SECOND SECTION

DECISION

Application no. 35733/04 
by R. RUBINA and A. RUBIN 
against Sweden

The European Court of Human Rights (Second Section), sitting on 31 January 2006 as a Chamber composed of:

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

Having regard to the above application lodged on 7 October 2004,

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 decision to grant priority to the above application under Rule 41 of the Rules of Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The first applicant, Mrs Rusana Rubina, and the second applicant, Mr Alexandr Rubin, are Uzbekistani nationals, who were born in 1979 and 1969 respectively and are currently in Sweden. They are represented before the Court by Ms A. Enochsson, a lawyer practising in Stockholm.

The respondent Government are represented by their Agent, Mr C. H. Ehrenkrona of the Ministry for Foreign Affairs.

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

On 1 August 2002 the applicants arrived in Sweden and applied to the Migration Board (Migrationsverket) for asylum and residence permits. They stated that, in September 2001, the second applicant had dismissed two of his employees because they were supporters of an extremist Islamist group known as the “Wahhabis”. Later the same month, the two men had been arrested by the police and the second applicant had been informed that he would have to testify against them. The Wahhibis had also contacted him and demanded that he do not testify but that he pay their bail, which he had refused. In November 2001, the first applicant had been kidnapped by the Wahhibis who demanded a ransom for her release. During her abduction, the first applicant had been repeatedly raped and tortured by the kidnappers. After two weeks, the first applicant was released in exchange for money. However, due to their fear of the Wahhibis, the applicants had neither reported the kidnapping to the police, nor had they sought hospital treatment for the first applicant. Instead, a friend of the family, who was a doctor, had treated her and she had seen a psychologist privately, once a week between December 2001 and July 2002.

Moreover, in February 2002, the second applicant had been detained by the police and told that he had to co-operate with them and testify against the Wahhibis. After three days in detention, during which he had been ill-treated, he had agreed to co-operate with the police, following which he had been released. Thereafter, he had been summoned to the police station once a month to “prepare” his testimony against the suspects during the trial scheduled for the autumn of 2002. As a result of the police coercion to testify against members of the Wahhibis, and because of their fear of the latter, the applicants fled the country in July 2002.

One month after their arrival in Sweden, the first applicant visited an emergency unit at a hospital in Stockholm. She was diagnosed with severe Post-Traumatic Stress Disorder (PTSD) and depression, and was committed for closed psychiatric care (sluten psykiatrisk vård) where she remained for three weeks. She was given medication and, after her release from hospital, she commenced weekly visits with a counsellor (kurator). However, due to her deteriorating mental health, she was again committed to closed psychiatric care between 26 May 2003 and 22 June 2003.

On 27 October 2003 the Migration Board rejected the applicants’ request for asylum and residence permits. It noted that the applicants had been the victims of acts committed by an extremist group, and that they should have sought the help and protection of the authorities in their home country. By not having done so, the applicants had failed to show that the national authorities lacked the will and ability to protect them. The Board also considered that, if the second applicant had been ill-treated in detention, these were abuses committed by individual civil servants and not approved by the State. Furthermore, the Board observed that the kidnapping of the first applicant had occurred in November 2001 but that the couple had not left the country until July 2002. In conclusion, the Board found that the applicants’ fear of returning to Uzbekistan was unfounded and that they were not in need of protection in Sweden. Concerning the first applicant’s poor health, the Board considered that she did not suffer from a serious mental disorder (allvarlig psykisk störning) or any mental condition which rendered her incapable of assuming responsibility for her actions. The Board also noted that she had received some private psychological help while in Uzbekistan. Thus, it found that her mental health was not such that she could be granted a residence permit on humanitarian grounds.

The applicants appealed to the Aliens Appeals Board (Utlänningsnämnden) which, on 14 June 2004, rejected their appeal. It shared the reasoning of the Migration Board and considered that the continued deteriorating mental health of the first applicant was not so serious that she could be granted a residence permit on humanitarian grounds.

