THIRD SECTION
DECISION
Application no. 4028/04
by Duniya ABDI IYOW
against the Netherlands
The European Court of Human Rights (Third Section), sitting on 11 March 2008 as a Chamber composed of:
Josep Casadevall, President,
Elisabet Fura-Sandström,
Corneliu Bîrsan,
Alvina Gyulumyan,
Egbert Myjer,
Ineta Ziemele,
Luis López Guerra, judges,
and Stanley Naismith, Deputy Section Registrar,
Having regard to the above application lodged on 29 January 2004,
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 regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Ms Duniya Abdi Iyow, is a Somali national, who was born in 1985 and is currently staying in the Netherlands. She is represented before the Court by Ms A.A.W.A. Vissers, a lawyer practising in ‘s‑Hertogenbosch. The Dutch Government (“the Government”) were represented by their Agent, Mr R.A.A. Böcker, of the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 6 April 2003 the applicant requested asylum in the Netherlands, submitting that she hailed from southern Somalia and belonged to the minority Midgan population group. Because of this latter fact she and her family were subject to harassment and discrimination by people belonging to more powerful clans. Her father was abducted by armed men and she had not seen or heard from him since. In 2003, the applicant had been robbed and an attempt was made to rape her.
By a decision of 9 April 2003 the Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie – “the Minister”) refused the applicant’s asylum request. The applicant did not appeal against this decision.
On 29 January 2004 the applicant was taken into detention with a view to expulsion. Having been informed that she was to be issued with a European Union travel document and deported to the so-called “relatively safe areas” in northern Somalia, via Nairobi (Kenya) and Mogadishu, on 30 January 2004 the applicant lodged an objection (bezwaar) with the Minister on 29 January. She further requested the Regional Court (rechtbank) of The Hague to issue a provisional measure to the effect that she would not be deported pending consideration of the objection.
The provisional-measures judge (voorzieningenrechter) of the Regional Court rejected the applicant’s request for a provisional measure on 30 January 2004.
On 29 January 2004 the applicant introduced the present application on a provisional basis. Following the decision of the Regional Court of 30 January 2004, she formalised the application that same day. She also requested the Court under Rule 39 of the Rules of Court to indicate to the Government not to expel her pending the proceedings before the Court. On 30 January 2004, the President of the Chamber decided to indicate to the Government that it was desirable in the interests of the parties and the proper conduct of the proceedings before the Court not to expel the applicant. Thereupon the Netherlands authorities cancelled the applicant’s expulsion. The applicant was also released.
On 7 July 2005 the Government informed the Court that the applicant was eligible for a residence permit on the basis of a temporary policy of protection for certain categories (categoriaal beschermingsbeleid) adopted by the Minister on 24 June 2005 in respect of asylum seekers coming from certain parts of Somalia. In letters of 23 August 2005 and 5 January 2006 the applicant’s representative informed the Court that the applicant had applied for and been issued a residence permit pursuant to this policy, valid from 30 June 2005 until 30 June 2008, and that, in light of this fact, she wished to withdraw her application to the Court.
COMPLAINT
The applicant originally complained under Article 3 of the Convention that her expulsion to the “relatively safe” areas in northern Somalia, via the south, would expose her to a real risk of torture or inhuman or degrading treatment, against which treatment she would be unable to obtain protection since there was no functioning government in Somalia.
THE LAW
The applicant complained that a forced return to Somalia would breach her rights under Article 3 of the Convention. However, the Court notes that the applicant has been granted a residence permit, that she is thus currently not at risk of being expelled and that, for this reason, she does not intend to pursue her application.
In these circumstances, and having regard to Article 37 § 1 (a) and (b) of the Convention and to the fact that it has already set out the relevant principles concerning a possible expulsion of a member of a minority group to the so-called “relatively safe” areas of Somalia from whence he or she did not originate in its judgment in the case of Salah Sheekh v. the Netherlands (no. 1948/04, 11 January 2007), 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.
In view of the above, it is appropriate to discontinue the application of Rule 39 of the Rules of Court and to strike the case out of the list.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
Stanley NaismithJosep Casadevall
Deputy RegistrarPresident
Full & Egal Universal Law Academy