FIRST SECTION
DECISION
Application no. 57440/10
Loqman ABDOLLAHPOUR
against Norway
The European Court of Human Rights (First Section), sitting on 29 May 2012 as a Chamber composed of:
Nina Vajić, President,
Peer Lorenzen,
Elisabeth Steiner,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Linos-Alexandre Sicilianos,
Erik Møse, judges,
and Søren Nielsen, Section Registrar,
Having regard to the above application lodged on 4 October 2010,
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
1. The applicant, Mr Loqman Abdollahpour, is an Iranian national who was born in 1979 and lives in Lørenskog. The Norwegian Government (“the Government”) are represented by Mrs F. Platou Amble, Attorney, Attorney‑General’s Office (Civil Matters), as their Agent, assisted by Ms K. Mellingen, Attorney.
A. The circumstances of the case
2. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Asylum application
3. The applicant arrived in Norway on 19 June 2003 without passport or other recognised travel document. When applying for asylum, he stated that he was of Kurdish ethnic origin and came from Piranshahr (a town situated in the West Azerbaijan Province in north-western Iran), that he was not married and had no children. He feared being imprisoned and tortured by the Iranian authorities if returned because he had been active in working for the Kurdish Democratic Party in Iran (KDPI).
4. The applicant submitted that in 1996 he had been recruited by four KDPI members. They had known that he had a cousin and a brother in Iraq who worked for the party. The applicant formed part of a cell together with his cousin and a nephew. The cousin had been the leader of the group and had been the only person who had met their contact person on the Iraqi side. The members of the cell cooperated and had met once a month. They had selected a part of the Piranshahr town in Iran and had mapped out escape routes so that it would be safe to distribute leaflets. They had also tried to identify people who worked for the regime. The applicant had been active in distributing political materials and in recruiting new members.
5. According to the applicant the KDPI’s office in Iraq had invited him to travel to its main base there in order to discuss with other KDPI activists. During his journey he had been recognised by a neighbour from Iran who had acted as a guard at his cousin’s house when the applicant had spent the night there. The neighbour had known that the applicant had come to meet with KDPI activists who were responsible for the party’s activities in Piranshahr.
6. After 40 to 45 days the applicant had been told that the neighbour who had recognised him had given himself up to the authorities in Iran. The applicant stated that the neighbour no longer wished to be a guerrilla soldier. The applicant had then understood that the neighbour would inform the authorities about the applicant and therefore went into hiding for ten days. The applicant further explained that his brother had told him that the secret services had come to ask about him and had detained his brother for two days.
7. The applicant then felt that his life was in danger. In 2000 he had left Iran with the help of a smuggler, to Salmas and from there to Turkey. There he had applied for asylum through the UNHCR, but without success. A smuggler had also assisted him to travel illegally from Turkey to Norway.
2. Rejection by the Directorate of Immigration
8. On 7 September 2004 the Directorate of Immigration rejected the applicant’s asylum application, finding it insufficiently probable that the applicant would be exposed to persecution for the purposes of the Refugee Convention and national law.
9. The Directorate did not find it likely that a guerrilla soldier linked to the party organisation in Iraq would have reported to the Iranian authorities because he wished to break away from that organisation. A person of such background would risk serious reactions from the Iranian authorities. Therefore, the Directorate did not find it sufficiently probable that the applicant would be in the authorities’ limelight because of links to the KDPI.
10. Making an assessment of the concrete circumstances as a whole, the Directorate did not find that there were such weighty humanitarian considerations or that the applicant had strong links to Norway as could warrant a residence permit. Since he had relatives living in Iran, it could not be decisive that he had a brother living in Norway.
3. Appeal
11. On 28 September 2004 the applicant, represented by the same lawyer as before the Directorate, appealed against the latter’s rejection, arguing that it had erroneously based itself on the consideration that the neighbour had been a guerrilla soldier linked to the party organisation in Iraq. The applicant pointed out that this person had been working for the Iranian regime but had pretended that he was a guerrilla soldier so that he could spy on the activities of the KDPI and report on this to the Iranian authorities. He had withdrawn from the KDPI in Iraq when he feared that the party would discover his spying activities. This had not clearly come to light in the asylum interview and the Directorate of Immigration had based its decision on wrong facts. The neighbour would not have risked serious reactions from the authorities but feared the reactions of the KDPI if he were to be revealed, which had been the reason why he had withdrawn as a guerrilla soldier. The applicant had received this information in Turkey where he had been in contact with the KDPI. His brother, Salah, had also told the applicant about the matter. Accordingly, the person in question had possessed all the information about the applicant and had reported to the Iranian authorities. They had come to his home an had asked for him and his brother, Amir, had been arrested while the applicant was absent. This showed that the authorities had been aware of the applicant’s activities. He was convinced that he would be arrested and executed should he be returned to Iran.
