FIFTH SECTION

DECISION

Application no . 25399/11 A.I. and Others against Sweden

The European Court of Human Rights (Fifth Section), sitting on 9 October 2012 as a Committee composed of:

Mark Villiger , President , André Potocki, Paul Lemmens, judges ,

and Stephen Phillips , Deputy Section Registrar ,

Having regard to the above application lodged on 16 April 2011,

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 observations submitted by the parties,

Having deliberated, decides as follows:

THE FACTS

The first and second applicants are a married couple, born in 1975 and 1983, respectively, originating from Grozny . The third, fourth and fifth applicants are their children, born in 2004, 2005 and 2010, respectively. The family is currently in Sweden . They were represented before the Court by Mr I. Vita, a lawyer practicing in Stockholm .

The Swedish Government (“the Government”) were represented by their Agent, Ms G. Isaksson , of the Ministry for Foreign Affairs.

A. The circumstances of the case

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

On 9 December 2008 the first applicant entered Sweden and applied for asylum and a residence permit while the second, third and fourth applicants entered Sweden on 16 October 2009 and, three days later, applied for asylum and residence permits. Before the Migration Board ( Migrationsverket ), they claimed, inter alia , the following. They were of Chechen ethnicity and the first applicant had participated in the Chechen liberty movement during the first Chechen war from 1994-1996 as well as during the second Chechen war in 1999. They had lived in Georgia from 1999 to 2007. Upon return to Grozny , in 2008, the first applicant and his parents had been interrogated by the Russian authorities and the father had later been found dead. The applicants had then fled from Russia . The applicants claimed that, if returned to Russia , they risked being ill-treated or even killed by the Russian authorities. Concerning Georgia , the applicants submitted that they did not hold Georgian residence permits and that Chechens were harassed in the country.

On 27 April 2010 the Migration Board rejected the applications and decided that the first, second, third and fourth applicants were to be deported to either Russia or Georgia . It first noted that the applicants had not proven their identities but that it was likely that they came from the Russian Federation . It further found it to be likely that the applicants had residence permits in Georgia given , inter alia , the long time that the applicants had lived in the country. Having regard to all the circumstances of the case, the Board found that the applicants had not made their claims credible as they had given contradictory and unclear information. Furthermore, they had not given any individual reasons for why they would be at risk if returned to Georgia .

The first, second, third and fourth applicants appealed to the Migration Court ( Migrationsdomstolen ), maintaining their claims and making certain additions.

On 15 November 2010 the Migration Court , after having held an oral hearing, upheld the Board ’ s decision. The court did not question that the first applicant had been active in the first Chechen war but noted that he had not held a high position and that many years had passed since his activities. Moreover, it found that he had been very vague concerning the reasons why the Russian authorities would still be interested in him and considered that he had failed to show that he would be of special interest for the Russian authorities upon return.

In the meantime, in August 2010, the fifth applicant was born and an application for asylum and a residence permit was lodged on his behalf. However, on 12 December 2010, the Migration Board rejected the application with reference to its decision of 27 April 2010, regarding the rest of the family. Upon appeal, the Migration Court , on 24 January 2011, rejected the appeal with reference to its judgment regarding the remaining family.

In a decision of 28 February 2011, concerning all applicants, the Migration Court of Appeal ( Migrationsöverdomstolen ) refused leave to appeal.

On 2 March 2011 the applicants applied to the Migration Board, under Chapter 12, section 19 of the Aliens Act ( Utlänningslagen , 2005:716) , for a re-examination of their application for asylum and residence permits on the ground that there were lasting impediments to the enforcement of their expulsion order.

On 29 April 2011 the Migration Board decided to grant the applicants a re-examination of their application. In reaching its decision, it noted inter alia that there was certain new country information about Northern Caucasus which made it necessary to further investigate the first applicant ’ s activities for the Chechen liberty movement in 1999. The Board further informed the applicants that the expulsion order against them had been suspended for the entire duration of the new proceedings, that is, until a final decision which could not be appealed against had gained legal force. The applicants were also granted a public counsel to represent them.

