THIRD SECTION
DECISION
Application no. 15204/04
by Abdulkadir ALI MOHAMMED
against the Netherlands
The European Court of Human Rights (Third Section), sitting on 31 January 2008 as a Chamber composed of:
Boštjan M. Zupančič, President,
Corneliu Bîrsan,
Elisabet Fura-Sandström,
Alvina Gyulumyan,
Egbert Myjer,
David Thór Björgvinsson,
Ineta Ziemele, judges,
and Santiago Quesada, Section Registrar,
Having regard to the above application lodged on 29 April 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 deliberated, decides as follows:
THE FACTS
The applicant, Mr Abdulkadir Ali Mohammed, is a Somali national who was born in 1973 and who was staying in the Netherlands at the time the application was introduced. He was represented before the Court by Mr H.P. Ruysink, a lawyer practising in Maastricht. 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 applicant, may be summarised as follows.
On 29 October 2000 the applicant applied for asylum in the Netherlands, submitting that, because he belonged to the minority Reer Hamar population group, his life in Mogadishu was made unbearable. The applicant and his family had always been subject to discrimination, but when the war started matters got much worse.
The Deputy Minister of Justice (Staatssecretaris van Justitie) refused the asylum application on 11 December 2000 and subsequently also dismissed the applicant’s objection (bezwaar) against that decision. The applicant’s appeal to the Regional Court (rechtbank) of The Hague was rejected on 12 March 2003.
On 26 April 2004 the applicant was placed in detention with a view to his deportation to the Puntland region of Somalia (one of the regions considered “relatively safe” by the Dutch immigration authorities), via Nairobi (Kenya) and Mogadishu, scheduled to take place on 30 April 2004. Following the decision of the President of the Chamber of 29 April 2004 to indicate an interim measure to the respondent Government pursuant to Rule 39 of the Rules of Court, the Netherlands authorities suspended the applicant’s expulsion and released him from detention.
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 for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie; the successor of the Deputy Minister of Justice) on 24 June 2005 in respect of asylum seekers coming from certain parts of Somalia. In a letter of 12 August 2005 the applicant’s representative informed the Court that the applicant would be applying for a residence permit pursuant to this policy and that, if he were issued one, he would wish to withdraw his application to the Court.
In reply to a letter from the Court’s Registry, the applicant’s representative wrote on 13 October 2007 that he was not aware whether or not a residence permit had in the meantime been issued to his client as he was no longer in contact with him.
The Government informed the Court on 18 October 2007 that, by a decision of 6 February 2006, the applicant had been granted a residence permit valid until 26 September 2010.
COMPLAINT
The applicant originally complained under Article 3 of the Convention that his expulsion to the “relatively safe” areas in northern Somalia, via Mogadishu, would expose him to a real risk of torture or inhuman or degrading treatment, against which treatment he 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 violate his rights under Article 3 of the Convention. However, the Court is of the opinion that the applicant’s failure to inform his representative, Mr Ruysink, of his current whereabouts must be taken as indicating that he has lost interest in pursuing his application within the meaning of Article 37 § 1 (a) of the Convention. Although it is true that the applicant did authorise Mr Ruysink to represent him in the proceedings before the Court, it considers that this authority does not by itself justify pursuing the examination of the case. Given the impossibility of establishing any communication with the applicant, the Court considers that Mr Ruysink cannot now meaningfully pursue the proceedings before it (see, mutatis mutandis, Sevgi Erdoğan v. Turkey (striking out), no. 28492/95, 29 April 2003, and Ali v. Switzerland, judgment of 5 August 1998, Reports of Judgments and Decisions 1998-V, p. 2149, § 32).
In any event, the Court notes that it has previously been submitted on behalf of the applicant that he would not wish to pursue his application if he were granted a residence permit. Noting that that event has now materialised and that the applicant is thus – and at least until September 2010 – no longer at risk of being expelled, the matter appears to have been resolved.
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.
Santiago QuesadaBoštjan M. Zupančič
RegistrarPresident
Full & Egal Universal Law Academy