Expulsion or extradition cases
THE LAW I. REQUEST TO STRIKE OUT THE APPLICATION 28. The applicant complained that his return to Libya would entail a violation of Article 3 of the Convention, which reads: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. The parties ’ submissions 29. The Government requested the Court to strike the case out of its list of cases, in accordance with Article 37 § 1 of the Convention, on the ground that following the Migration Board ’ s decision of 17 December 2014 the applicant no longer faced a risk of being expelled to Libya. Consequently, in their view, the matter had been resolved at the domestic level and they did not consider that there were any special circumstances regarding respect for human rights which required the continued examination of the application before the Court. In the alternative, the Government contended that the application should be declared inadmissible as the applicant could no longer claim to be a victim within the meaning of Article 34 of the Convention. 30. The applicant stated that he wished to maintain the application and asked the Court to proceed to consider the application on the merits. In his view, the “matter” before the Court had not been resolved, since it encompassed not only the question whether his potential future removal to Libya would violate Article 3. It also concerned the separate question whether the previous decisions by the Swedish authorities had been in breach of Article 3 since, at the time when they had taken their decisions, they knew or ought to have known that his removal to Libya would expose him to a real risk of inhuman or degrading treatment. Moreover, he considered that the domestic authorities ’ decisions were so flawed as to amount to a procedural violation of Article 3. The “matter” before the Grand Chamber now also included the correctness of the Chamber ’ s reasoning under Article 3. Furthermore, according to the applicant, respect for human rights required that the Grand Chamber continue the examination of the case, since it raised serious issues of fundamental importance relating to homosexuals ’ rights and how to assess those rights in asylum cases all over Europe. Lastly, referring to his arguments above, he considered that he was still a victim since the Swedish authorities had at no point acknowledged a violation of his rights under the Convention. While he was grateful for the permanent residence permit, it did not offer full redress, considering the worry, stress and uncertainty caused to him by the domestic authorities ’ initial decisions. B. The Court ’ s assessment 31. Article 37 § 1 of the Convention provides: “1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that (a) the applicant does not intend to pursue his application; or (b) the matter has been resolved; or (c) for any other reason established by the Court, it is no longer justified to continue the examination of the application. However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.” 32. The Court observes at the outset that, according to its established case-law in cases concerning the expulsion of an applicant from a respondent State, once the applicant no longer risks being expelled from that State, it considers the case to have been resolved and strikes it out of its list of cases, whether or not the applicant agrees (see, among other authorities, Paez v. Sweden, 30 October 1997, Reports of Judgments and Decisions 1997 ‑ VII; Sarwari v. Austria ( dec. ), no. 21662/10, 3 November 2011; M.A. v. Sweden ( dec. ), no. 28361/12, 19 November 2013; Isman v. Switzerland ( dec. ), no. 23604/11, 21 January 2014; O.G.O. v. the United Kingdom ( dec. ), no. 13950/12, 18 February 2014; and I.A. v. the Netherlands ( dec. ), no. 76660/12, 27 May 2014). 33. The reason for this is that the Court has consistently approached the issue as one of a potential violation of the Convention, being of the view that the threat of a violation is removed by virtue of the decision granting the applicant the right of residence in the respondent State concerned (see Paez, cited above, § 29). Following this approach, it has previously found that Article 3 would not be violated since the applicant no longer faced a real and imminent risk of being expelled (see, for instance, A.G. v. Sweden ( dec. ), no. 22107/08, 6 December 201 1, and H v. Norway ( dec. ) no. 51666/13, 17 February 2015 ). 34. As regards the present case, the Court notes that there has been no friendly settlement or agreed arrangement. The granting of a permanent residence permit to the applicant, which effectively repealed the expulsion order, was a measure taken by the Migration Board of its own motion on 17 December 2014, essentially on account of the deterioration in the security situation in Libya since the summer of 2014, as set out in the Migration Board ’ s Director General ’ s Legal Comment on the situation in Libya dated 4 November 2014 (see paragraphs 2 4 -2 5 above). It is further to be observed that, in so far as his application was declared admissible, the applicant ’ s initial complaint under the Convention was that he feared that his expulsion to Libya would expose him to ill-treatment contrary to Article 3 of the Convention. That threat of a violation was removed by the Migration Board ’ s decision of 17 December 2014 repealing the expulsion order – the enforcement of which had been stayed pending the proceedings – and granting him permanent residence in Sweden. 35. Therefore, in line with its case-law as set out above, the Court finds that the matter has been resolved within the meaning of Article 37 § 1 (b) of the Convention. 36. Contrary to what the applicant suggests, in examining this question the Court does not need to enquire retrospectively into whether a real risk engaging the respondent State ’ s responsibility under Article 3 of the Convention existed when the Swedish immigration authorities refused his asylum requests or when the Chamber adopted its judgment. These are historical facts but they do not shed light on the applicant ’ s current situation, in which the impugned risk has been removed; this latter circumstance is decisive for the Court ’ s finding that the matter has been resolved (see, mutatis mutandis, Saadi v. Italy [GC], no. 37201/06, § 133, ECHR 2008 ). 37. As to the applicant ’ s submission that there are special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case (Article 37 § 1 in fine ), the Court notes that in its decision of 17 December 2014 the Migration Board took the applicant ’ s sexual orientation into account. It found that he was in need of protection in Sweden because the deterioration in the security situation in his home country would put him at risk of being persecuted since he lived openly as a homosexual and could be expected to continue doing so on his return. Against this background, 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. 38. Accordingly, it is appropriate to strike the application out of the list of cases. II. RULE 39 OF THE RULES OF COURT 39. In view of the above, the application of Rule 39 of the Rules of Court is discontinued.
In this case the Court decided to indicate to the Swedish Government, under Rule 39 of its Rules of Court, not to expel the applicant to Libya until further notice. In December 2014 the applicant was granted a residence permit in Sweden. The Court considered that the potential violation of Article 3 of the Convention had now been removed and that the case had thus been resolved at national level. It therefore decided to strike the application out of the Court’s list of cases.