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
1. 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.
2. 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
3. The facts of the case, as submitted by the applicant, may be summarised as follows.
4. 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.
5. 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.
6. 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.
7. 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.
8. On 3 June 2008 the Migration Court of Appeal (Migrations-överdomstolen) refused leave to appeal.
9. 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.
10. 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.
11. 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.
12. 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
13. 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”).
14. 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).
15. 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.
16. 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).
17. 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).
18. 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
19. 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
20. 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.”
21. 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.”
22. 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.
23. 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.
24. 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-...).
25. 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).
26. 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).
27. 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).
28. 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.
29. 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).
30. 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.
31. 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. ...”
32. 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).
33. 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.
34. 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.
35. 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 WesterdiekDean Spielmann
RegistrarPresident
Full & Egal Universal Law Academy