12. The applicant further submitted that his brother, Salah, had also been linked to the KDPI in Iraq and had been granted political asylum in Norway. This fact would worsen the applicant’s situation if returned to Iran. Iranian authorities would also associate him with further activities in Norway. The Directorate had in its decision acknowledged that links to the KDPI would lead to serious reactions form the Iranian authorities.
13. The Directorate of Immigration refused to alter its decision, finding no new information that could warrant this.
14. On 14 March 2005 the Norwegian Organisation for Asylum Seekers (NOAS) supported the applicant’s contention that the Directorate had based itself on an error of fact when considering that it was not probable that a guerrilla soldier linked to the party organisation in Iraq would report to the Iranian authorities because he wished to break away from that organisation. NOAS further pointed to the fact that the applicant still was a KDPI member and that during the visit of its Secretary General, Mr Mustafa Hejris, in Norway in March 2005 the applicant had taken part in a KDPI meeting and had been photographed together with him.
15. NOAS in addition referred to a report of the Schweizerische Flüchtlingshilfe according to which Iranian citizens who left the country illegally or did not follow the rules on exit risked between one month and three years’ imprisonment and/or a fine upon return, and would face ransacking and questioning about the reasons for their sojourn abroad as well as electronic verification of whether they had breached Islamic laws or criminal law.
4. Rejection by the Immigration Appeals Board
16. On 13 June 2006 the Immigration Appeals Board rejected the applicant’s appeal, stating inter alia:
“The Board observes that the [applicant]’s account of how he attracted the attention of the authorities owing to KDPI activities has not been made sufficiently probable to be relied upon. In the asylum interview, the [applicant] informed that his work for the party was discovered by a neighbour from Iran who worked as a guerrilla soldier for the KDPI, but who later gave himself up to the authorities. The Board concurs in the Directorate’s assessment, and finds this very improbable.
It was further argued in the appeal that the Directorate had based its decision on an incorrect premise. It was made clear that the [applicant]’s neighbour from Iran did not work for the KDPI, as the Directorate had assumed, but as a spy for the Iranian authorities. According to information the [applicant] was said to have received from KDPI members, his neighbour had as time went on become afraid of being revealed as a spy for the authorities, and had therefore pulled out. The [applicant] has also submitted that the Iranian regime carries out considerable intelligence activities by infiltrating agents into oppositional political parties.
The Board observes that, in the asylum interview, the [applicant] had been asked several specific questions on precisely this topic, and that he had given a detailed account of the events. The [applicant] had moreover read and signed the transcript of his answers. The [applicant] had also been informed that this was probably the only interview that would be held. In the view of the Board, it therefore seems remarkable and implausible that the [applicant] should present a new explanation of this matter in the appeal. The Board has therefore very little faith in the [applicant]’s testimony on this point.
...
The Board has noted the declarations of 29 October 2004 from the Kurdish Cultural Association, the letters of support of 14 February 2005 from the Kurdish Democratic Party in Norway and of 8 March 2005 from the East Kurdistan Writers’ Association, the confirmation of 26 April 2005 from the Kurdish Youth Association of Norway and the membership confirmation of 10 March 2006 from the KDPI in Norway, but does not find that it is able to attach decisive importance to these documents. Reference is made to the very general nature of the declarations, and that they do not associate the [applicant] with concrete episodes entailing a well-founded fear of persecution.
The Board has further noted the submissions from NOAS, but does not find that it can attach decisive importance to these either. The Board observes that reference is made to reports of a general nature that do not associate the [applicant] with concrete episodes entailing a well-founded fear of persecution.
The Board therefore does not find sufficient evidence that the [applicant] had aroused the attention of the authorities of his country of origin to such an extent that he foreseeably risked persecution prior to his departure.
