Cruz Varas and Ors v. Sweden

Cruz Varas (C V) , his wife and son (all Chilean nationals) had applied for political asylum but the National Immigration Board held that, from the information given, they had not invoked sufficiently strong reasons to be considered as refugees under national or international law and that they should be expelled. In an unsuccessful appeal to the government no new circumstances were invoked but, after they had alleged to the police that there were impediments to the enforcement of the expulsion order, C V was questioned and stated new reasons for seeking asylum, namely, the risk of torture, persecution and death because of his work with a Chilean political group since his arrival in Sweden. However, the police decided to enforce the order and a succession of appeals, with further information about his activities in Sweden and Chile, were rejected and C V was expelled in October 1989 despite a request from the Nordic office of the UN High Commissioner for Refugees that he not be returned to Chile. However, his wife and son went into hiding in Sweden and there whereabouts were not known.

C V, having failed to obtain asylum in Brazil, stayed in Chile for three weeks and then went to Argentina but his wherabouts thereafter were unknown. He, his wife and his son had applied to the Commission the day before his expulsion and it indicated under ROP, r 36 to the government that it was desirable that the applicants not be deported until it had had an opportunity to examine their application and the relevant authorities were aware of this at the time of C V’s expulsion. Subsequently the Commission reiterated its indication and also indicated that it was desirable that the government took measures to enable C V to return to Sweden as soon as possible and the government indicated that these indications had been communicated to the board.

The applicants complained that C V’s expulsion amounted to inhuman and degrading treatment and an interference with the right to family life. They also complained of a violation of the right to a fair hearing and to an effective remedy. The Commission declared the first two complaints admissible and found a breach neither of Art 3 (8-5) nor of Art 8 (unanimously) but (12-1) a breach of Art 25(1) by not following its request not to expel C V.

[Adapted from INTERIGHTS summary, with permission]

The Court held:

(1) (18-1) that (a) a state's responsibility may be engaged by action such as expulsion which as a direct consequence exposes someone to the risk of proscribed ill-treatment but, while the existence of the risk must be assessed primarily with reference to facts known, or ones that ought to have been known, to the state concerned at the time of the expulsion, it could have regard to information that subsequently comes to light, (b) that, as C V's complete silence about his alleged activities and torture for more than eighteen months cast considerable doubt on his credibility (especially as he had been legally represented, had changed his story several times, had not presented any substantiation of the claims and had not located any witnesses or evidence during his time in Chile) and the Swedish authorities had particular knowledge and experience in evaluating such claims, substantial grounds had not been shown for believing that the expulsion would expose C V to a real risk of being subjected to inhuman or degrading treatment, (c) that, therefore, Art 3 was not violated in this respect, (d) that, while C V was suffering from a post-traumatic stress disorder prior to his expulsion and his mental health deteriorated thereafter, his expulsion had not exceeded the minimum level of severity required to fall within Art 3 as there was no substantial basis for his fears and (e) that the facts did not reveal a possible breach of Art 3 in the possible expulsion of C V's son;

(2) that, since C V's wife and son went into hiding to evade enforcement of the expulsion order and (in view of the finding under Art 3) there was no obstacle to the applicants establishing family life in their home country, their separation following C V's expulsion cannot be imputed to the government and Art 8 was not violated; and

(3) (10-9) that (a) while the fact that the ECHR must be interpreted so as to make its safeguards practical and effective supported a power for to order interim measures to preserve the rights of the parties, unlike other treaties it had no specific provision regarding them and a proposal for an additional protocol conferring this power was not pursued, (b) such a power could not be derived from Art 25(1), considered separately or in conjunction with the ROP, r36, or from other sources since r36 could not create binding obligations in the absence of an ECHR provision (as is reflected in its terms), the almost total compliance with r36 indications was not based on a belief that they gave rise to a binding obligation but was a matter of good faith cooperation and no assistance can be derived from general principles of international law as no uniform legal rule existed, (c) Art 25(1) was not, therefore, violated but (d) where a state has had its attention drawn by an indication to the dangers of prejudicing an application pending, any subsequent breach established would have to be seen as aggravated by non-compliance and (e) the expulsion of C V had not actually hindered the presentation of the application.

In a dissenting opinion Judges Cremona, Thor Vilhjalmsson, Walsh, Macdonald, Bernhardt, De Meyer, Martens, Foighel and Morenilla considered:

(1) that protection under the ECHR would be meaningless if a state could extradite or expel someone without the prior possibility of clarifying the consequences;

(2) that the procedural guarantees in Art 25 presupposes the individual's opportunity to have an application considered more closely by the ECHR organs and to have his rights finally protected if necessary;

(3) that, while the lodging of an application does not automatically prevent consideration of whether to enforce a decision to expel or extradite, an indication under r36 gives the government the assurance that the application is of great importance and will be investigated speedily and it is, therefore, binding as the only means to protect the applicant from a possible violation causing irreparable harm;

(4) that the fact that C V was not tortured and could take the necessary steps before the ECHR organs is not relevant as the critical date was that of his expulsion when a grave violation of human rights could not be excluded and the Commission had indicated that closer examination appeared necessary; and

(5) that the expulsion after the r36 indication was incompatible with Art 25.

In a separate opinion Judge De Meyer considered that there was a violation of Art 3 in that there were grounds for believing that C V's expulsion to Chile was likely to expose him to a real risk of being subjected to torture or inhuman or degrading treatment or punishment.

[Adapted from  INTERIGHTS summary, with permission]

"84. In the present case the first applicant was considered to be suffering from a post-traumatic stress disorder prior to his expulsion and his mental health appeared to deteriorate following his return to Chile (see paragraphs 27 and 44 above). However, it results from the finding in paragraph 82 that no substantial basis has been shown for his fears. Accordingly the Court does not consider that the first applicant’s expulsion exceeded the threshold set by Article 3 (art. 3)." Paragraph 84.

88. As noted by both the Government and the Commission, the expulsion of all three applicants was ordered by the Swedish Government but the second and third applicants went into hiding and have so remained in order to evade enforcement of the order (see paragraph 33 above). Moreover, the evidence adduced does not show that there were obstacles to establishing family life in their home country (see, mutatis mutandis, the Abdulaziz, Cabales and Balkandali judgment of 28 May 1985, Series A no. 94, p. 34, § 68). The Court refers in this respect to its finding concerning the applicants’ complaints under Article 3 (art. 3) (see paragraph 86 above). In these circumstances responsibility for the resulting separation of the family cannot be imputed to Sweden.

89. Accordingly there has been no "lack of respect" for the applicants’ family life in breach of Article 8 (art. 8)." Paragraphs 88-89.