THIRD SECTION

DECISION

Application no . 36802/15 W.K. and M.F . against Sweden

The European Court of Human Rights (Third Section), sitting on 23 May 2017 as a Committee composed of:

Branko Lubarda, President, Pere Pastor Vilanova , Georgios A. Serghides , judges, and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 24 July 2015,

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

Having deliberated, decides as follows:

FACTS AND PROCEDURE

1. The applicants, a married couple, are Iraqi nationals who were born in 1941 and 1952 respectively and live in Stockholm. The President granted the applicants ’ request for their identity not to be disclosed to the public (Rule 47 § 4). They were represented before the Court by Ms S. Rubil , a lawyer practising in Stockholm.

2. The Swedish Government (“the Government”) were represented by their Agent, Mrs C. Hellner Kirstein, of the Ministry for Foreign Affairs.

3. The applicants, whose asylum requests in Sweden had been finally rejected by the migration authorities and courts, complained under Articles 2 and 3 of the Convention that their expulsion to Iraq would expose them to a real risk of being killed or subjected to torture or ill-treatment because of their Christian faith.

4. On 3 August 2015, the duty judge of the Court decided, under Rule 39 of the Rules of Court, to indicate to the Swedish Government that it was desirable in the interest of the parties and the proper conduct of the proceedings before the Court not to expel the applicants to Iraq until further notice.

5. On 11 September 2015 the application was communicated to the Government. In addition to the parties ’ observations, a joint third-party submission was received from the European Centre for Law and Justice, Aide à l ’ Eglise en Détresse and SOS Chrétiens d ’ Orient , which had been granted leave by the President of the Section to intervene in the written proceedings (Article 36 § 2 of the Convention and Rule 44 § 3 of the Rules of Court).

6. By letter dated 15 March 2017, the Government informed the Court that, on 10 March 2017, the Migration Agency ( Migrationsverket ) had granted the applicants a new examination of their case. It found that there were new circumstances in the case which could be assumed to constitute lasting impediments to the enforcement of the applicants ’ expulsion order. The Government noted that this meant that the applicants would receive a comprehensive examination of the merits of their case, taking into account both the new circumstances and the original reasons for protection relied upon by the applicants. Moreover, the decision to grant a new examination has automatic suspensive effect on the expulsion order which remains in force until a final decision in the re-examination proceedings. In view of this, the Government considered that the application should be declared inadmissible for non-exhaustion of domestic remedies and the interim measure lifted.

7. In reply to the Government ’ s request, on 5 April 2017 the applicants opposed their case being declared inadmissible and wished to maintain it. While they confirmed that they had been granted a new examination of their case by the Migration Agency, they submitted that this did not necessarily mean that they would be granted leave to remain in Sweden and that there was therefore an interest to continue the case before the Court. However, they agreed that the interim measure could be lifted.

THE LAW

8. The applicants complained that their expulsion from Sweden to Iraq would be contrary to Articles 2 and 3 of the Convention which, in relevant parts, read:

Article 2

“1. Everyone ’ s right to life shall be protected by law. ... ”

Article 3

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

9. The Court, being the master of characterisation to be given in law to the facts of the case, considers that the Government ’ s request falls to be examined under Article 37 § 1 (c) of the Convention rather than under Article 35 §§ 1 and 4.

10. The Court notes that the applicants do not for the time being risk expulsion from Sweden. Their new application for asylum and a residence permit in Sweden will receive a full examination on the merits by the Migration Agency. If the Agency ’ s decision is negative for the applicants, they may appeal against it to the Migration Court and the Migration Court of Appeal. Since such appeals have suspensive effect, the applicants cannot be expelled while the proceedings are pending. The Court further observes that, should the applicants ’ request for asylum in Sweden be rejected by all domestic instances, they may lodge a new application with the Court. In these circumstances, and having regard to Article 37 § 1 (c) of the Convention, the Court is of the opinion that it is no longer justified to continue the examination of the application.

11. 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.

12. In view of the above, it is appropriate to strike the case out of the list and, consequently, to discontinue the application of Rule 39 of the Rules of Court.

For these reasons, the Court, unanimously,

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

Done in English and notified in writing on 15 June 2017 .

FatoÅŸ Aracı Branko Lubarda              Deputy Registrar President