The Board finds otherwise reason to doubt that the [applicant] has been active as a member of the party in his country of origin by distributing flyers, etc. Besides referring to the above points, which, in the view of the Board, weaken his general credibility, it is observed that the party, according to the information available to the Board, no longer espouses the goal of an independent Kurdistan in its party program nor does it take part in armed conflict. However, the [applicant] has asserted the opposite in his self-declaration and in a supplementary letter. Nor is there any evidence that the party has been conspicuous in distributing flyers with oppositional content in Kurdish areas of Iran in recent years. Nor in the Board’s view do the [applicant]’s answers and the information in his self-declaration and asylum interview support his statements concerning his activities prior to his departure. His account of his activities appears partly superficial and of little evidential value in itself, cf. otherwise the above. However, this is not decisive, since it cannot regardless be assumed that his alleged activities are known to the Iranian authorities or that it is otherwise foreseeable that the authorities will persecute him.
The Board has taken into consideration that the [applicant] has participated in various political events in Norway, and has noted the various websites where this is said to have been documented, and where pictures of the [applicant] in the company of members of the KDPI have been published. After assessing these websites, the Board does not consider that this will entail any foreseeable danger of persecution on his return. As far as the Board is aware, the Iranian authorities show relatively little interest in the political activities of Iranians in exile, and do not view these as constituting any real threat to the regime. The [applicant] cannot on the basis of the above-mentioned activities be said to appear to be a particularly important dissident or to be particularly at risk of serious reactions as a consequence of these activities.
The Board therefore does not find sufficient evidence that the [applicant] will be of particular interest to the authorities as a consequence of his political involvement while in Norway.
As regards the KDPI background of his brother and other family members, the Board observes that, as far as the Board is aware, the Iranian authorities do not engage in derivative persecution of family members or other relatives of politically active persons.
Making an overall assessment, the Board therefore finds that it has not been shown to be sufficiently probable that the [applicant] would risk persecution on return to his country of origin, and he is not to be deemed a refugee within the meaning of the Immigration Act and the Refugee Convention.”
17. Nor did the Board find, even on a reduced standard of proof, any risk of the applicant loosing his life or being subjected to ill-treatment should he be returned.
18. Finally, the Board did not find that granting the applicant a residence permit was warranted by strong humanitarian considerations. He was an adult man without serious health problems who had strong links to his home country and who did not have any particular links to Norway, although he had a brother and a cousin living there.
5. Refusals of requests for reconsideration
19. The applicant subsequently made a number of requests for reconsideration of the Board’s rejection of 13 June 2006, but to no avail. After two rejections, dated 22 August and 19 December 2006, respectively, the applicant, represented by a new lawyer, presented several new factual arguments to the Board requesting it to reconsider the matter. Together with his brother, he had cooperated with the resistance movement in Iraq. Whilst the brother had obtained asylum in Norway the applicant’s asylum request had been refused. They had arrived in Turkey five days apart from each other in 2000. In Turkey they had assumed that the authorities would return them to Iraq. They had therefore decided that only one of them should inform that they had been in Iraq working for the resistance movement, so that one of them should have the chance to get out of Turkey without being returned. As to why they had adopted such a strategy, the applicant stated that he would forward documentation that proved that he had been in Iraq working for the resistance. He also alleged that while in Iraq, he had made political songs against the Iranian regime that had been disseminated in Iran. He believed that he was known in Iran also for this reason.
20. On 14 December 2007 the Board rejected the request. It considered that the new information in part expanded on the basis for his asylum claim, in part conflicted with his earlier explanation. Neither in the asylum interview, nor in his appeal, had the applicant stated that he had worked for the KDPI in Iraq. On the contrary, he had affirmed that his activities had been limited to his hometown Piranshahr. Also the information that he and his brother had assumed that the Turkish authorities would return them to Iraq was new and inconsistent with what the applicant had stated during the asylum interview. The Board did not find the applicant’s new information credible.
21. On 25 June 2008 the Board dismissed another revision request in which the applicant had relied on a statement from the KDPI in the Sulaymaniyah Governorate in Iraq regarding his activities for the party.
22. On 1 July 2009 it refused a further request invoking the general security situation in Iran after the elections and that he had married (on 24 May 2008) a Norwegian citizen, Mrs Helala Rezai, in accordance with Islamic tradition.
23. The Board rejected yet a further petition, on 4 February 2010. The applicant had invoked that he had left Iran twelve years ago, he had stayed in Norway for the past seven years, he had worked lawfully and paid taxes in Norway, his wife and brother were Norwegian citizens and his wife was pregnant. As to the latter, the Board drew attention to the possibility to apply for family reunification.
