SECOND SECTION

DECISION

Application no. 37468/04 by Arsim HAZIRI et al. against Sweden

The European Court of Human Rights (Second Section), sitting on 5 September 2006 as a Chamber composed of:

Mr J.-P. Costa , President , Mr A.B. Baka , Mr I. Cabral Barreto , Mrs A. Mularoni , Mrs E. Fura-Sandström , Ms D. Jočienė , Mr D. Popović , judges , and Mr S. N aismith , Deputy Section Registrar ,

Having regard to the above application lodged on 21 October 2004 ,

Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court and the fact that this inte rim measure has been complied with,

Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,

Having deliberated, decides as follows:

THE FACTS

The applicant s , Mr Arsim Haziri , his wife Sevdije Haziri and their two children, Geroar Haziri and Ernita Haziri , are citizen s of Serbia , who were born in 1971, 1974, 1998 and 2001 respectively, and live in Falkenberg . They were represented before the Court by Mr A. Dalby Pedersen, a physician practising in Kärna .

The respondent Government were represented by Mr C.H. Ehrencrona of the Ministry for Foreign Affairs.

The facts, as submitted by the parties, may be summarised as follows.

In 1998 the first and second applicants, who are of Albanian ethnicity, arrived in Sweden from the town of Istok in Kosovo. On 14 April 1998 they applied to the Migration Board ( Migrationsverket ) for asylum and residence permits. They stated that as Kosovo-Albanians they had been persecuted by the Serbian population in Kosovo and that the second applicant had on one occasion been raped by several Serbian policemen. They also claimed that the second and third applicants suffered from health problems. The second applicant, notably, suffered from post-traumatic stress-syndrome and had been committed under the Act on Compulsory Psychiatric Care ( Lagen om psykiatrisk tvångsvård ). She had tried to commit suicide several times.

On 24 October 1998 the third applicant was born and an application for asylum was also made on his behalf.

On 3 August 1999 the applicants were granted temporary residence permits until 3 July 2000 .

On 31 October 2000 their applications for prolonged residence permits were rejected. The Migration Board found no grounds on which to grant the applicants asylum. It observed that the situation in Kosovo had stabilised and that the applicants ’ health problems were not severe enough to justify a grant of asylum. On 25 April 2001 the fourth applicant was born and an application for asylum was made on her behalf.

The applicants appealed to the Aliens Appeals Board ( Utlänningsnämnden ), maintaining their claims. On 19 September 2001 , the Aliens Appeals Board rejected the appeal. It reiterated, inter alia , that the family was not in need of protection and stated that their health problems could not be compared to a life-threatening illness or a very severe handicap, which was required for a grant of asylum on humanitarian grounds.

The applicants lodged eight new applications, all of which were rejected by the Aliens Appeals Board on the same grounds as the first application.

On 21 October 2004 the applicants requested the Court to indicate to the Swedish Government under Rule 39 of the Rules of Court the suspension of their deportation.

On 3 November 2004 the President of the Section applied Rule 39 as requested by the applicants. The Government were invited to provide the Court with an independent medical assessment regarding the second and fourth applicants. The Government subsequently provided this information.

On 5 November 2004 the Migration Board, following the Court ’ s request, decided to stay the deportation of the applicants until further notice.

On 5 April 2005 the Chamber decided to adjourn the case, to continue the application of Rule 39 until further notice and to request further information from the Government.

On 18 April 2006 the applicants informed the Court that, on 30 March 2006 , following the enactment of an interim amendment to the Aliens Act, on the basis of which the applicants ’ case had been reviewed, the Aliens Appeals Board had granted the applicants permanent residence permits in Sweden on humanitarian grounds and had repealed the deportation order. They also informed the Court that they nevertheless wished to maintain the application and extend their complaints to Articles 6 and 13 of the Convention.

On 11 May 2006 the Government invited the Court to strike the case out of its list of cases insofar as it relates to Article 3 of the Convention, to declare it incompatible ratione materiae as regards the claim under Article 6, and manifestly ill-founded as regards the claim under Article 13.

COMPLAINTS

The applicant s initially complained under Article s 2 and 3 of the Convention that their deportation to Kosovo would cause them irreparable harm due to their fragile health and that, upon return, they risked persecution. They later added that, since medically unqualified Migration Board lawyers had drawn conclusions on medical facts, they had been denied a fair hearing, contrary to Article 6 § 1 of the Convention, and, under Article 13 of the Convention, that they had been denied effective remedies.

THE LAW

Initially the applicants complained under Articles 2 and 3 of the Convention that, upon return to Kosovo, they would risk persecution and irreparable harm due to their health problems. Despite being granted permanent residence permits, they claimed that the matter had not been resolved as the permits were granted only after a medical examination, which would never have been carried out without the Court ’ s indication. The applicants therefore wished to maintain the application. They also complained under Article 6 of the Convention that, in earlier decisions, Migration Board lawyers without medical training had drawn conclusions on medical facts and that they had therefore been denied a fair hearing. They also claimed to have been denied effective remedies, contrary to Article 13 of the Convention.

The Swedish Government submitted that, since the applicants had now been granted permanent residence permits and the deportation orders had been repealed, the matter had been resolved. Thus, they invited the Court to strike the case out of its list of cases, in accordance with Article 37 § 1 (b) of the Convention. The Government also indicated that Article 6 is not applicable to asylum proceedings and that the applicants had indeed had access to effective remedies.

The Court note s that there has been no friendly settlement or agreed arrangement in the present case. The grant of the permanent residence permits and the repeal of the deportation order were measures which the Aliens Appeals Board took on 30 March 2006 under the interim amendment to the Swedish Aliens Act, for humanitarian reasons.

The Court considers that the circumstances of the present case lead to the conclusion that the matter has indeed been resolved. The applicants ’ initial complaint to the Court was essentially that their deportation to Kosovo would cause them irreparable harm, contrary to Articles 2 and 3 of the Convention. That threat of a potential violation has, however, been removed by virtue of the decision of 30 March 2006 to grant them permanent residence permits in Sweden (see, Paez v. Sweden , judgment of 30 October 1997 , Reports of Judgments and Decisions 1997 ‑ VII, p. 2445 , § 29) .

Moreover, in accordance with Article 37 § 1 in fine of the Convention, 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 application. Accordingly, the case should be struck out of the list.

For these reasons, the Court unanimously

Decides to discontinue the application of Rule 39 of the Rules of Cour t;

Decides to strike the application out of its list of cases.

S. Naismith J.-P. COSTA Deputy Registrar President