FIFTH SECTION

CASE OF B.Z. v. SWEDEN

( Application no. 74352/11 )

JUDGMENT

( Striking out)

STRASBOURG

18 December 2012

FINAL

1 8 /03/2013

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of B.Z. v. Sweden ,

The European Court of Human Rights ( Fifth Section ) , sitting as a Chamber composed of:

Mark Villiger , President, Angelika Nußberger , Boštjan M. Zupančič , Ann Power-Forde , Paul Lemmens , Helena Jäderblom , Aleš Pejchal , judges, and Claudia Westerdiek , Section Registrar ,

Having deliberated in private on 27 November 2012 ,

Delivers the following judgment , which was adopted on the last ‑ mentioned date:

PROCEDURE

1 . The case originated in an application (no. 74352/11) against the Kingdom of Sweden lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Eritrean national (“the applicant”), on 1 December 2011 . The President acceded to the applicant ’ s request not to have his name disclosed (Rule 47 § 3 of the Rules of Court).

2 . The applicant was represented by Ms M. Bexelius , a lawyer practising in Stockholm . The Swedish Government (“the Government”) were represented by their Agent, Ms G. Isaksson , of the Ministry for Foreign Affairs .

3 . The applicant alleged that, if returned from Sweden to Eritrea , he would face a real risk of being killed or imprisoned and subjected to torture or inhuman treatment, in violation of Article s 2 and 3 of the Convention.

4 . The acting President of the Chamber decided to apply Rule 39 of the Rules of Court, indicating to the Government that it was desirable in the interests of the parties and the proper conduct of the proceedings not to expel the applicants until further notice .

5 . By a decision of 29 May 2012 the Court declared the application admissible.

6 . The applicant and the Government each filed further written observations (Rule 59 § 1) .

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

7 . The applicant was born in 1942 .

8 . He arrived in Sweden on 19 April 2006 and applied for asylum on the same day. He submitted that he had been approached in his home in Eritrea by men in military uniforms , who had asked him about his sons, since they had apparently deserted from military service. He had stated that he did not know of their whereabouts, but the men had not believed him. He had been imprisoned, during which he had been beaten daily. He had managed to escape after five days, upon which he had immediately left for Sudan without returning home.

9 . On 4 October 2007 the Migration Board ( Migrationsverket ) rejected the applicant ’ s request for asylum and ordered his deportation to Eritrea . The Board noted that parents of deserters had reportedly been arrested and forced to either pay bail or serve in their children ’ s place. However, ta king into account that one and a half year had passed since the applicant ’ s departure and that he had otherwise not been of interest to the authorities, it considered that there was no remaining risk for him. Moreover, his injuries were not deemed to be of such severity as to give reason to grant him a residence permit.

10 . The applicant appealed and added that, following his departure, his wife had been visited by men looking for their sons. She had had difficulties with the military and had subsequently disappeared.

11 . On 11 March 2008 the Migration Court ( Migrationsdomstolen ) upheld the Board ’ s decision. The court questioned the applicant ’ s credibility. He had initially claimed that the military had taken his identity card, and later that he had lost it during the journey. However, he had subsequently submitted an identity card, without explaining how he had procured it. He had furthermore given contradictory information regarding the amount of money paid to the smuggler. It was in any event deemed remarkable that he would have been able to keep such a large sum of money during his imprisonment. Regardless of the credibility issue, the court found that he had not made it likely that he was at risk upon returning.

12 . On 3 June 2008 the Migration Court of Appeal ( Migrations- överdomstolen ) refused leave to appeal.

13 . The applicant later claimed that there was an impediment to the enforcement of the deportation order, stating that he was in poor health. On 28 May 2009 the Migration Board found that his medical condition did not constitute an impediment to enforcement.

14 . In a second request for review of the enforcement, the applicant added that his illegal departure from Eritrea and application for asylum abroad marked him as a traitor. On 27 October 2011 the Migration Board found that the request did not refer to any new circumstances giving reason to review the case. On 30 November 2011 the Migration Court upheld the Board ’ s decision.

II. RELEVANT DOMESTIC LAW AND PRACTICE

15 . The basic provisions concerning the right of aliens t o enter and to remain in Sweden are laid down in the 2005 Aliens Act ( Utlänningslagen , 2005:716). Pursuant to Chapter 12, section 22, the validity of a deportation order, which has not been issued by a general court (i.e. not as a consequence of a criminal conviction), expires four years after the date on which it acquired legal force.

16 . When a deportation order thus becomes statute-barred, the alien may apply anew for asylum and a residence permit. A new application entails a full examination by the Migration Board of the reasons put forward by the alien and the Board ’ s decision may, if negative, be appealed against to the Migration Court and the Migration Court of Appeal in accordance with the rules pertaining to the ordinary proceedings concerning asylum and residence permits. An appeal against a negative decision by the Board has suspensive effect and the alien may accordingly not be expelled while the proceedings are pending.

THE LAW

I . ALLEGED VIOLATION OF ARTICLE S 2 AND 3 OF THE CONVENTION

18 . The Court reiterates that t he applicant alleged that he would face treatment in breach of Article s 2 and 3 of the Convention if h e were forced to return to Eritrea . The order to deport hi m acquired legal force on 3 June 2008 when the Migration Court of Appeal refused leave to appeal in the original asylum proceedings. Under Chapter 22, section 12 of the Aliens Act, the validity of that order expired four years later, that is, on 3 June 2012. The deportation order has thus become statute-barred and cannot be enforced.

19 . The Court f urther notes that the applicant may, in this situation, institute new – and full – proceedings for asylum and r esidence permits, in which his claims will be examined on the merits by the Migration Board and – in the event of appeals – by the courts. It appears that such proceedings have already been initiated and are at pr esent pending before the Board.

In view of the above, it is appropriate to strike the case out of the list.

II . RULE 39 OF THE RULES OF COURT

21 . Having regard to its above conclusion that the validity of the deportation order against the applicant has e xpired and that, accordingly, he cannot be expelled from Sweden on the basis of that order , the Court finds that there is no reason for the indication made to the Government under Rule 39 of the Rules of Court (see above § 4) to remain in force .

III . AWARD OF COSTS

22 . Rule 43 § 4 of the Rules of Court provides:

“When an application has been struck out, the costs shall be at the discretion of the Court. ...”

23 . The applicant claimed compensation for pecuniary damage for loss of income in the amount of 108,000 Swedish kronor (corresponding to the difference between the Swedish social allowance and the amount that he had received as an asylum seeker as from 3 June 2008) and for non-pecuniary damage in an unspecified amount. He did not claim any reimbursement of costs and expenses.

24 . The Government pointed out that , when an application is struck out, the Court can only make an a ward for costs, and not for pecuniary or non-pecuniary damage.

25 . T he Court reiterates that Article 41 of the Convention allows it to award just satisfaction to the “injured party” only if it has previously “[found] that there has been a violation of the Convention or the Protocols thereto”, which it has not in this case. Accordingly, under Rule 43 § 4, the Court can award only costs and expenses to the applicant (see , for example, Sisojeva and Others v. Latvia [GC], no. 60654/00, § 132, ECHR 200 7-I). Noting that the applicant has not requested such reimbursement, it accordingly dismisses his claim for compensation.

FOR THESE REASONS , THE COURT UNANIMOUSLY

1. Decides to strike the case out of the list;

2 . Dismisses the applicant ’ s claim for compensation .

Done in English, and notified in writing on 18 December 2012 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

             Claudia Westerdiek Mark Villiger Registrar President