6. Renewed expulsion order and refusal of re-entry
24. On 15 September 2010 the Directorate of Immigration decided that the applicant should be expelled from Norway indefinitely (sections 66 (a) and 71(2) of the Immigration Act 2008) on the ground of his aggravated breaches of Norwegian immigration laws: He had avoided the implementation of decisions that implied a duty for him to leave the country, had resided illegally in Norway for four years, and had worked illegally in Norway after the revocation of his work permit on 13 June 2006. The Directorate observed that this was not a disproportionate measure. He had had no legitimate expectation of being able to stay in Norway when he married Mrs Rezai on 24 May 2008 and no or little weight could be attached to the fact that he had a brother living in Norway. The Directorate considered that this decision was consistent with Article 8 of the Convention.
25. By a further decision of 7 April 2011, the Board limited the duration of the prohibition on re-entry to five years. In this connection it reiterated that no document had been submitted to the effect that the couple had concluded a valid marriage (under Norwegian law). Neither their marriage nor their parenthood had been registered in the population register.
7. Application of Rule 39 of the Rules of Court
26. In the meantime, on 25 October 2010, the Court decided, in the interests of the parties and the proper conduct of the proceedings before the Court, to indicate to the Norwegian Government, under Rule 39 of the Rules of Court, that the applicant should not be expelled to Iran until further notice.
B. Relevant domestic law and practice
27. Under the Code of Civil Procedure of 17 June 2005 No. 90 (tvisteloven), a decision by the Immigration Appeals Board could form the subject of an appeal to the competent city court or district court (tingrett) (Articles 1-3, 1-5, 4-1), from there to the High Court (lagmannsrett) (Articles 4-1 and 29-1) and ultimately to the Supreme Court (Article 30-1). The domestic courts had full jurisdiction to review the lawfulness of the Board’s decision and were empowered to quash the decision should they find that it was unlawful. Pursuant to section 4 of the Immigration Act 1988, the provisions of the Act were to be applied in accordance with Norway’s international legal obligations intended to strengthen the legal position of a foreign national. In the event of conflict between the national legal provision and Norway’s obligations under the Convention, the latter was to take precedence (sections 2 and 3 of the Human Rights Act of 21 May 1999 No. 30).
28. Under Chapters 32 and 34 of the Code of Civil Procedure, a person whose expulsion had been ordered by the immigration authorities could apply to the courts for an interlocutory injunction to stay the implementation of the expulsion order.
29. Further conditions regarding judicial review of the Immigration Appeals Board’s decision were set out inter alia in the following provisions and guidelines.
1. Duty to pay court fees
30. At the material time, the fee for filing a lawsuit before a city court or a district court was 4,300 Norwegian Krone (NOK), corresponding to approximately 560 euros (EUR), if the hearing lasted for one day and NOK 6,880 (EUR 900) if the hearing lasted for two days.
31. Pursuant to section 3 of the Court Fees Act of 17 December 1982 No. 86 (rettsgebyrloven), fees should be paid in advance. In the event that a sufficient amount had not been paid when a request for a judicial order had been made, the court was to fix a brief time-limit for payment. Should that payment not be effected within the time-limit fixed, the court shall dismiss the case, unless the provisions in section 5 apply. The latter provided:
“If a party has applied for free legal aid or for exemption from the payment of court fees under the Free Legal Aid Act of 13 June 1980 No. 35 [rettshjelploven], a respite should be granted until the application has been decided. In this event no security can be required for the payment of the fee.
If a party who has requested a procedural step [rettergangsskritt] has obtained respite in accordance with the foregoing, the court shall grant the measure. In other cases the court may grant a measure if the party who has requested it is unable to pay immediately and it would entail a damage or significant inconvenience for that party if the measure is not taken. If the measure requires payments, an advance payment may be made by the public authorities.
If a measure has been taken with a respite, the court shall fix a time-limit for payment. Until payment has been made or the time-limit has expired, the court shall only take such measures as it deems necessary. If payment is not made within the time-limit, the court gives a ruling in absentia according to Articles 16-9 and 16-10 of the Code of Civil Procedure.”
32. An exception from the condition to pay court fees could be granted as part of a grant to free legal representation according to the same rules as those that applied to the latter (section 25 of the Free Legal Aid Act). A person who was not entitled to free legal representation could be granted an exemption from the duty to pay court fees provided that the financial conditions in section 16 (2) or (4) had been fulfilled (see below).
