FOURTH SECTION

DECISION

Application no. 44421/02 by Hamid OVIHANGY against Sweden

The European Court of Human Rights (Fourth Section) , sitting on 9 March 2004 as a Chamber composed of

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mrs V. Strážnická , Mr J. Casadevall , Mr S. Pavlovschi , Mr J. Borrego Borrego , Mrs E. Fura-Sandström, judges , and Mr M. O'Boyle , Section Registrar ,

Having regard to the above application lodged on 20 December 2002,

Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court,

Having deliberated, decides as follows:

THE FACTS

The applicant, Hamid Ovihangy, is an Iranian national, who was born in 1973. He was represented before the Court by Mr P. Bergquist, a lawyer practising in Stockholm. The respondent Government were represented by Mr C. H. Ehrenkorna, Agent of the Swedish Government.

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

The applicant entered Sweden on 21 April 1999 and applied for asylum the following day. He stated that he was Kurdish by descent and claimed that he had taken part in anti-regime activities, for which he had been detained and tortured. The application was rejected by the National Immigration Board ( Statens invandrarverk ) on 17 September 1999 and by the Aliens Appeals Board ( Utlänningsnämnden ) on 11 August 2000. The Appeals Board found that ethnic minorities were not regularly discriminated against in Iran and that the applicant's fears of reprisals from the Iranian authorities were exaggerated.

Subsequently, the applicant lodged two new applications for a residence permit with the Aliens Appeals Board. He submitted medical certificates stating that he was suffering from a post-traumatic stress disorder and was suicidal. The Appeals Board rejected the applications on 5 October and 12 December 2000, respectively.

The applicant then filed a petition with the United Nations Committee Against Torture, which in a decision of 13 November 2001, delivered on 22 March 2002, rejected the petition. It stated:

“The State party [the Government of Sweden] has pointed to inconsistencies and contradictions in the petitioner's statements which in its opinion cast doubt on the veracity of his allegations. Even assuming, however, the truth of the petitioner's statements regarding his past experience of detention in Iran, the Committee considers, on the basis of the information provided, that the political activities that the petitioner claims to have carried out prior to and during the demonstrations in February 1999 are not of such a nature as to lead to the conclusion that he risks being tortured upon his return. This view is further supported by the fact that the petitioner was not the object of interest by Iranian authorities after he was released from detention in 1994, assuming that this occurred, and until the demonstrations in February 1999.”

On 22 August 2002 the applicant was placed in detention awaiting expulsion. His appeal against this measure was rejected by the County Administrative Court ( länsrätten ) of the County of Stockholm on 9 September 2002. Leave to appeal was refused by the Administrative Court of Appeal ( kammarrätten ) in Stockholm and the Supreme Administrative Court ( Regeringsrätten ) on 19 September and 2 October 2002, respectively.

On 17 September and 8 November 2002 the Aliens Appeals Board rejected two further applications for a residence permit.

On 18 October 2002 the Swedish police attempted to enforce the applicant's expulsion to Iran. It appears that during the flight and at the airport at Istanbul the applicant had fits of violence. The accompanying officers used force to calm him down. Finally, it was decided that the applicant should return to Sweden.

On his return to Sweden the applicant was again placed in detention. On 30 October 2002 the County Administrative Court rejected his appeal against that measure and on 20 December 2002 the Administrative Court of Appeal refused leave to appeal. On 23 December 2002 the applicant was released from detention and on 27 January 2003 the Supreme Administrative Court consequently struck the case out of its list of cases.

On 19 December 2002 the applicant lodged yet another application with the Aliens Appeals Board and requested that his expulsion be stayed. He submitted a medical certificate of 23 November 2002 issued by Dr. Hans Peter Söndergaard, chief physician at the Crisis and Trauma Centre in Stockholm and specialist in general psychiatry. Dr. Söndergaard stated that the applicant fulfilled criteria for post-traumatic stress disorder and that there was a certain risk that he would attempt to commit suicide. The Appeal's Board decided on 20 December 2002 not to stay the expulsion and the applicant submitted a further medical certificate by Dr. Söndergaard.

Following the Court's decision to apply Rule 39 of the Rules of Court, the Aliens Appeals Board, on 2 January 2003, stayed the enforcement of the expulsion order.

On 2 January 2003 the applicant made a police report regarding the force and medication used against him during the attempted expulsion on 18 October 2002. On 9 January 2003 the Public Prosecutor found that there was no reason to believe that a criminal offence had been committed and thus decided not to initiate any pre-trial investigation.

On 27 June 2003 the Aliens Appeals Board revoked the expulsion order and granted the applicant a permanent residence permit. It considered that it could not be excluded that the applicant's participation in radio and television broadcasts had come to the Iranian authorities' attention and that he would therefore risk persecution upon return to Iran.

COMPLAINTS

The applicant complained under Article 3 of the Convention that the enforcement of the expulsion order would constitute inhuman treatment. Furthermore, the expulsion of the applicant would according to the medical reports provoke a risk of a suicide attempt. In this context the applicant invoked Article 1 of the Convention.

The applicant also complained under Article 5 § 1 (f) of the Convention that he had been unlawfully detained.

Furthermore, the enforcement of the expulsion order would have prevented the applicant from enjoying the procedural guarantees laid down in the Convention regarding the accusations against the State officials and his claims for unlawful deprivation of liberty. In this context the applicant relied on Articles 5 § 5, 6 and 13 of the Convention.

THE LAW

On 27 June 2003 the applicant was granted a permanent residence permit in Sweden. On 9 October 2003 the Court was informed that the applicant did not wish to maintain his complaints under Articles 3 and 5 of the Convention, which had been communicated to the Government pursuant to Rule 54 of the Rules of Court. On 23 October 2003 the Government submitted that the case should be struck out of the Court's list of cases.

Article 37 of the Convention reads as follows.

“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that

(a) the applicant does not intend to pursue his application; or

(b) the matter has been resolved; or

(c) for any other reason established by the Court, it is no longer justified to continue the examination of the application.

However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.

2. The Court may decide to restore an application to its list of cases if it considers that the circumstances justify such a course.”

In light of the above circumstances, the Court is satisfied that the applicant does not intend to pursue his application and that the matter has been resolved for the purposes of Article 37 § 1 (a) and (b) of the Convention. In addition, the Court considers that no special circumstances regarding the respect for human rights as defined in the Convention and its Protocols require the examination of the application to be continued (Article 37 in fine of the Convention). The application should accordingly be struck out of the Court's list of cases.

For these reasons, the Court unanimously

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

Michael O'Boyle Nicolas Bratza Registrar President