FIFTH SECTION
CASE OF P.Z. AND
OTHERS v. SWEDEN
(Application no.
68194/10)
JUDGMENT
(Striking out)
STRASBOURG
18 December 2012
This judgment will become
final in the circumstances set out in Article 44 § 2 of the
Convention. It may be subject to editorial revision.
In the case of P.Z. and Others v. Sweden,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Mark Villiger,
President,
Angelika Nußberger,
Boštjan M. Zupančič,
Ann Power-Forde,
Paul Lemmens,
Helena Jäderblom,
Aleš Pejchal, judges,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 27 November 2012,
Delivers the following judgment, which was adopted on the last-mentioned
date:
PROCEDURE
The case originated in an application (no.
68194/10) 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”) by three Afghan nationals (“the applicants”), on 16 November
2010. The President of the Section acceded to the applicants’ request not to
have their names disclosed (Rule 47 § 3 of the Rules of Court).
The applicants, who had been granted legal aid,
were represented by Ms R. Forotan Fard, a lawyer practising in Gothenburg. The Swedish
Government (“the Government”) were represented by their Agent,
Ms G. Isaksson, of the Ministry for Foreign Affairs.
The applicants alleged that, if returned from Sweden to Afghanistan, they would face a real risk of being persecuted or subjected to inhuman or
degrading treatment, in violation of Article 3 of the Convention.
The President of the Chamber decided to apply
Rule 39 of the Rules of Court, indicating to the Government that it was
desirable in the interests of the parties and the proper conduct of the
proceedings not to expel the applicants until further notice.
By a decision of 29 May 2012 the Court declared
the application admissible.
The Government filed further written observations
(Rule 59 § 1). The applicants submitted their claims for just satisfaction
(Rule 60).
THE FACTS
I. THE CIRCUMSTANCES OF
THE CASE
The applicants, a
woman and her two children, were born in 1975, 1995 and 2004 respectively.
On 21 May 2007 they arrived in Sweden and applied
for asylum. The first applicant’s husband and their sons were at the time
already in Sweden, where they had applied for asylum in 2005 but had not yet
received a final decision in their case. Before the Migration Board (Migrationsverket)
the first applicant alleged that the main reason why she and her children had
left Afghanistan was that her family had been persecuted by the Taliban, with
whom her husband had been in conflict for several years. When her husband had
left the country, the threats that had formerly been directed against him had
instead been aimed against her and her eldest daughter. She further claimed
that the situation in Afghanistan, particularly for women, was very difficult.
On 23 September 2007, after their asylum application had been rejected by the
Swedish authorities, her husband and their two sons had been deported to Kabul.
Before the Board the first applicant maintained that she was not aware of their
whereabouts after the deportation.
On 22 January 2008 the Migration Board rejected
the applicants’ asylum claim and ordered that they be deported to Afghanistan. Concluding that the information given by the first applicant was contradictory
and lacking in detail, the Board did not find her story credible. The Board
further held that her husband’s asylum claim had been rejected and that there
was no reason to make another assessment regarding the individual circumstances
in the applicants’ case. While the general security situation prevented the
applicants from returning to the province where they had lived before leaving Afghanistan, the Board held that they were able to settle in two other provinces, where the first
applicant had previously lived, or in Kabul, where they would reunite with the
other family members.
On 30 June 2008 the Migration Court (Migrationsdomstolen)
upheld the Board’s decision. On 8 September 2008 the Migration Court of Appeal
(Migrationsöverdomstolen) refused leave to appeal. The deportation order
against the applicants thereby acquired legal force.
Subsequently, the applicants applied to the
Migration Board for a review of the enforcement of the deportation order,
claiming that there were impediments to their enforcement. On 19 November
2008 the Board refused to review the case, finding that no new circumstances
warranting a review had been forthcoming. This decision was upheld by the Migration Court on 23 December 2008. Two further requests for review of enforcement
were subsequently refused, leave to appeal in the later proceedings being
refused by the Migration Court of Appeal on 11 June 2010.
II. RELEVANT DOMESTIC LAW AND PRACTICE
The basic provisions concerning the right of
aliens to enter and to remain in Sweden are laid down in the 2005 Aliens Act (Utlänningslagen,
2005:716). Pursuant to Chapter 12, section 22, the validity of a deportation
order, which has not been issued by a general court (i.e. not as a consequence
of a criminal conviction), expires four years after the date on which it
acquired legal force.