2. Assistance by legal counsel
33. According to the Code of Civil Procedure a party could be represented by counsel (Article 3-1), but was not obliged to be so represented, save if the party was unable to present the case in a comprehensible manner and the court has ordered the party to appear with counsel (Article 3-2).
34. Section 16 (1) to (5) of the Free Legal Aid Act 1980 included the following provisions of relevance to the present case:
“(1) Free legal representation shall be granted without means testing in ... the following instances:
...
4. to a foreign national in such instances as mentioned in section 92 (3), second sentence, and (4) of the Immigration Act [2008] ....
...
(2) In such cases as mentioned in section 11(2) nos. 1-5 [not applicable in the instant case], an application for free legal representation may be granted to a person whose income and assets do not exceed certain levels set by the Ministry.
(3) In other cases, free legal representation may be granted exceptionally, provided that the financial conditions pursuant to the second sub-section are fulfilled and that the case affects the claimant especially from an objective point of view. In the assessment, weight should be attached to whether the case has similarities with the litigation areas mentioned in the first and second sub-sections.
(4) In such cases as mentioned in the second and third sub-sections, free legal representation may be granted even if the claimant does not fulfil the financial conditions prescribed in the second sub-section, provided that the expenses for legal assistance will be substantial compared to the claimant’s financial situation.
(5) Free legal representation shall not be granted pursuant to the second through fourth sub-sections where it would be unreasonable that such assistance be paid out of public funds.”
35. In Circular G-12/05 the Ministry of Justice and Home Affairs stated at paragraph 6.5.2:
“In immigration cases not covered by section 16 (1) nr 4, the practice should be very restrictive. The general legal security of the foreigner is considered to be sufficiently secured through the administrative processing of the case. Legal aid to take the case before court should only be granted in exceptional cases, i.e. if there are very specific reasons, for instance if the case presents questions of a particular principal interest that has not previously been tried by the courts.”
3. Assistance by interpreter
36. Section 135 (1) of the Administration of Courts Act 1915 (domstolloven) provided:
“In the event that a person, who does not know Norwegian, is to take part in the proceedings, an interpreter appointed and approved by the court shall be used. Recordings are to be made in Norwegian. If required by the importance of the case, the court may decide that recording shall take place in a foreign language, either in the court records or in separate annexes, to be submitted for approval.”
4. Responsibilities of the competent court in the conduct of the proceedings
37. The Government referred in particular to the following provisions of the Code of Civil Procedure:
Section 9-4 Conduct of the proceedings. Plan for further proceedings
“(1) The court shall actively and systematically conduct the preparation of the case to ensure that it is heard in a swift, cost effective and sound manner.”
Section 11-2 The court’s position with regard to
the procedural steps taken by the parties
“(1) ....
(2) The parties have the primary responsibility for presenting evidence. The court can take care of the presentation of evidence if the parties do not object. The court is not bound by the parties’ arguments with regard to questions of evidence.”
Section 11-3 The court’s responsibility to apply the law
“The court shall on its own motion apply current law within the scope of section 11‑2(1). In accordance with section 1-1, the court shall ensure that there is a satisfactory basis upon which to apply the law. If the application of law cannot otherwise be clarified in a fully satisfactory manner, the court may decide that evidence of the law shall be presented, or it may allow the parties to present such evidence. The court shall determine the scope of the presentation of evidence and the manner in which it shall be carried out. Statements on the law occasioned by the case may only be submitted as evidence with the consent of all parties.”
Section 11-5 The court’s duty to give guidance
“(1) The court shall give the parties such guidance on procedural rules and routines and other formalities as is necessary to enable them to safeguard their interests in the case. The court shall seek to prevent errors and shall give such guidance as is necessary to enable errors to be rectified. ...
(2) The court shall, in accordance with subsections (3) to (7), give guidance that contributes to a correct ruling in the case based on the facts and the applicable rules.
(3) The court shall endeavour to clarify disputed issues and ensure that the parties’ statements of claim and their positions regarding factual and legal issues be clarified.
(4) The court may encourage a party to take a position on factual and legal issues that appear to be important to the case.
(5) The court may encourage a party to offer evidence.
(6) The court shall during the proceedings show particular consideration for the need for guidance of parties not represented by counsel.
