BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIFTH
SECTION
DECISION
Application no.
74352/11
B.Z.
against Sweden
The
European Court of Human Rights (Fifth Section), sitting on
29 May 2012 as a Chamber composed of:
Dean
Spielmann, President,
Elisabet Fura,
Karel
Jungwiert,
Boštjan M. Zupančič,
Mark
Villiger,
Ganna Yudkivska,
Angelika Nußberger,
judges,
and Claudia Westerdiek,
Section Registrar,
Having
regard to the above application lodged on 1 December 2011,
Having
regard to the interim measure indicated to the respondent Government
under Rule 39 of the Rules of Court and the fact that this interim
measure has been complied with,
Having
regard to the observations submitted by the respondent Government and
the observations in reply submitted by the applicant,
Having
deliberated, decides as follows:
THE FACTS
- The
applicant was born in 1942 and originates from Eritrea. He is
represented before the Court by Ms M. Bexelius, a lawyer practising
in Stockholm.
- The
Swedish Government (“the Government”) are represented by
their Agent, Ms G. Isaksson, of the Ministry for Foreign Affairs.
A. The circumstances of the case
- The
facts of the case, as submitted by the applicant, may be summarised
as follows.
- The
applicant arrived in Sweden on 19 April 2006 and applied for asylum
on the same day. He submitted the following. He had been approached
in his home by men in military uniforms. They had asked him about his
sons, since they had apparently deserted from military service. He
had stated that he did not know of their whereabouts, but the men had
not believed him. He had been imprisoned, during which he had been
beaten daily. He had managed to escape after five days, upon which he
had immediately left for Sudan without returning home.
- On
4 October 2007 the Migration Board (Migrationsverket)
rejected the applicant’s request for asylum and ordered his
deportation to Eritrea. The Board noted that parents of deserters had
reportedly been arrested and forced to either pay bail or serve in
their children’s place. Taking into account that one and a half
year had passed since the applicant’s departure and that he had
otherwise not been of interest to the authorities, it considered that
there was no remaining risk for him. Moreover, his injuries were not
deemed to be of such severity as to give reason to grant him a
residence permit.
- The
applicant appealed and added that, following his departure, his wife
had been visited by men looking for their sons. She had had
difficulties with the military and had subsequently disappeared.
- On
11 March 2008 the Migration Court (Migrationsdomstolen)
upheld the Board’s decision. The court questioned the
applicant’s credibility. He had initially claimed that the
military had taken his identity card, and later that he had lost it
during the journey. However, he had subsequently submitted an
identity card, without explaining how he had procured it. He had
furthermore given contradictory information regarding the amount of
money paid to the smuggler. It was in any event deemed remarkable
that he would have been able to keep such a large sum of money during
his imprisonment. Regardless of the credibility issue, the court
found that he had not made likely that he was at risk upon returning.
- On
3 June 2008 the Migration Court of Appeal (Migrations-överdomstolen)
refused leave to appeal.
- The
applicant later claimed that there was an impediment to the
enforcement of the deportation order, stating that he was in poor
health. On 28 May 2009 the Migration Board found that his medical
condition did not constitute an impediment to enforcement.
- In
a second request for review of the enforcement, the applicant added
that his illegal departure from Eritrea marked him as a traitor. The
Eritrean Embassy had examined his identity card and considered it to
be forged. On 27 October 2011 the Migration Board found that
the request did not refer to any new circumstances giving reason to
review the case.
- The
applicant appealed the decision and requested that the Migration
Court demand a medical investigation concerning torture. He submitted
that an application for asylum is seen as treason by the Eritrean
authorities, and that he might be forced to serve in the military
upon his return, despite his age. On 30 November 2011 the Migration
Court upheld the Board’s decision, stating that the
applicant’s allegedly illegal departure from Eritrea, as well
as the risk due to his sons’ desertion, had already been
examined by the authorities.
