SECOND SECTION

DECISION

Application no. 4144/05 
by Begum KOHINUR and Others 
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 K. Jungwiert
 Mr V. Butkevych
 Mr M. Ugrekhelidze
 Mrs A. Mularoni, 
 Mrs E. Fura-Sandström, judges
and Mr S. Naismith, Deputy Section Registrar,,

Having regard to the above application lodged on 31 January 2005,

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 Begum Kohinur, and her two children are Bangladeshi nationals who were born in 1965, 1994 and 1999, respectively. They 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 30 June 2000 the applicants arrived in Sweden from Bangladesh and applied to the Migration Board (Migrationsverket) for asylum and residence permits. The first applicant stated that, in 1999, her husband had gone into hiding because he had been accused of murder by political opponents and that, since then, she had heard nothing from him. However, the police had repeatedly come to their house and harassed them. On one occasion, the first applicant had been taken to a police station where she had been abused and ill-treated. After her release, she had tried to commit suicide but had been taken to hospital by her family. She stated that she was still in poor mental health and that this negatively affected her ability to care for her children. The second applicant had become depressed and had problems sleeping.

On 5 November 2001 the Migration Board rejected the application. It found no grounds on which to grant the applicants asylum and, with regard to their health situation, it observed that the first applicant had received care in Bangladesh and that adequate care would be available for her upon return as well. Moreover, the children’s deteriorating health was connected to their mother’s condition and their insecure situation in Sweden. Thus, it concluded that it would be best for the family to return to Bangladesh.

The applicants appealed to the Aliens Appeals Board (Utlänningsnämnden), maintaining their claims and adding that their mental health had deteriorated for which reason they had been placed at a Family Treatment Home. The first applicant had been diagnosed with Post Traumatic Stress Disorder while the second applicant had shown clear depressive signs and was anxious and afraid.

On 13 January 2003, the Aliens Appeals Board rejected the appeal. It found that the applicants could not be considered as refugees or be granted asylum and that their poor mental health was not so serious that they could be granted leave to stay on humanitarian grounds.

Subsequently, the applicants lodged several new applications for residence permits on humanitarian grounds with the Aliens Appeals Board, invoking their continued deteriorating health and submitting substantial medical documentation concerning all three of them. The Board rejected the applications, the last on 21 January 2005. In this last decision, the Board noted that the second applicant had developed symptoms of “depression-withdrawal”. She had become apathetic and did not talk, eat or drink, for which reason she was being tube fed. Her very poor mental health had remained unchanged all autumn, she had not reacted to treatment and continued to receive anti-psychotic medication. However, the Board considered that the applicants could receive adequate help and care in their home country. Consequently, it concluded that there were no impediments to deporting them to Bangladesh.

On 25 January 2005 the applicants lodged another new application with the Aliens Appeals Board and requested that the enforcement of the deportation order be stayed. On 27 January 2005 the Board decided not to stay the enforcement of the deportation.

On 31 January 2005 the applicants requested the Court to indicate to the Swedish Government under Rule 39 of the Rules of Court to suspend their deportation to Bangladesh.

On 3 February 2005 the President of the Section to which the case had been assigned decided to apply Rule 39. He further decided to request the Swedish Government to provide certain information.

On 25 February 2005 the Government provided the Court with the requested information and also informed the Court that the Aliens Appeals Board, on 4 February 2005, had rejected the applicants’ last new application, maintaining its previous conclusions and reasons. On the same date the Migration Board, following the Court’s request, had decided to stay the deportation of the applicants until further notice.

On 11 November 2005 the Government informed the Court that, on 10 November 2005, the Aliens Appeals Board had granted the applicants permanent residence permits in Sweden on humanitarian grounds in view of the second applicant’s poor health, and had repealed the deportation order.

COMPLAINT

The applicants complained under Article 3 of the Convention that, if deported from Sweden to Bangladesh, it would cause irreparable damage to them due to their very poor mental health, and in particular that of the second applicant.

THE LAW

The applicants complained that their deportation to Bangladesh would be contrary to Article 3 of the Convention because of their very poor mental health.

The Swedish Government submitted that since the applicants now had been granted permanent residence permits in Sweden 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, irrespective of the decision to grant them permanent residence permits, the matter had not been resolved as the second applicant remained in a very serious health condition, for which the Contracting State had to take responsibility. In their view, the national authorities’ decision to reject their initial request for residence permits had of itself entailed a breach of Article 3 of the Convention due to the anxiety, suffering and ill-health that it had caused the applicants. Therefore, the applicants 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 permanent residence permits and the repeal of the deportation order were measures which the Aliens Appeals Board had taken on 10 November 2005 in response to a new application lodged by the applicants, having regard to the second applicant’s very poor health.

However, the Court considers that the circumstances lead to the conclusion that the matter has been resolved. The applicants’ initial complaint to the Court was essentially that their deportation to Bangladesh would cause them irreparable harm contrary to Article 3 of the Convention. That threat of a potential violation has however been removed by virtue of the decision of 10 November 2005 to grant them permanent residence permits in Sweden (see, Paez v. Sweden, judgment of 30 October 1997, Reports of Judgments and Decisions 1997-VII, p. 2445, § 29). Thus, the Court is of the opinion that it is no longer justified to continue the examination of the application.

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

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

KOHINUR AND OTHERS v. SWEDEN DECISION


KOHINUR AND OTHERS v. SWEDEN DECISION