When a deportation order thus becomes
statute-barred, the alien may apply anew for asylum and a residence permit. A
new application entails a full examination by the Migration Board of the
reasons put forward by the alien and the Board’s decision may, if negative, be
appealed against to the Migration Court and the Migration Court of Appeal in
accordance with the rules pertaining to the ordinary proceedings concerning
asylum and residence permits. An appeal against a negative decision by the Board
has suspensive effect and the alien may accordingly not be expelled while the
proceedings are pending.
THE LAW
I. ALLEGED VIOLATION OF
ARTICLE 3 OF THE CONVENTION
The respondent Government claimed that the
application should be struck out, as the applicants no longer risked expulsion
from Sweden. The applicants did not submit any observations on this point.
The Court reiterates that the applicants alleged
that they would face treatment in breach of Article 3 of the Convention if they
were forced to return to Afghanistan. The order to deport them acquired legal
force on 8 September 2008 when the Migration Court of Appeal refused leave
to appeal in the original asylum proceedings. Under Chapter 22, section 12 of
the Aliens Act, the validity of that order expired four years later, that is,
on 8 September 2012. The deportation order has thus become statute-barred and cannot
be enforced.
The Court further notes that the applicants may,
in this situation, institute new - and full - proceedings for asylum and
residence permits, in which their claims will be examined on the merits by the
Migration Board and - in the event of appeals - by the courts.
Consequently, the Court finds that the
applicants are not, at the moment and for a considerable time, at risk of being
deported to Afghanistan. Should a new asylum request by them be rejected by the
domestic authorities and courts, they have the opportunity to lodge a new
application before the Court. In these circumstances, it is no longer justified
to continue the examination of the present application, having regard to Article
37 § 1 (c) of the Convention. Furthermore, 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 case.
In view of the above, it is appropriate to strike the case out
of the list.
II. RULE 39 OF THE RULES OF COURT
Having regard to its above conclusion that the
validity of the deportation order against the applicants has expired and that,
accordingly, they cannot be expelled from Sweden on the basis of that order,
the Court finds that there is no reason for the indication made to the
Government under Rule 39 of the Rules of Court (see above § 4) to remain in
force.
III. AWARD OF COSTS
Rule 43 § 4 of the Rules of Court provides:
“When an application has been struck out, the costs shall be at
the discretion of the Court. ...”
The applicants claimed compensation for costs in
the amount of 30,125 Swedish kronor (SEK) in respect of legal assistance (corresponding
to 20 hours of work) and of SEK 289 in respect of expenses, thus in total SEK
30,414, or approximately 3,500 euros (EUR).
The Court reiterates that the general principles
governing an award of costs under Rule 43 § 4 are essentially the same as under
Article 41 of the Convention (see Pisano v. Italy (striking out) [GC],
no. 36732/97, §§ 53-54, 24 October 2002 and Voorhuis v. the Netherlands
(dec.), no. 28692/06, 3 March 2009). According to the Court’s case-law, an
applicant is entitled to reimbursement of costs and expenses only in so far as
it has been shown that these have been actually and necessarily incurred
and were reasonable as to quantum (see, mutatis mutandis, Kalantari
v. Germany (striking out), no. 51342/99, 11 October 2001).
The Court notes that part of the applicants’
claim concerning costs of legal assistance was incurred in the domestic
proceedings following their third request for a review of the enforcement of
the deportation order. This part cannot be considered to have been necessary in
trying to prevent the alleged violation of the Convention. Having further
regard to the fact that the applicants have been granted legal aid by the
Court, it considers it appropriate to award the applicants, by way of costs and
expenses, the global and joint sum of EUR 2,000, including value-added tax
(VAT). To this amount is to be added any other tax that may be chargeable to
the applicants. As to default interest, the Court considers it appropriate that
it should be based on the marginal lending rate of the European Central Bank,
to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Decides to
strike the case out of the list;
2. Holds
(a) that the respondent State is to pay the applicants, within three months, EUR 2,000 (two thousand euros) to be converted into the currency of the respondent State at the rate
applicable at the date of settlement, plus any tax that may be chargeable to
the applicants, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amount at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
Done in English, and notified in writing on 18 December
2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Mark
Villiger
Registrar President