- On
6 December 2011 the acting President of the Fifth Section decided, in
the interests of the parties and the proper conduct of the
proceedings before the Court, to indicate to the Government of
Sweden, under Rule 39 of the Rules of Court, that the applicant
should not be deported to Eritrea until further notice.
B. Relevant domestic law
- The
basic provisions applicable in the present case, concerning the right
of aliens to enter and to remain in Sweden, are laid down in the 2005
Aliens Act (Utlänningslagen, 2005:716 – hereafter
referred to as “the 2005 Act”).
- 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 (Chapter 5, section 1 of the 2005 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 (Chapter 4, section 1). 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).
- 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).
Special consideration should be given, inter alia, to the
alien’s health status. According to the preparatory works
(Government Bill 2004/05:170, pp. 190-191), life-threatening physical
or mental illness for which no treatment can be given in the alien’s
home country could constitute a reason for the grant of a residence
permit.
- 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). In
addition, an alien must not, in principle, be sent to a country where
he or she risks persecution (Chapter 12, section 2).
- Under
certain conditions, an alien may be granted a residence permit even
if a deportation or expulsion order has gained legal force. This is
the case where new circumstances have emerged which indicate that
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 (Chapter 12, section 18). If a
residence permit cannot be granted under this criteria, 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, and these circumstances could
not have been invoked previously or the alien shows that he or she
has a valid excuse for not having done so. Should the applicable
conditions not have been met, the Migration Board shall decide not to
grant a re-examination (Chapter 12, section 19).
- Under
the 2005 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).
COMPLAINT
- The
applicant complains under Article 3 of the Convention that he is at
risk of being killed or imprisoned and subjected to torture or
inhuman treatment should he be deported to Eritrea. Furthermore, it
cannot be excluded that he will be forced to serve in the military in
his children’s place. His age and medical condition aggravates
the risk of his dying as a result of any ill-treatment.
THE LAW
- The
applicant complains that his deportation to Eritrea would put him at
risk of being killed or imprisoned and subjected to torture or
inhuman treatment. While he invokes solely Article 3 of the
Convention, the Court finds that his complaint also raises issues
under Article 2. These provisions read as follows:
Article 2:
“1. Everyone’s right to life
shall be protected by law. No one shall be deprived of his life
intentionally save in the execution of a sentence of a court
following his conviction of a crime for which this penalty is
provided by law. ...”
Article 3:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- The
respondent Government contend that the application is inadmissible
for failure to comply with the six-month rule under Article 35 §
1 of the Convention which, in its relevant parts, provides the
following:
“The Court may only deal with the matter ...
within a period of six months from the date on which the final
decision was taken.”
- The
Government argue that domestic remedies were exhausted on 3 June
2008, when the Migration Court of Appeal refused leave to appeal. The
decision to deport the applicant thereby became final and he was
obliged to leave Sweden. However, he only applied to the Court on
1 December 2011, thus almost three years outside the six-month
time-limit. The Government hold that, although cases concerning
deportation of aliens involve allegations of risk of treatment in
breach of Article 2 or 3 of the Convention, the importance of the
case does not absolve an applicant from complying with the
requirements under Article 35. In this respect, they point out that
the six-month rule is closely linked to the rule on exhaustion of
domestic remedies.
- The
applicant disagrees with the Government’s position and asserts
that the application should be declared admissible. He submits that,
in deportation cases, the aim of the Court’s examination is to
determine whether the implementation of a deportation order would
involve a risk of treatment in breach of Article 2 or 3. This risk
materialises itself only at the time of the applicant’s return,
and the six-month period should accordingly start to run on that date
and not on the date of the final domestic decision.