On 14 July 2011 the Migration Board, after having held new interviews with the first and the second applicants, rejected the application. It found that, even having regard to the new country information, the applicants had failed to make their claims probable but had given vague, incoherent and partially contradictory information.

The applicants appealed to the Migration Court where their case is currently pending.

B. Relevant domestic law and practice

The provisions applicable in the present case are laid down in the Aliens Act. The Act defines, inter alia , the conditions under which an alien can be deported or expelled from Sweden as well as the procedures relating to the enforcement of such decisions. It also sets out the conditions under which an alien may be granted a residence permit even if a deportation or expulsion order has gained legal force.

This is the case where new circumstances give reasonable grounds for believing, inter alia , that an enforcement would put the alien in danger of being subjected to capital or corporal punishment, torture or other inhuman or degrading treatment or punishment or where there are medical or other special reasons why the order should not be enforced (Chapter 12, section 18). If a residence permit cannot be granted under these rules, the Migration Board may instead decide to re-examine the matter. Such a re ‑ examination shall be carried out where it may be assumed, on the basis of new circumstances invoked by the alien, that there are lasting impediments to enforcement of the nature referred to in Chapter 12, sections 1 and 2, and these circumstances could not have been invoked previously or the alien shows that he or she has a valid excuse for not having done so (Chapter 12, section 19).

Moreover, paragraph 3 of Chapter 12, section 19 of the Act stipulates that a deportation or expulsion order may not be enforced before the Migration Board has decided whether a re-examination shall be granted or, if a re-examination is granted, before the matter has been decided through a decision which has gained legal force.

Matters concerning the right of aliens to enter and remain in Sweden are dealt with by three instances: the Migration Board, the Migration Court and the Migration Court of Appeal (Chapter 14, section 3, and Chapter 16, section 9 of the Act). Moreover, according to Chapter 18, section 1, point 3 of the Act, applicants are entitled to be represented before these bodies by publicly-appointed counsel in re-examination proceedings.

The Migration Court of Appeal has in a case (MIG 2008:36) clarified that the scope of the assessment during a re-examination should primarily be the new circumstances invoked which led to the granting of the re ‑ examination. However, it is also necessary to include the grounds for protection invoked by the alien in the initial proceedings for asylum since it is only through such a comprehensive examination that it is possible to assess if the grounds for protection invoked by the alien constitute a lasting impediment to the enforcement under Chapter 12, sections 1, 2 or 3 of the Act and may lead to the granting of a residence permit.

COMPLAINT

The applicants complained that an implementation of the deportation order to return them to Russia or Georgia would be in violation of Articles 2 and 3 of the Convention.

THE LAW

The applicants claimed that their deportation to Russia or Georgia would involve a violation of Articles 2 and 3 of the Convention. These read, in relevant parts, as follows:

Article 2

“1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. ... ”

Article 3

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

The Government submitted that the application should be declared inadmissible for failure to exhaust domestic remedies. They noted that the applicants had been granted a re-examination of their case and that these proceedings were currently pending. Since the deportation order, in accordance with the Aliens Act, was suspended during these proceedings, the applicants did not risk being deported. Moreover, although the Migration Board had rejected the applicants ’ claims in the new proceedings, it was not possible to speculate in the outcome before the Migration Court or the Migration Court of Appeal. The applicants might be granted residence permits in Sweden in which event, the case before the Court would be resolved.

The applicants opposed that their application be declared inadmissible for non-exhaustion of domestic remedies. They submitted that the re ‑ examination of their case was an extraordinary remedy which could not be considered effective since it offered very limited prospect of success.

The Court reiterates that the rule of exhaustion of domestic remedies in Article 35 § 1 of the Convention requires applicants first to use the remedies provided by the national legal system, thus dispensing States from answering before the European Court for their acts before they have had an opportunity to put matters right through their own legal system. For a remedy to be effective it has to be available in theory and in practice at the relevant time, meaning that it has to be accessible, capable of providing redress in respect of the applicant ’ s complaints and offer reasonable prospects of success. Article 35 must also be applied to reflect the practical realities of the applicant ’ s position in order to ensure the effective protection of the rights and freedoms guaranteed by the Convention (see NA v. the United Kingdom , no. 25904/07, 17 July 2008, § 88, with further references).

