the applicant’s former wife, her psychiatric counsellor and her brother attested to the close relationship between the applicant and his children and the fact that they had met regularly at the prison. In a letter of 31 May 2003 the applicant’s former wife described her and the children’s relationship to the applicant. She explained that since it had been easier for her to integrate on the labour market, the applicant had stayed at home with the children. Even after the separation and the applicant’s move to Stockholm, they had remained in close contact, seeing each other as often as their financial situation permitted. They had ensured that the children spoke Swahili; the older child spoke Swahili with the applicant whereas the younger child preferred Swedish. During the applicant’s serving of his sentence, they had visited him as often as possible, altogether on 47 occasions. She further claimed that she could not afford regular visits to the applicant if he were to be expelled to Tanzania. In his latest application for a revocation of the expulsion order, submitted to the Government during the spring of 2003, the applicant maintained that, as from the autumn of 2001, he had a new relationship with a Swedish woman and that there was no risk that he upon release would relapse into the same type of criminal behaviour. The new relationship had apparently been established in the autumn of 2001 through the exchange of letters. The couple met for the first time in the prison in February 2002 and the woman had subsequently visited the applicant every fortnight. She had a metabolic disturbance and was consequently considerably overweight. On 13 June 2003, following the Court’s indication, under Rule 39 of the Rules of Court, that it was desirable in the interests of the parties and the proper conduct of the proceedings before the Court not to expel the applicant to Tanzania until further notice, the Minister of Justice decided to stay the enforcement of the expulsion order. The Minister further decided that the applicant upon his release from prison on the following day was to be taken into custody pursuant to chapter 6, sections 2 and 9 of the Aliens Act (Utlänningslagen, 1989:529) on the ground that there was reason to believe that he would abscond. On 14 June 2003 the applicant was released on probation. He remains in detention. In a report to the Government of 11 July 2003 the Swedish Embassy in Tanzania, after consulting with medical doctors with experience of HIV/AIDS treatment at the Nordic clinic in Dar es Salaam, the head of the Tanzania Occupational Health Service in Dar es Salaam and three of the latter’s colleagues from other parts of the country, provided the following information. Both HIV treatment, in the form of anti-retroviral therapy, and medical care for persons suffering from an HIV infection or developed AIDS were available in Tanzania for those who could afford it. Anti-retroviral therapy and medical attention could be obtained in Dar es Salaam and probably also in Arusha in the north of the country. The physicians with whom the Embassy had been in contact could not with certainty say that anti-retroviral therapy could be obtained in other parts of the country. So-called “CD4-count”, a test to establish the number of certain white blood cells, was available at two hospitals in Dar es Salaam and in all probability also at a medical centre in Moshi in the north. Various types of antibiotics were available throughout Tanzania, also the most modern types suitable for persons suffering from allergy to penicillin. The cost of anti-retroviral therapy lay between 50,000 and 100,000 Tanzanian shillings per month, to be compared with the minimum wage of a Government employee which was 45,000 shillings (1000 Tanzanian shillings approximately corresponded to 0.87 euros). The cost of antibiotics and the treatment of different types of opportunistic diseases varied and was difficult to estimate but lay above 40,000 shillings per month. The cost of “CD4-count” in Dar es Salaam was 40,000 shillings. Pursuant to chapter 1, section 8 of the Penal Code (Brottsbalken), a crime may, apart from ordinary sanctions, result in special consequences defined by law. Expulsion on account of a criminal offence constitutes such a special consequence. Provisions on expulsion on this ground are laid down in the Aliens Act. According to chapter 4, section 7 of the Act, an alien may not be expelled from Sweden on account of having committed a criminal offence unless certain conditions are satisfied. Firstly, he must be convicted of a crime that is punishable by imprisonment. Secondly, he may only be expelled if he is in fact sentenced to a more severe punishment than a fine and if (1) it may be assumed, on account of the nature of the crime and other circumstances, that he will continue his criminal activities in Sweden or (2) the offence, in view of the damage, danger or violation involved for private or public interests, is so serious that he ought not to be allowed to remain in the country. Furthermore, under chapter 4, section 10 of the Act, when considering whether or not an alien should be expelled, the court shall take into account his links to Swedish society. As regards aliens who are considered to be refugees, special rules apply. Moreover, the court must have regard to the general provisions on impediments to the enforcement of an expulsion decision. Thus, pursuant to chapter 8, section 1 of the Act, there is an absolute impediment to expelling an alien to a country where there are reasonable grounds for believing that he would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment. Further, a risk of persecution generally constitutes an impediment to enforcing an expulsion decision.