Application no. 33692/02
by Miriam ABRAHAM LUNGULI
The European Court of Human Rights (Fourth Section), sitting on 1 July 2003 as a Chamber composed of
Sir Nicolas Bratza, President,
Mr M. Pellonpää,
Mrs E. Palm,
Mrs V. Strážnická,
Mr M. Fischbach,
Mr S. Pavlovschi,
Mr J. Borrego Borrego, judges,
and Mr M. O’Boyle, Section Registrar,
Having regard to the above application introduced on 13 September 2002,
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 deliberated, decides as follows:
The applicant, Ms Miriam Abraham Lunguli, is a Tanzanian national, who was born in June 1984 in Dodoma, Tanzania. She is represented before the Court by Ms L. Isaksson, a lawyer practising in Umeå, Sweden.
The respondent Government are represented by their Agent, Ms Inger Kalmerborn of the Ministry for Foreign Affairs.
The facts of the case, as submitted by the applicant, may be summarised as follows.
In 1997, at the age of 13, the applicant’s father, a pastor in a Christian congregation, for the first time indicated that the applicant should undergo female genital mutilation (female circumcision) in order for her to be married as he could not afford to support her. The applicant’s mother objected to the practice.
On 25 June 1999 the applicant entered Sweden, with a false passport, in the company of her brother-in-law. However, she did not apply for asylum or a residence permit until 13 October 2000 and then initially under a false name.
On 2 April 2001 the Migration Board (Migrationsverket) rejected her application for asylum, refugee status and a residence permit and ordered that she be returned to Tanzania. It found, inter alia, that she was not at risk of being subjected to female genital mutilation as she was nearly 17 years old. Thus, she was not in the need of protection.
The applicant appealed against the decision to the Aliens Appeals Board (Utlänningsnämnden -hereinafter the “Appeals Board”) which, on 21 May 2001, rejected the appeal on the same grounds as the Migration Board, adding that she had not stated that her father had taken any action to have her subjected to this practice during her years at home, in spite of her living with her father.
Early June 2001 the applicant submitted a new application to the Appeals Board in which she maintained that she did risk female genital mutilation and therefore was in need of protection by the Swedish State. On 21 June 2001 the Appeals Board rejected the application as there were no new circumstances in the case and hence no reason for changing its earlier decision.
Late June 2001 the applicant lodged yet another application for a residence permit to the Appeals Board, which was rejected on 18 July 2001.
Subsequent to this decision the applicant went into hiding in order to avoid expulsion to Tanzania. She was discovered by the police on 10 September 2002 and placed at the Carlslund detention centre.
On the same day the applicant submitted a renewed application for a residence permit to the Appeals Board to which she attached a medical certificate stating that two of her sisters, in 1991 at the age of 11 and 13 respectively, had been subjected to female genital mutilation.
On 11 September 2002, the Appeals Board decided not to stay execution of the expulsion order. However, on 12 December 2002 the Appeals Board granted the applicant a permanent residence permit and, at the same time, quashed the decision on expulsion. In light of a new report from the Swedish Embassy in Tanzania concerning the extent and prevalence of female genital mutilation in that country, it found that there were legitimate reasons for believing that the applicant could be subjected to female genital mutilation if returned to Tanzania. As the practice had to be regarded as cruel and inhuman treatment, the Appeals Board considered that the applicant was in need of protection in accordance with the Aliens Act.
The applicant complained that, if expelled from Sweden to Tanzania, she would risk being subjected to female genital mutilation, which was to be considered as torture or inhuman and degrading treatment in violation of Article 3 of the Convention.
The application was introduced to the Court on 13 September 2002. On the same day, the President of the Chamber to which the case had been allocated decided, under Rule 39 of the Rules of the Court, to indicate to the respondent 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 applicant to Tanzania until the Chamber had had an opportunity to examine the application. On 24 September 2002 the Chamber decided, under Rule 54 § 3 (b) of the Rule of the Court, that the Government should be invited to submit written observations on the admissibility and merits of the case. Moreover, it decided to prolong, until further notice, the interim measure indicated under Rule 39.
On 13 December 2002 the Government informed the Court of the Aliens Appeals Board’s decision of 12 December 2002 to grant the applicant a permanent residence permit and invited the Court to strike the application out of its list of cases.
On 9 January 2003 the applicant’s lawyer was requested to submit her comments in reply to the Government’s invitation before 31 January 2003. On 12 March 2003, not having received any comments from her, the Registry sent her a letter by registered mail recalling the state of proceedings and requesting her to submit any comments that she might wish to make in reply before 28 March 2003. She was further informed that if she did not reply, “it may lead the Court to conclude that the applicant is no longer interested in pursuing her application and to strike it out of its list of cases.” The applicant’s lawyer did not reply.
In light of the above, and having regard to Article 37 § 1 (a) of the Convention, the Court finds that the applicant must be considered to have tacitly accepted the Government’s invitation to the Court to strike the case out of its list of cases and, thus, does not intend to pursue the application. Furthermore, as she has been granted a permanent residence permit and the decision to expel her has been quashed, the Court finds, in accordance with Article 37 § 1 (b), that the threat of a potential violation has been removed and the matter has been resolved. Moreover, it is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require a continuation of the application by virtue of Article 37 § 1 in fine.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
Michael O’Boyle Nicolas Bratza
ABRAHAM LUNGULI v. SWEDEN DECISION
ABRAHAM LUNGULI v. SWEDEN DECISION