In cases where an applicant seeks to prevent his or her removal from a Contracting State , a remedy will only be effective if it has suspensive effect. Conversely, where a remedy does have suspensive effect, the applicant will normally be required to exhaust that remedy. Judicial review, where it is available and where the lodging of an application for judicial review will operate as a bar to removal, must be regarded as an effective remedy which in principle applicants will be required to exhaust before lodging an application with the Court or indeed requesting interim measures under Rule 39 of the Rules of Court to delay a removal ( ibid. , § 90).

In determining whether the applicants in the present case have exhausted domestic remedies for the purposes of Article 35 § 1, the Court first notes that the applicants finalised the initial proceedings for asylum by appealing against the Migration Board ’ s decision to the Migration Court and then to the Migration Court of Appeal which, on 28 February 2011, refused leave to appeal. Thus, it is clear that they have exhausted the normal domestic remedies available in Sweden in asylum proceedings.

However, the Court observes that the applicants then requested the Migration Board to grant them a re-examination of their case due to new circumstances and that this request was granted on 29 April 2011. Thus, the applicants were given a public counsel to represent them and were interviewed again by the Migration Board. As appears from the case-law of the Migration Court of Appeal (see above under relevant domestic law and practice) the scope of the assessment in re-examination proceedings is not limited to the new information invoked but also includes the grounds for protection invoked by the applicants during the initial proceedings. It follows that the re-examination proceedings are comprehensive and offer the applicants a full review on the merits of their case. The applicants have alleged that the re-examination proceedings offer very little prospect of success but, as the Court has consistently held, mere doubts as to the prospects of success of national remedies do not absolve an applicant from the obligation to exhaust those remedies ( NA v. the United Kingdom , cited above, § 89).

Moreover, the Court observes that the negative decision by the Migration Board in these new proceedings have been appealed against to the Migration Court where the case is currently pending. If the court ’ s judgment were to be negative for the applicants they may still appeal to the Migration Court of Appeal. It may be reiterated that the Court has already found that an appeal to the Migration Court of Appeal constitute an effective remedy which must be exhausted (see, Hajj Hussein v. Sweden ( dec .), no. 18452/11, 20 September 2011).

However, and which is of utmost important to the Court, during the entire proceedings the deportation order against the applicants is automatically suspended in accordance with Chapter 12, section 19, paragraph 3 of the Aliens Act. Thus, from 2 March 2011, when they applied for re-examination, and until the date when a final decision in these proceedings gains legal force, the applicants may not be deported from Sweden .

Here the Court observes that the applicants lodged the present application with the Court on 16 April 2011 and requested the Court to apply Rule 39 of the Rules of Court to stay the enforcement of their deportation order. The Court granted the request on 24 June 2011. At no point did the applicants inform the Court that, in fact, their deportation order had already been suspended in Sweden on 2 March 2011 and that they had been granted a re-examination of their case on 29 April 2011. The Court reiterates that applicants are under an obligation to inform the Court of all relevant information relating to their case and to submit all relevant documents. It was only after the Court had communicated the case to the Swedish Government that the Government informed the Court about these new proceedings. In other words, the applicants withheld essential information from the Court as, in reality, there was no need for the Court to consider interim measures in the instant case, or even consider their case since it was being re-examined in Sweden and the deportation suspended. In the Court ’ s view, this could be considered an abuse of the right to petition (Article 34 § 3 (a) of the Convention).

In any event, having regard to what has been set out above about the re-examination proceedings, the Court finds that, once the Migration Board granted a re-examination, these proceedings turned into an effective remedy which the applicants are required to exhaust before the Court may deal with the case. It may here be stressed that if the applicants are granted residence permits by the Migration Court or the Migration Court of Appeal, their case will be resolved and there will be nothing for the Court to consider. It follows that domestic remedies have not been exhausted as required by Article 35 § 1 of the Convention and the application must therefore be declared inadmissible.

Under these circumstances, the interim measure applied under Rule 39 of the Rules of Court also comes to an end.

For these reasons, the Court unanimously

Declares the application inadmissible.

St eph en Phillips Mark Villiger Deputy Registrar President