Due to the first applicant’s very poor state of health, the couple lodged a new application for residence permits on humanitarian grounds with the Aliens Appeals Board. The first applicant had, again, been committed to closed psychiatric care between 2 and 26 September 2004 because of her depression, suicidal thoughts and the risk of her becoming psychotic.

On 29 September 2004 the Aliens Appeals Board rejected the application. It first referred to its decision of 14 June 2004, in which it had already discussed the first applicant’s poor mental health, and then noted that she was still very unwell. However, the Board considered that it was a crisis reaction connected to the threat of deportation, and not a serious mental disorder.

On 19 October 2004 the applicants renewed their application for residence permits on humanitarian grounds, invoking the fact that, on 7 October 2004, the first applicant had again been committed to closed psychiatric care following a suicide attempt. On the same day, the Aliens Appeals Board rejected a request to stay the deportation of the applicants until the new application had been decided.

In the meantime, on 7 October 2004, the applicants requested the Court to indicate to the Swedish Government under Rule 39 of the Rules of Court to suspend their deportation to Uzbekistan.

On 2 November 2004 the President of the Section to which the case had been assigned decided to apply Rule 39 until further notice.

On 7 November 2005 the Government informed the Court that, on 17 October 2005, the Aliens Appeals Board had granted the applicants temporary residence permits in Sweden, valid until 1 November 2006, due to the very unstable situation in Uzbekistan. Consequently, the deportation order had also been repealed.

COMPLAINT

The applicants complained under Article 3 of the Convention that, if deported from Sweden to Uzbekistan, it would cause irreparable damage to the first applicant due to her very poor mental health. Moreover, they claimed that they would risk being subjected to treatment contrary to Article 3 by the Uzbekistani police or the Wahhabis.

THE LAW

The applicants complained that their deportation to Uzbekistan would be contrary to Article 3 of the Convention.

The Swedish Government submitted that, since the applicants had been granted temporary residence permits in Sweden until 1 November 2006 and the deportation order had been repealed, the matter had been resolved. Thus, they invited the Court to strike the case out of its list of cases in accordance with Article 37 § 1 (b) of the Convention.

The applicants claimed that the matter had not been resolved as they might still be deported once their temporary residence permits expired. Moreover, the first applicant remained in a very serious health condition for which the Contracting State had to take responsibility. In their view, they should be granted permanent residence permits in Sweden. Therefore, they wished to maintain their application before the Court and opposed that it be struck out.

The Court notes that there has been no friendly settlement or agreed arrangement in the present case. The grant of the temporary residence permits and the repeal of the deportation order were measures which the Aliens Appeals Board had taken on 17 October 2005 in response to a new application lodged by the applicants, having regard to the unstable situation in Uzbekistan.

However, the Court observes that the applicants’ initial complaint to the Court was essentially that their deportation to Uzbekistan would cause the first applicant irreparable harm and expose them to a risk of being arrested and ill-treated contrary to Article 3 of the Convention. That threat of a potential violation has now been removed for at least one year by virtue of the decision of 17 October 2005 to grant them temporary residence permits in Sweden. Upon the expiry of the temporary residence permits on 1 November 2006 the applicants will be able to apply for a prolongation of these permits or for permanent residence permits to the Migration Board and, in case of a negative decision, appeal to the national courts. Having regard to the fact that both the situation in Uzbekistan and the first applicant’s health condition may change considerably during this period, the Court cannot speculate on the future outcome of such a new application.

Thus, the Court concludes that, in the circumstances, it is no longer justified to continue the examination of the application, in accordance with Article 37 § 1 (c) of the Convention (see, J.A.J. v. Sweden, application no. 31750/96, Commission decision of 12 September 1996).

Moreover, 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. Accordingly, the application should be struck out of the list.

The Court notes, however, that it may, under Article 37 § 2 of the Convention, decide to restore the application to its list of cases if it considers that the circumstances justify such a course.

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

R. RUBINA AND A. RUBIN v. SWEDEN DECISION


R. RUBINA AND A. RUBIN v. SWEDEN DECISION