THIRD SECTION
DECISION
Application no. 16247/11
A.S.
against the Netherlands
The European Court of Human Rights (Third Section), sitting on 4 June 2013 as a Committee composed of:
Alvina Gyulumyan, President,
Kristina Pardalos,
Johannes Silvis, judges
and Marialena Tsirli, Deputy Section Registrar,
Having regard to the above application lodged on 11 March 2011,
Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court and the fact that this interim measure has been complied with,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
1. The applicant, Mr A.S., is an Iranian national, who was born in 1983 and was living in Oosterhout at the time the present application was introduced. The President of the Section decided that the applicant’s identity should not be disclosed to the public (Rule 47 § 3 of the Rules of Court). The applicant was initially represented before the Court by Mr A.F.J. Lemmens and subsequently by Mr J.M.M. Verstrepen, both lawyers practising in Oosterhout. The Dutch Government (“the Government”) were represented by their Agent, Mr R.A.A. Böcker, and their Deputy Agent, Ms L. Egmond, both of the Ministry of Foreign Affairs.
A. The circumstances of the case
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. On 4 August 2010 the applicant unsuccessfully applied for asylum in the Netherlands. The final decision on this application was taken by the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak van de Raad van State) on 18 October 2010. He lodged a new asylum application on 30 November 2010, which was rejected by final decision of the Administrative Jurisdiction Division of 17 February 2011.
B. Developments subsequent to the lodging of the application
4. On 16 June 2011, at the request of the applicant, the President of the Section 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 to Iran for the duration of the proceedings before the Court (Rule 39 of the Rules of Court). At the same time the Government were invited to submit written observations on the admissibility and merits of the case (Rule 54 § 2 b). The Government submitted their observations on 20 October 2011 and observations in reply were submitted on behalf of the applicant on 22 December 2011.
5. By letter of 21 March 2013 the Government informed the Court that it had come to their attention that the applicant had recently returned to Iran of his own motion with assistance from the International Organisation for Migration (“IOM”). The Government were therefore of the view that the applicant had lost interest in pursuing his application and that it was no longer justified for the Court to continue the examination of the application.
6. On 11 and 19 April 2013 Mr Verstrepen informed the Court that he had not been aware of his client’s return to Iran. Moreover, Mr Verstrepen had been informed by the IOM that that organisation was only able to provide him with information about the applicant’s return if he submitted a letter of authority – something Mr Verstrepen was unable to do. The IOM had, however, undertaken to attempt to get in touch with the applicant in Iran in order to get him to contact Mr Verstrepen. Mr Verstrepen submitted that it was important to find out that the applicant had really returned to Iran of his own motion and that he had not been pressured. As long as this question remained unanswered, he could not agree to the case being struck out of the Court’s list of cases.
COMPLAINTS
7. The applicant complained that his expulsion to Iran would subject him to treatment in breach of Article 3 of the Convention. He further submitted that the refusal of the Netherlands authorities to have regard to documents which he had been unable to submit in support of his first application for asylum but had submitted in support of his second application constituted a violation of Article 13 of the Convention.
THE LAW
8. The Court notes that the applicant has returned to Iran. While the Government submit that the applicant did so of his own volition, the applicant’s representative argues that this may not have been the case.
9. At the present time, the Court has not been provided with any information indicating that the applicant’s return to Iran might have been anything other than voluntary. Moreover, although it is true that the applicant did authorise Mr Verstrepen 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. Since it appears that Mr Verstrepen is currently unable to establish any communication with the applicant, the Court considers that he 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, 5 August 1998, § 32, Reports of Judgments and Decisions 1998‑V).
10. In these circumstances, the Court considers that it is at present no longer justified to continue the examination of the application and that it should be struck out of its list of cases in accordance with Article 37 § 1 (c) of the Convention. Moreover, 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. The Court would additionally observe that in the event information is obtained that the applicant did not return to Iran of his own motion and that he wishes to continue with his application, he may, pursuant to Article 37 § 2, seek to have the application to the Court restored.
11. In view of the above, it is appropriate to lift the interim measure indicated under 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.
Marialena TsirliAlvina Gyulumyan
Deputy RegistrarPresident
Full & Egal Universal Law Academy