- At
the outset, the Court reiterates that Contracting States have the
right, as a matter of well-established international law and subject
to their treaty obligations, including the Convention, to control the
entry, residence and expulsion of aliens (see, for example, Üner
v. the Netherlands [GC], no. 46410/99, § 54, ECHR
2006-XII; Abdulaziz, Cabales and Balkandali v. the United
Kingdom, judgment of 28 May 1985, Series A no. 94, p. 34, § 67;
and Boujlifa v. France, judgment of 21 October 1997, Reports
1997 VI, p. 2264, § 42). However, the expulsion of an
alien by a Contracting State may give rise to an issue under Article
3, and hence engage the responsibility of that State under the
Convention, where substantial grounds have been shown for believing
that the person in question, if deported, would face a real risk of
being subjected to treatment contrary to Article 3 in the receiving
country. In these circumstances, Article 3 implies the obligation not
to deport the person in question to that country (see, among other
authorities, Soering v. the United Kingdom, judgment of 7 July
1989, Series A no. 161, pp. 35-36, § 91; and Saadi v. Italy
[GC], no. 37201/06, §§ 124-125, ECHR 2008-...).
- The
Court is therefore called upon to assess the situation in the
receiving country in the light of the requirements of Article 3.
Nonetheless, there is no question of adjudicating on or establishing
the responsibility of the receiving country, whether under general
international law, under the Convention or otherwise. In so far as
any liability under the Convention is or may be incurred, it is
liability incurred by the Contracting State, by reason of its having
taken action which has as a direct consequence the exposure of an
individual to the risk of proscribed ill-treatment (see Soering
v. the United Kingdom, cited above, § 91; Mamatkulov
and Askarov v. Turkey [GC], nos. 46827/99 and
46951/99, § 67, ECHR 2005-I; and Saadi v. Italy, cited
above, § 126).
- With
regard to the material date, the Court has on many occasions stressed
that the existence of the risk must be assessed primarily with
reference to those facts which were known or ought to have been known
to the Contracting State at the time of expulsion. However, if the
applicant has not yet been extradited or deported when the Court
examines the case, the relevant time will be that of the proceedings
before the Court (see, for instance, Chahal v. the United Kingdom
judgment of 15 November 1996, Reports 1996-V, §§ 85
and 86, and Venkadajalasarma v. the Netherlands, no. 58510/00,
§ 63, 17 February 2004). Accordingly, while it is true
that historical facts are of interest in so far as they shed light on
the current situation and the way it is likely to develop, the
present circumstances are decisive (see Saadi v. Italy, cited
above, § 133).
- The
mentioned principles apply also in regard to Article 2 of the
Convention (see, for example, Kaboulov v. Ukraine, no.
41015/04, § 99, 19 November 2009).
- It
follows from the above considerations that, in cases where it is
alleged that the removal of a person to another country will expose
him or her to a risk of irreparable harm in violation of Article 2 or
3, it is the actual removal that triggers the responsibility under
the Convention, as the direct consequence of this action is that the
sending State exposes the person to the risk in question (see,
mutatis mutandis, Maslov v. Austria [GC], no. 1638/03,
§ 93, ECHR 2008-...). The situation in the receiving country as
well as the personal circumstances of the individual concerned may
change between the date of the decision ordering the removal and the
date of enforcement of that decision. Consequently, in examining
complaints under Article 2 or 3, the Court has frequently taken into
account facts postdating the removal order.
- Thus,
in this type of case, as opposed to most other cases brought before
the Court, the potential violation of the Convention does not occur
by virtue of the final decision by the relevant national authority or
court but through the enforcement of this decision. If, for whatever
reason, the individual concerned is not removed from the territory of
the respondent State, the responsibility of that State under Article
2 or 3 does not arise. This is reflected in the wording of the Court
when it has found violations in cases of deportation, expulsion,
extradition and the like, having concluded that the enforcement of a
removal order would involve a violation of the Convention,
thus referring to a potential violation occurring at the time of the
implementation of the removal order (see, for example, Soering v.
the United Kingdom, cited above, p. 35, § 90, and p. 44-45,
§ 111).
