SECOND SECTION

DECISION

Application no. 17276/05 
by Berket OKUBAY 
against Sweden

The European Court of Human Rights (Second Section), sitting on 6 December 2005 as a Chamber composed of:

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

Having regard to the above application lodged on 11 May 2005,

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

Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court.

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Berket Okubay, is an Eritrean national who was born in 1976 and is currently in Sweden. He is represented before the Court by Mr S. de Geer, a lawyer practising in Stockholm.

The respondent Government are represented by their Agent, Ms A. Linder of the Ministry for Foreign Affairs.

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

On 1 February 2001 the applicant arrived in Sweden and applied to the Migration Board (Migrationsverket) for asylum and a residence permit. He stated that, in 1996, he had been drafted for military service in the Eritrean army and that he had served there until he had fled from the country in June/July 2000. He claimed that he had fled from Eritrea because he considered that the Eritrean regime was unjust and he did not agree with its policies. Moreover, he was convinced that, if he were forced to return, he would be imprisoned for life or even executed for having deserted from the army with a weapon during wartime.

On 28 February 2003 the Migration Board rejected the application. It found that the applicant’s account in many parts was not credible or coherent and that he would not risk being executed if returned. Moreover, the imprisonment that he might possibly face for desertion would not be harsher than prescribed by Eritrean law. Upon appeal, the Aliens Appeals Board (Utlänningsnämnden) upheld the Migration Board’s decision in full.

The applicant lodged a new application for asylum, invoking inter alia the general situation in Eritrea, which was very unstable, and adding that returned asylum seekers had been arrested upon arrival in Eritrea and placed in detention incommunicado. He also referred to the UNHCR recommendation that countries should not deport rejected asylum seekers to Eritrea. On 20 January 2005 the Aliens Appeals Board rejected the new application as it considered that the new information invoked by the applicant did not change its previous decision.

On 25 May 2005 the applicant requested the Court to indicate to the Swedish Government, under Rule 39 of the Rules of Court, the need to suspend his deportation to Eritrea.

On 26 May 2005 the President of the Section to which the case had been allocated decided to apply Rule 39, following which the Migration Board, in response to the Court’s request, stayed the deportation of the applicant until further notice.

On 31 October 2005 the applicant informed the Court that, on 19 October 2005, the Aliens Appeals Board had granted him a permanent residence permit in Sweden. Thus, he wished to withdraw his application.

COMPLAINT

The applicant had originally complained under Articles 2 and 3 of the Convention, as well as under Article 1 of Protocol No. 6 to the Convention, that his deportation to Eritrea would entail a serious risk of him being executed or tortured and imprisoned upon return.

THE LAW

The applicant originally complained that his deportation to Eritrea would be contrary to Articles 2 and 3 of the Convention, as well as Article 1 of Protocol No. 6. However, he has now been granted a permanent residence permit in Sweden and wishes to withdraw his case.

The Court notes that the applicant no longer risks deportation from Sweden and that he does not intend to pursue his case. In these circumstances, and having regard to Article 37 § 1 (a) and (b) of the Convention, the Court is of the opinion that it is no longer justified to continue the examination of the application. 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.

For these reasons, the Court unanimously

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

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

OKUBAY v. SWEDEN DECISION


OKUBAY v. SWEDEN DECISION