FIRST SECTION
DECISION
Application no. 11628/21
Y and A
against Sweden
The European Court of Human Rights (First Section), sitting on 21 November 2023 as a Committee composed of:
Krzysztof Wojtyczek, President,
Lətif Hüseynov,
Erik Wennerström, judges,
and Liv Tigerstedt, Deputy Section Registrar,
Having regard to:
the application (no. 11628/21) against the Kingdom of Sweden lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 19 February 2021 by two Swedish nationals, Y and A, who were born in 1992 and 2016 respectively (“the applicants”) and were represented by Mr J. Lundqvist and Mr P. Bratt, lawyers practising in Stockholm;
the decision not to have the applicants’ names disclosed;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The case concerns the respondent State’s alleged refusal to repatriate the applicants, a woman and her child, who have been held in the Roj camp in north-eastern Syria.
2. The first applicant travelled to Syria in 2015 to join her husband there. In Syria she gave birth to the second applicant. The first applicant’s husband died in 2017 and has been accused of affiliation with “Daesh” (the so-called “Islamic State in Iraq and Levant”). In late 2017 or early 2018 the applicants were apprehended by the Syrian Democratic Forces and taken to the Roj camp.
3. It is unknown whether the applicants submitted any official request for repatriation, but in March 2022, after having lodged their application with the Court, they returned to Sweden with the assistance of the Swedish Government.
4. The applicants complained that Sweden’s refusal to repatriate them (prior to March 2022) constituted a violation of their rights under Articles 2 and 3 of the Convention in the light of the poor conditions in the Roj camp, and their right to enter the territory of the State of which they were nationals as guaranteed by Article 3 § 2 of Protocol No. 4 to the Convention. Finally, they complained, under Article 13 of the Convention, that there were no effective domestic remedies that could prevent the continuation of these violations.
THE COURT’S ASSESSMENT
5. The relevant principles regarding the issue of jurisdiction under Article 1 of the Convention, in cases such as the present, have been set out in H.F. and Others v. France [GC], nos. 24384/19 and 44234/20,
§§ 184-88, 14 September 2022.
6. For the same reasons and conclusions as set out in the H.F. and Others v. France judgment (ibid., §§ 191-203 and 215) the Court considers that the applicants’ complaints under Articles 2 and 3 of the Convention do not fall within the jurisdiction of Sweden. It follows that these complaints are incompatible with the provisions of the Convention and therefore inadmissible pursuant to Article 35 §§ 3 and 4 thereof.
7. As to the complaints under Article 3 § 2 of Protocol No. 4 (alone or in conjunction with Article 13 of the Convention), the Court reiterates its finding in H.F. and Others v. France, where France’s jurisdiction was established (ibid., §§ 204-16). Although the present case may differ in that the applicants failed to make an official request to the Swedish authorities for repatriation and assistance (compare ibid., § 213), the Court does not find it necessary to examine this issue further, since the complaints are in any event inadmissible for the reasons set out below.
8. The Court reiterates that under Article 35 § 1 of the Convention, it may only deal with an application after the exhaustion of domestic remedies, and that once an alleged continuing violation has ceased, the purpose of an effective remedy would be to obtain recognition and redress (see Bouhamla v. France (dec.), no 31798/16, § 38, 25 June 2019; M.K. and Others v. France, nos. 34349/18 and 2 others, § 168, 8 December 2022; and Camara v. Belgium, no. 49255/22, § 130, 18 July 2023).
9. In the present case the alleged ongoing violations ceased in March 2022 when the applicants returned to Sweden.
10. The Court is satisfied that there exists an accessible and effective remedy in Sweden capable of affording recognition and redress in respect of alleged violations of the Convention. Potential applicants may, as a general rule, be expected to lodge a domestic claim to seek compensation for alleged breaches of the Convention before applying to the Court, either by lodging a complaint with the Chancellor of Justice or suing the State before the ordinary courts (see, for example, Eriksson v. Sweden, no. 60437/08, § 52, 12 April 2012; Ruminski v. Sweden (dec.), no. 10404/10, §§ 37-38, 21 May 2013; and Marinkovic v. Sweden (dec.), no. 43570/10, 10 December 2013).
11. There is nothing to suggest that the ordinary courts or the Chancellor of Justice would refuse to consider the violations alleged in the present case. Furthermore, since the limitation period of such a claim is ten years from the point in time when the damage occurs, the remedy is still open to the applicants.
12. The Court therefore finds that the applicants should have exercised this remedy, even though, in view of its purely compensatory nature, it had not been effective until the applicants had returned to Sweden and thus after the application had been lodged with the Court (see, mutatis mutandis, Bouhamla, § 44; M.K. and Others v. France, § 169; and Camara, § 132, all cited above; and see also Pshenkina v. Sweden (dec.) [Committee], no. 7528/15, 8 December 2015).
13. Accordingly, the complaints under Article 3 § 2 of Protocol No. 4 to the Convention and Article 13 of the Convention are inadmissible for non‑exhaustion of domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 14 December 2023.
Liv Tigerstedt Krzysztof Wojtyczek
Deputy Registrar President
Full & Egal Universal Law Academy