THIRD SECTION
DECISION
Application no. 2683/04
by Mohamed ALI YOUSEF
against the Netherlands
The European Court of Human Rights (Third Section), sitting on 13 May 2008 a Chamber composed of:
Josep Casadevall, President,
Elisabet Fura-Sandström,
Corneliu Bîrsan,
Egbert Myjer,
Ineta Ziemele,
Luis López Guerra,
Ann Power, judges,
and Santiago Quesada, Section Registrar,
Having regard to the above application lodged on 21 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, Mr Mohamed Ali Yousef, is a Somali national who was born in 1972 and lives in Gilze. He was represented before the Court by Mr M.J.A. Leijen, a lawyer practising in Alkmaar. 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 14 December 2003 the applicant applied for asylum in the Netherlands. He was placed in aliens’ detention. The applicant submitted that he hailed from Mogadishu and belonged to the minority Midgan population group. Because of this latter fact he and his family were subject to harassment and discrimination by people belonging to more powerful clans. The applicant’s family home had been confiscated, his wife ill-treated, his father kidnapped and the applicant himself had been beaten up and robbed more than once.
By a decision of 18 December 2003, the Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie) refused the asylum application. According to the Minister, the return of the applicant to Somalia, given the general situation there, did not amount to undue harshness because, in order to avoid any future problems, he could settle in one of Somalia’s “relatively safe” areas.
The applicant appealed against this decision and also lodged a request for a provisional measure (voorlopige voorziening) in order to be allowed to await the outcome of his appeal in the Netherlands. By a decision of 7 January 2004, the provisional-measures judge of the Regional Court (rechtbank) of The Hague, sitting in Haarlem, declared the appeal unfounded and dismissed the request for a provisional measure.
On 15 January 2004 the applicant appealed against this decision to the Administrative Jurisdiction Division of the Council of State (Afdeling Bestuursrechtspraak van de Raad van State; “the Division”). He also asked the President of the Division, on 20 January 2004, to issue a provisional measure in connection with his planned removal from the Netherlands to Abu Dhabi (UAE) the next day. On 21 January 2004 the President of the Division refused this request.
Also on 21 January 2004 the applicant requested the Court under Rule 39 of the Rules of Court to indicate to the Government not to expel him pending the proceedings before the Court. That same day, 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 and released him from detention on 23 January 2004.
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 25 October 2005 and 25 March 2008 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 4 October 2005 until 4 October 2010, and that, in light of this fact, he wished to withdraw his application to the Court.
COMPLAINTS
The applicant complained under Articles 2 and 3 of the Convention that his expulsion to Somalia would expose him to a real risk of death, torture or inhuman or degrading treatment, against which treatment he would be unable to obtain protection since there was no functioning government in Somalia. He also complained, under Article 13 taken together with Articles 2 and 3 of the Convention, that neither the administration nor the judiciary had subjected his claim to the rigorous scrutiny required, and, under Article 13 taken together with Article 5 of the Convention, that the necessity – and thus the lawfulness – of his detention had not been examined speedily. Finally, the applicant raised complaints under Article 5 §§ 1 (f) and 4 of the Convention in relation to his detention.
THE LAW
The applicant originally complained that a forced return to Somalia would be in breach of Articles 2 and 3 of the Convention and also alleged violations of Article 5 §§ 1 (f) and 4 and Article 13 of the Convention. However, the Court notes that the applicant has now been granted a residence permit in the Netherlands and that he is thus – and at least until October 2010 – no longer at risk of being expelled. Moreover, it appears that he does not intend to pursue his 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.
Santiago QuesadaJosep Casadevall
RegistrarPresident
Full & Egal Universal Law Academy