(7) The court shall provide its guidance in a manner that is not liable to impair confidence in its impartiality. The court shall not advise the parties on the position they should take on disputed issues in the case or on procedural steps they should take.”
Section 11-6 Duty of the court to take an active part
in the conduct of the proceedings
“(1) The court shall prepare a plan for dealing with the case and follow it up in order to bring the case to a conclusion in an efficient and sound manner.
(2) ....
(3) In each case, a preparatory judge shall be responsible for the conduct of the proceedings.
...”
COMPLAINTS
38. The applicant initially complained that his life would be at danger and that he would risk torture upon return if he were to be expelled to Iran, contrary to Articles 2 and 3 of the Convention. He further complained that since his wife, who was a Norwegian national, and his brother lived in Norway, his expulsion to Iran would give rise to a violation of his right to respect for private and family life under Article 8. Later in the proceedings, he in addition pointed to certain health problems related to high blood pressure.
THE LAW
39. The Court will first examine whether the applicant has fulfilled the requirement in Article 35 § 1 of the Convention to exhaust domestic remedies.
A. Submissions of the parties
40. The Government maintained that the applicant had not satisfied the requirement in Article 35 § 1 of the Convention that “all domestic remedies have been exhausted according to the generally recognised rules of international law”. They therefore requested the Court to declare the application inadmissible under Article 35 §§ l and 4.
41. On the question of exhaustion of domestic remedies, the applicant maintained that he expected the immigration authorities to bring his case on his behalf before the Norwegian courts. In the course of his submissions to the Court he also stated that he could not afford a lawyer.
42. In reply the Government pointed out that the applicant’s view that it was for the immigration authorities to institute proceedings in his case before the court was due to a misunderstanding: it would be for him as a plaintiff to bring proceedings before the courts. Presuming that the applicant would take steps to pursue national judicial remedies without further delay the Government invited the Court to declare his application inadmissible.
B. Assessment by the Court
43. In determining whether an applicant has exhausted domestic remedies for the purposes of Article 35 § 1 of the Convention, the Court will follow the same approach as in its recent decisions on admissibility in Agalar v. Norway (dec.) no. 55120/09, 8 November 2011); Ali v. Norway (dec.) no. 22669/10, 14 February 2012) and X v. Norway ((dec.) no. 53351/09, 17 April 2012). As in those cases, it will have regard to the general principles established in its case-law as enunciated notably in its NA. v. the United Kingdom (no. 25904/07, 17 July 2008; see also Hussein v. Sweden (dec.) no. 18452/11, 20 September 2011).
44. The Court reiterates that the rule of exhaustion of domestic remedies in Article 35 § 1 of the Convention requires applicants first to use the remedies provided by the national legal system, thus dispensing States from answering before the European Court for their acts before they have had an opportunity to put matters right through their own legal system. For a remedy to be effective it has to be available in theory and in practice at the relevant time, meaning that it has to be accessible, capable of providing redress in respect of the applicant’s complaints and offer reasonable prospects of success. Article 35 must also be applied to reflect the practical realities of the applicant’s position in order to ensure the effective protection of the rights and freedoms guaranteed by the Convention (see NA, cited above, § 88, with further references).
45. The Court has consistently held that mere doubts as to the prospects of success of national remedies do not absolve an applicant from the obligation to exhaust those remedies. However, it has also on occasion found that where an applicant is advised by counsel that an appeal offers no prospects of success, that appeal does not constitute an effective remedy. Equally, an applicant cannot be regarded as having failed to exhaust domestic remedies if he or she can show, by providing relevant domestic case-law or any other suitable evidence, that an available remedy which he or she has not used was bound to fail (ibid., § 89).
46. In cases where an applicant seeks to prevent his or her removal from a Contracting State, a remedy will only be effective if it has suspensive effect. Conversely, where a remedy does have suspensive effect, the applicant will normally be required to exhaust that remedy. Judicial review, where it is available and where the lodging of an application for judicial review will operate as a bar to removal, must be regarded as an effective remedy which in principle applicants will be required to exhaust before lodging an application with the Court or indeed requesting interim measures under Rule 39 of the Rules of Court to delay a removal (ibid., § 90).
