FIFTH SECTION
DECISION
Application no. 32314/12
H.Y.
against Sweden
The European Court of Human Rights (Fifth Section), sitting on 12 November 2013 as a Committee composed of:
Angelika Nußberger, President,
Ganna Yudkivska,
André Potocki, judges,
and Stephen Phillips, Deputy Section Registrar,
Having regard to the above application lodged on 30 May 2012,
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 parties,
Having deliberated, decides as follows:
THE FACTS
The applicant is an Afghan national who was allegedly born in 1997. The President decided that the applicant’s identity should not be disclosed to the public (Rule 47 § 3). The applicant was represented before the Court by Ms A.-P. Beier, a lawyer practicing in Stockholm.
The Swedish Government (“the Government”) were represented by their agent, Ms H. Lindquist, of the Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 24 January 2012 the applicant applied for asylum in Sweden. However, the Migration Board (Migrationsverket) noted that the applicant had previously applied for asylum in Italy. On 23 May 2012 the Migration Board thus decided to transfer the applicant from Sweden to Italy in accordance with the Dublin Regulation. On 26 June 2012 the Migration Court (Migrationsdomstolen) rejected the applicant’s appeal of the Migration Board’s decision. The applicant appealed to the Migration Court of Appeal (Migrationsöverdomstolen), which, on 26 July 2012, refused leave to appeal.
On 30 May 2012 the applicant requested the Court to stay his transfer to Italy and, on 31 May 2012, the President of the Section decided to grant the request and apply Rule 39 of the Rules of Court.
Moreover, on 7 June 2013, the Court requested the Government to submit information on whether the applicant’s asylum application would be examined in Sweden – in the light of the judgment of the Court of Justice of the European Union, delivered on 6 June 2013 in case C-648/11, concerning the interpretation of Council Regulation (EC) No. 343/2003 of 18 February 2003 (Dublin Regulation II), in particular in relation to unaccompanied minors. Further, the Court requested the Government to indicate whether such an examination would give reason to amend their observations in the present case.
On 28 June 2013 the Government informed the Court that the Migration Board’s Director-General for Legal Affairs had issued a comment regarding the judgment mentioned above (Rättschefens kommentar angående EU‑domstolens dom den 6 juni 2013 i mål MA, BT och DA mot Secretary of State for the Home Department [mål C-648/11]). According to the comment, the Migration Board considered it clear that when an unaccompanied minor, with no family members legally present in a Member State, had logded asylum applications in more than one Member State, the Member State responsible for determining the asylum application was the Member State of the most recent application, i.e. the Member State where the minor was present, if the asylum application had not been examined in another Member State. In view of this, the Migration Board had decided that the applicant’s asylum application would be examined in Sweden, given, inter alia, that his asylum application had not been examined in Italy.
COMPLAINTS
The applicant complained that transferring him from Sweden to Italy would amount to a violation of Article 3 of the Convention due to the conditions for asylum seekers in Italy and his poor health. He also complained under Article 13 of the Convention that he had not been given legal assistance before the Swedish authorities.
THE LAW
By letter dated 28 June 2013, the respondent Government invited the Court to strike the application out of its list of cases, as it was clear that the applicant no longer risked being transferred to Italy. They noted that the Migration Board had decided that the applicant’s asylum application would be examined in Sweden, considering, inter alia, the fact that his asylum application had not been examined in Italy.
The applicant objected to his case being struck out, stating, inter alia, that he could not be considered to have had an effective remedy as regards his claims that he had been ill-treated in Italy and that he had not been appointed a legal counsel. Moreover, the Swedish authorities’ failings had caused the deterioration of his mental health.
The Court notes that the applicant does no longer risk to be transferred to Italy under the Dublin Regulation. His asylum application will be examined in substance by the Migration Board. The Migration Board will have to take a decision which, if a residence permit is not granted, may be appealed against to the Migration Court and the Migration Court of Appeal.
Moreover, while his asylum application is being considered in Sweden, he does not risk being sent to Afghanistan. Noting that the applicant may introduce a new application to the Court should his asylum application relating to Afghanistan be rejected, the Court finds that the matter under Article 3 must be considered to have been resolved, within the meaning of Article 37 § 1 (b) of the Convention. Consequently, pursuant to Article 37 § 1 (c), it is no longer justified to continue the examination of this complaint. Moreover, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the complaint.
Accordingly, it is appropriate to strike the complaint under Article 3 of the Convention out of the Court’s list of cases and to discontinue the application of Rule 39 of the Rules of Court.
As regards the applicant’s complaint under Article 13 of the Convention, the Court notes that the applicant could, and indeed did, appeal against the Migration Board’s decision to transfer him to Italy to the Migration Court and further to the Migration Court of Appeal. Moreover, the Court observes that the applicant was, upon arrival in Sweden, appointed a guardian ad litem to protect his interests. It follows that this complaint is manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention and must be rejected as inadmissible pursuant to Article 35 § 4.
For these reasons, the Court unanimously
Decides to strike the complaint under Article 3 of the Convention out of its list of cases;
Declares the remainder of the application inadmissible.
Stephen PhillipsAngelika Nußberger
Deputy RegistrarPresident
Full & Egal Universal Law Academy