SECOND SECTION

DECISION

Application no. 41983/04 by X and Others against Sweden

The European Court of Human Rights (Second Section), sitting on 31 January 2006 as a Chamber composed of:

Mr J.-P. Costa , President , Mr I. Cabral Barreto , Mr V. Butkevych , Mrs A. Mularoni , Mrs E. Fura-Sandström , Ms D. Jočienė , Mr D. Popović, judges , and Mr S. Naismith , Deputy Section Registrar ,

Having regard to the above application lodged on 29 November 2004 ,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.

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

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants, X , his wife and their daughter, are nationals of Azerbaijan . The parents were both bor n i n 1968 and the daughter in 1991. They were represented before the Court by Ms A. Enochsson, a lawyer practising in Stockholm . The respondent Government were represented by Mr C. H. Ehrenkrona, Ministry for Foreign Affairs.

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

The applicants arrived in Sweden on 29 April 2003 and applied for asylum, primarily invoking harassment from the Turkish population in Azerbaijan . The first applicant had also been questioned by the police and the public prosecutor due to his participation in demonstrations.

On 7 July 2004 the Migration Board ( Migrationsverket ) rejected the application for asylum, noting that the family ' s complaints related to acts committed by private individuals and finding no indication that the Azerbaijani State supported or tolerated these acts. It further found that the first applicant ' s political engagement had not been of such magnitude that he would risk persecution from the Azerbaijani authorities.

Upon appeal to the Aliens Appeals Board ( Utlänningsnämnden ) , the applicants submitted that, due to fear of reprisals, the first applicant had previously withheld that he had in fact had an active role in activities which had criticised the Azerbaijani Government. The applicants also submitted that the daughter ' s health was bad.

On 22 October 2004 the Appeals Board rejected the appeal, having basically confirmed the conclusions of the Migration Board.

On 26 November 2004 the applicants filed a new application for residence permits with the Aliens Appeals Board. They claimed that their health had deteriorated since the Migration Board ' s decision. The first and third applicant had tried to commit suicide and all of them had received psychiatric care, the second and third applicants for some time on a compulsory basis. The daughter was either apathetic or aggressive. She did not speak and had, during certain periods, refused to eat or drink. She could not be left alone. Her parents were unable to take care of her and the first applicant had even expressed threats to kill her and hi ms elf. The municipality had placed them in a flat where they would always have access to competent social-service personnel.

On 30 November 2004 the Aliens Appeals Board rejected the new application. In relation to the applicants ' health, the Board found that the material submitted regarding the first applicant did not show that his self-destructive acts had been due to a mental illness of such severity that it warranted a residence permit. It further found that the condition of the second and third applicants was not of such a life-threatening nature that care could not be provided in their home country.

Following the Court ' s indication on 1 December 2004, under Rule 39 of the Rules of Court, that it was desirable in the interests of the parties and the proper conduct of the proceedings before the Court not to deport the daughter to Azerbaijan until further notice, the Migration Board, on the same day, decided to stay the enforcement of the expulsion order in regard to all three applicants. On 22 February 2005 the Court decided to extend the indication under Rule 39 to cover also the first and second applicants.

The Swedish Government informed the Court on 19 January 2005 that, following the Migration Board ' s decision to stay the applicants ' expulsion, the second and third applicants had remained together in the accommodation provided by the social services. The first applicant, who resided elsewhere, visited his daughter daily and remained with her for several hours. According to information provided by the social services, the daughter ' s condition had, after an improvement, again deteriorated. She did not eat every day. Her contact with her mother was poor. The applicants ' counsel stated to the Court that a doctor was present in the home of the second and third applicants every weekday between 9 a.m. and 4 p.m.

According to a medical certificate issued on 31 March 2005 by Dr Gunnar Bäckström, chief physician and specialist in child and youth psychiatry at Danderyd hospital, the third applicant had developed a serious state of anorexia nervosa . She received specialist medical treatment and had been admitted to a children ' s hospital for short periods.

According to information provided by the Government, the third applicant thereafter also received psychiatric treatment, including meetings with a psychologist on a regular basis. During the summer of 2005 and as from 15 September 2005 , she had been admitted to Danderyd hospital for treatment of her anorexia.

On 19 September 2005 the applicants filed yet another application for residence permits with the Aliens Appeals Board.

On 11 November 2005 the Aliens Appeals Board reversed its earlier deportation decision and granted the applicants permanent residence permits on humanitarian grounds in view of the third applicant ' s health situation.

COMPLAINT

The applicants complain ed that their expulsion to Azerbaijan would involve a breach of Article 3 of the Convention.

THE LAW

On 11 November 2005 the applicants were granted permanent residence permits in Sweden . On the same day the respondent Government submitted therefore that the matter before the Court had been resolved and that the case should be struck out in accordance with Article 37 § 1 (b) of the Convention. On 5 December 2005 the applicants replied that they did not agree that the matter had been resolved or that the case should be struck out. They stated that the third applicant had been, and still was, in a very serious health situation since the Aliens Appeals Board ' s first decision to refuse them residence permits, and that the State had to take responsibility for what had been caused to the third applicant since that decision.

The Court note s that there has been no friendly settlement or agreed arrangement in the present case. The grant of permanent residence permits and the repeal of the deportation order were measures which the Aliens Appeals Board took on 11 November 2005 in response to a new application lodged by the applicants, having regard to the third applicant ' s poor health.

However, the Court considers that the circu ms tances lead to the conclusion that the matter has been resolved. The applicants ' initial complaint to the Court was essentially that their deportation to Azerbaijan would cause them irreparable harm contrary to Article 3 of the Convention. That threat of a potential violation has however been removed by virtue of the decision of 11 November 2005 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) . Thus, the Court is of the opinion that it is no longer justified to continue the examination of the application.

Moreover, in accordance with Article 37 § 1 in fine , the Court finds no public policy reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Convention). Accordingly, the application of Article 29 § 3 of the Convention should be discontinued and the case struck out of the list.

For these reasons, the Court unanimously

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

S. Naismith J.-P. Costa Deputy Section Registrar President