47. As also observed in Agalar (cited above), the Court notes that under the relevant provisions of the Code of Civil Procedure, an appeal against the Immigration Appeals Board’s rejection of the applicant’s asylum request lay with the City Court, from there to the High Court and ultimately to the Supreme Court. The national courts had full jurisdiction to examine the lawfulness of the Board’s decision, including its compatibility with the Convention. The competent court was empowered to quash the Board’s decision if it found the latter to be contrary to the Convention or otherwise unlawful. Reference is made in this respect to the Human Rights Act, which incorporates the Convention into Norwegian law (section 2) and provides that, in the event of conflict between a national legal provision and a provision of the Convention, the latter is to take precedence (section 3).
48. Furthermore, under the provisions of Chapters 32 and 34 of the Code of Civil Procedure, it was open to the applicant under certain conditions to apply to the courts for an interlocutory injunction ordering the immigration authorities to stay the execution of his expulsion. If granted, such a measure would have an immediate and suspensive effect on his expulsion.
49. In the event that the applicant felt unable to access the courts due to his indigence and by the fact that legal aid was granted only in exceptional cases, the Court reiterates its following findings in Agalar (cited above):
“[I]t may be noted that Article 6, of which the right of access to a court is one aspect, is not applicable to expulsion cases (see Maaouia v. France [GC], no. 39652/98, §§ 37-41, ECHR 2000‑X). Moreover, the right to an effective remedy in Article 13 “does not guarantee a right to legal counsel paid by the State when availing oneself of such a remedy” unless the grant of such aid is warranted by “special reasons” in order to enable effective use of the available remedy (see Goldstein v. Sweden (dec.) no. 46636/99). There is no Convention obligation as such on a Contracting State to operate a civil legal aid system for the benefit of indigent litigants (see Cyprus v. Turkey [GC], no. 25781/94, § 352, ECHR 2001‑IV). According to the Court’s case-law, a lack of financial means does not absolve an applicant from making some attempt to take legal proceedings (see D. v. Ireland (dec.) no. 26499/02, 27 June 2006, with reference to Cyprus v. Turkey, ibidem; see also as an example X v. the Federal Republic of Germany (dec.) no. 181/56, Yearbook 1, pp. 140-141).
In the light of the above, the Court finds that the availability of a judicial appeal against the immigration authorities’ decision to expel the applicant and of the possibility to seek a judicial injunction to stay the implementation of the expulsion was sufficient, for the purposes of Article 35 of the Convention, to afford redress in respect of the potential breach alleged (see NA, quoted above, § 88). Since the applicant did not avail himself of the judicial remedy, in accordance with the Court’s case-law, his complaints under Articles 2 and 3 of the Convention should in principle be declared inadmissible for failure to exhaust domestic remedies (see NA, paragraph 90, quoted above, and Akdivar and Others v. Turkey, 16 September 1996, § 66, Reports of Judgments and Decisions 1996‑IV).”
50. In the Court’s view, the above considerations apply with equal force to the present application. The fact that Mr Abdollahpour did not seek judicial review means that his complaints under the Convention should in principle be declared inadmissible on the ground of failure to exhaust domestic remedies.
51. As to the further question whether there are any special circumstances which absolve the applicant from his normal obligation to exhaust domestic remedies, the Court notes in particular that, like Mr Ali – but unlike Mr Agalar and Mr X – Mr Abdollahpour did not apply for free legal aid to the competent national legal aid authorities, the County Governor and (on appeal) the Civil Affairs Authority. It does not appear that the applicant in the present case took any steps with a view to obtaining national judicial review of the impugned decisions. Although the Ministry of Justice and Home Affairs’ Circular G-12/05 laid down that in cases such as here “the practice should be very restrictive”, the Court is not convinced that it would have been entirely futile for him to apply for legal aid (see Ali, cited above, § 71). Whilst the Court had specifically invited the parties to address the question of exhaustion of domestic remedies in the proceedings before it, it does not appear that the applicant even enquired about this matter. Finding no grounds for distinguishing between the present case and that of Ali (cited above), it discerns no special circumstances that could arguably dispense the applicant from his normal obligation to exhaust domestic remedies.
52. It follows that the application must be rejected under Article 35 §§ 1 and 4 of the Convention for failure to exhaust domestic remedies in respect of the applicant’s Convention grievances.
53. In view of the above, it is appropriate to discontinue the application of Rule 39 of the Rules of Court.
For these reasons, the Court unanimously
Declares the application inadmissible.
Søren NielsenNina Vajić
RegistrarPresident
Full & Egal Universal Law Academy