FIFTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 18452/11
by Zeina HAJJ HUSSEIN
against Sweden
The European Court of Human Rights (Fifth Section), sitting on 20 September 2011 as a Chamber composed of:
Dean Spielmann, President,
Elisabet Fura,
Karel Jungwiert,
Isabelle Berro-Lefèvre,
Ann Power,
Ganna Yudkivska,
Angelika Nußberger, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 11 March 2011,
Having deliberated, decides as follows:
THE FACTS
The applicant, Zeina Hajj Hussein, was born in 1965 and claims to be Lebanese. However, the Swedish authorities found that she had not made it probable that she originates from Lebanon and therefore held that her case should be tried not only against Lebanon but also against the neighbouring countries Turkey and Syria.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
In 2006, the applicant had a relationship with a man who turned out to be a drug addict and dealer. After her parents banned her from seeing him, he started to harass her and threatened to kill her. Her brother also threatened to kill her due to that relationship.
On 7 May 2009 the Migration Board rejected her asylum application as it found the alleged incident to be an act of criminality which was for the domestic authorities to handle. The applicant had neither turned to those authorities for protection nor made it probable that they could not provide protection against the threats in question. The Board therefore held that, should the applicant be victim of further crimes upon return, she could seek protection from the authorities in Lebanon, Syria or Turkey. On 22 November 2010 the Migration Court upheld the decision of the Board. As stated by herself in the present application, the applicant did not appeal against the Migration Court’s judgment to the Migration Court of Appeal. With the rejection of the applicant’s asylum application she has no right to remain in Sweden and can be removed without further proceedings.
B. Relevant domestic law
The provisions applicable in the present case are laid down in the Aliens Act (Utlänningslagen, 2005:716). The Act defines, inter alia, the conditions under which an alien can be deported or expelled from Sweden as well as the procedures relating to the enforcement of such decisions.
The Act stipulates that 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). 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).
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 give 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 where 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 these rules, 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 be met, the Migration Board shall decide not to grant a re-examination (Chapter 12, section 19).
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. The applicants are entitled to be represented before these bodies by publicly-appointed counsel (Chapter 14, section 3, Chapter 16, section 9, and Chapter 18, section 1). The time-limit for appeals to the final instance is three weeks from the date of the appealed judgment (Chapter 16, section 10). For a case to be considered by the Migration Court of Appeal, leave to appeal is required and will be granted if there are special reasons for hearing the appeal or if the determination of the Migration Court of Appeal may be of importance as a precedent. If leave to appeal is granted, the Migration Court of Appeal can decide the case on the merits (Chapter 16, section 12).
COMPLAINT
The applicant complained under Article 3 of the Convention that, if deported to Lebanon, Turkey or Syria, this would cause her irreparable harm since her brother and former boyfriend have threatened to kill her. She also asked the Court to adopt an interim measure under Rule 39 of the Rules of Court to stop her deportation.
THE LAW
The applicant claimed that her deportation would involve a violation of Article 3 of the Convention, which provides as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
However, the Court need not determine the substance of the applicant’s complaint as the application is inadmissible for the following reasons.
The Court reiterates that the rule of exhaustion of domestic remedies in Article 35 § 1 of the Convention requires applicants first to use the remedies provided by the national legal system, thus dispensing States from answering before the European Court for their acts before they have had an opportunity to put matters right through their own legal system. For a remedy to be effective it has to be available in theory and in practice at the relevant time, meaning that it has to be accessible, capable of providing redress in respect of the applicant’s complaints and offer reasonable prospects of success. Article 35 must also be applied to reflect the practical realities of the applicant’s position in order to ensure the effective protection of the rights and freedoms guaranteed by the Convention (see NA v. the United Kingdom, no. 25904/07, 17 July 2008, § 88, with further references).
The Court has consistently held that mere doubts as to the prospects of success of national remedies do not absolve an applicant from the obligation to exhaust those remedies However, it has also on occasion found that where an applicant is advised by counsel that an appeal offers no prospects of success, that appeal does not constitute an effective remedy. Equally, an applicant cannot be regarded as having failed to exhaust domestic remedies if he or she can show, by providing relevant domestic case-law or any other suitable evidence, that an available remedy which he or she has not used was bound to fail (ibid., § 89).
In cases where an applicant seeks to prevent his or her removal from a Contracting State, a remedy will only be effective if it has suspensive effect. Conversely, where a remedy does have suspensive effect, the applicant will normally be required to exhaust that remedy. Judicial review, where it is available and where the lodging of an application for judicial review will operate as a bar to removal, must be regarded as an effective remedy which in principle applicants will be required to exhaust before lodging an application with the Court or indeed requesting interim measures under Rule 39 of the Rules of Court to delay a removal (ibid., § 90).
In determining whether the applicant in the present case has exhausted domestic remedies for the purposes of Article 35 § 1, the Court notes that the applicant herself has stated that she did not appeal against the Migration Court’s judgment to the Migration Court of Appeal. She has not given any reasons for her failure to lodge such an appeal.
In regard to the remedy in question, the Court observes that the Migration Court of Appeal is the final instance in the ordinary domestic proceedings determining an alien’s right to enter and remain in Sweden and that there is an unconditional right to appeal to that court against the Migration Courts’s judgment. Such an appeal has suspensive effect, i.e. the alien cannot be deported until a request for asylum has been finally determined. Following the lodging of an appeal, the Migration Court of Appeal first decides whether leave to appeal should be granted, i.e. if there are special reasons for hearing the case or if the determination of the Migration Court of Appeal may be of importance as a precedent. If leave to appeal is granted, the Migration Court of Appeal will decide the case on the merits. The Migration Court of Appeal thus has full jurisdiction to examine the lawfulness of the appealed decision and the merits of the case.
In these circumstances, the Court considers that the Migration Court of Appeal constitutes an effective remedy which the applicant was required to exhaust. By not lodging an appeal to that instance, the applicant has failed to meet the requirements under Article 35 § 1 of the Convention, and the application must be rejected in accordance with Article 35 § 4 of the Convention.
It follows that the request for interim measures under Rule 39 of the Court does not need to be determined, as the application has been declared inadmissible.
For these reasons, the Court by a majority
Declares the application inadmissible.
Claudia WesterdiekDean Spielmann
RegistrarPresident
Full & Egal Universal Law Academy