- By
the same token, a State may refrain from enforcing a removal order,
thereby avoiding its responsibility under the Convention. In this
respect, the Court notes that such decisions, based on new
circumstances, may be taken by the Swedish authorities under Chapter
12 of the 2005 Act even if a deportation order against an alien has
gained legal force.
- Turning
to the application of the six-month rule under Article 35 § 1 of
the Convention, the Court recently summarised the relevant principles
in the case of Varnava and Others v. Turkey ([GC], no.
16064/90, ECHR 2009 ...). It stated as follows:
“157. As a rule, the six-month period
runs from the date of the final decision in the process of exhaustion
of domestic remedies. Where it is clear from the outset however that
no effective remedy is available to the applicant, the period runs
from the date of the acts or measures complained of, or from the date
of knowledge of that act or its effect on or prejudice to the
applicant (Dennis and Others v. the United Kingdom (dec.), no.
76573/01, 2 July 2002). Nor can Article 35 § 1 be interpreted in
a manner which would require an applicant to seize the Court of his
complaint before his position in connection with the matter has been
finally settled at the domestic level. Where, therefore, an applicant
avails himself of an apparently existing remedy and only subsequently
becomes aware of circumstances which render the remedy ineffective,
it may be appropriate for the purposes of Article 35 § 1 to take
the start of the six-month period from the date when the applicant
first became or ought to have become aware of those circumstances
(see Paul and Audrey Edwards v. the United Kingdom (dec.), no.
46477/99, 4 June 2001).
...
159. Nonetheless it has been said that the
six month time-limit does not apply as such to continuing situations
(see, for example, Agrotexim Hellas S.A. and Others v. Greece,
no. 14807/89, Commission decision of 12 February 1992, DR 71, p. 148,
and Cone v. Romania, no. 35935/02, § 22, 24 June 2008);
this is because, if there is a situation of ongoing breach, the
time-limit in effect starts afresh each day and it is only once the
situation ceases that the final period of six months will run to its
end. ...”
- While,
accordingly, the date of the final domestic decision providing an
effective remedy is normally the starting-point for the calculation
of the period of six months, the Court reiterates what has been
stated above (at § 30), that the responsibility of a
sending State under Article 2 or 3 of the Convention is, as a rule,
incurred only at the time when the measure is taken to remove the
individual concerned from its territory. Specific provisions of the
Convention should be interpreted and understood in the context of
other provisions as well as the issues relevant in a particular type
of case. The Court therefore finds that the considerations relevant
in determing the date of the sending State’s responsibility
must be applicable also in the context of the six-month rule. In
other words, the date of the State’s responsibility under
Article 2 or 3 corresponds to the date when the six-month period
under Article 35 § 1 starts to run for the applicant. If a
decision ordering a removal has not been enforced and the individual
remains on the territory of the State wishing to remove him or her –
as is the scenario when the Court examines an application and its
indication under Rule 39 of the Rules of Court has been respected by
the respondent State – the six-month period has not yet started
to run. This situation, involving an ongoing potential violation of
the Convention, thus resembles the continuing situations described in
Varnava and Others v. Turkey (cited above, § 159).
- In
the present case, the decision to refuse the applicant a residence
permit and to deport him to Eritrea gained legal force on 3 June
2008, when the Migration Court of Appeal refused him leave to appeal.
He introduced the present application to the Court on 1 December
2011, thus approximately three and a half years after the final
national decision. However, at the time of the introduction of the
application, the deportation order had not been enforced and the
applicant remained in Sweden. Following the Court’s indication
under Rule 39, this situation has not changed.
- It
follows that the six-month period has not started to run in the
present case and that, consequently, the applicant has not failed to
comply with Article 35 § 1 of the Convention. The Government’s
objection must therefore be rejected.
- No
other ground for declaring the application inadmissible has been
invoked or established. The Court concludes, therefore, that the
application should be declared admissible.
For these reasons, the Court by a majority
Declares the application admissible, without prejudging the
merits of the case.
Claudia Westerdiek Dean Spielmann
Registrar President
