FIRST SECTION
DECISION
Application no. 48932/13
B v. Norway
and 9 other applications
(see list appended)
The European Court of Human Rights (First Section), sitting on 7 October 2014 as a Committee composed of:
Khanlar Hajiyev, President,
Erik Møse,
Dmitry Dedov, judges,
Søren Prebensen, Acting Deputy Section Registrar.
Having regard to the above applications lodged on 2 April 2013,
Having regard to the comments submitted by the Norwegian Government
Having deliberated, decides as follows:
THE FACTS
1. The applicants are Ethiopian nationals who are currently residing in Norway. The President granted their request for their identities not to be disclosed to the public (Rule 47§ 4). They were represented before the Court by the Aire Centre in London (Mr A. Weiss) and by the Norwegian law firm Endresen, Brygfjeld and Torrall.
2. The Norwegian Government (“the Government”) were represented by their Agents, Mr Marius Emberland and Mr Christian Reusch.
A. The circumstances of the case
3. The applicants in the present applications were among a group of 354 Ethiopian nationals who lodged an application to the Court on 2 April 2013. On 4 April 2013 their request under Rule 39 to stop their deportation to Ethiopia was rejected by the Acting President of the Section to which the case had been allocated. The application no. 22343/13, concerning 343 of the above-mentioned applicants, was declared inadmissible on 10 December 2013. The cases concerning the remaining eleven applicants were registered under separate application numbers. Ten of these were communicated to the Government of Norway for observations on 5 August 2013, 27 August 2013 and 27 November 2013, respectively, and are dealt with in the present decision.
4. The majority of these applicants have submitted that they have been supporters of the Oromo Liberation Front (OLF), a political movement that has been banned since 1992 and has also been characterised as a terrorist organisation by the Ethiopian authorities. Their asylum accounts were rejected by the Norwegian immigration authorities, mainly by referring to a report of 5 March 2010 by the Norwegian Country of Origin Information Centre (Landinfo), entitled “Oromo in Ethiopia: political groups and human rights 2005-2010”. It concluded that it was very unlikely that OLF was responsible for any political activity within Ethiopia after 2005 but noted that the Ethiopian authorities could still describe unwanted government critics as belonging to OLF and blame OLF for some unwanted actions. In each of the individual cases of the applicants in question, it appeared that this report was given decisive weight in the domestic immigration authorities’ reasoning.
5. However, on 18 December 2012, Landinfo issued an update of the abovementioned report, “Response Ethiopia: Oromo Liberation Front (OLF)” where it altered its previous assessment and stated that it could not be ruled out that OLF was operating in Ethiopia through secret networks and military operations, but that it was very difficult to assess the scope of its activities.
6. Ms A, the applicant in application no. 61156/13, initiated judicial proceedings before the Oslo City Court. She was afforded pro bono legal assistance as a part of a project initiated by members of the Norwegian Bar Association with the view of obtaining judicial review of selected asylum cases. The City Court, by its judgment of 8 October 2010, found against her and rejected her appeal against the Immigration Appeals Board’s refusal of her asylum request. The applicant lodged an appeal against that decision to the Borgarting High Court, but on 19 December 2011 she withdrew the appeal on the ground that she no longer benefitted from pro bono legal assistance. Consequently, the High Court, by its decision of 5 January 2012, dismissed the case. It does not appear from the case-file that the applicant has requested the Immigration Appeals Board to review its earlier decisions or that she has applied for legal aid in Norway.
7. Respectively by letters of 11 June 2014, 26 June 2014 and 14 August 2014, the Government informed the Court that the applicants in applications nos. 48932/13, 48940/13, 48950/13, 50005/13, 51184/13, 51192/13, 51219/13, 51480/13 and 51652/13 had been granted legal aid in Norway and had all initiated judicial proceedings before the Oslo City Court.
8. Before filing the above-mentioned applications with the Court, the applicants’ legal representative in Norway had lodged a class action before the Oslo City Court on behalf of a large number of Ethiopian nationals, including most of the applicants in application no. 22343/13 X and Others v. Norway (which included the applicants in the present application), requesting it to find that “the Immigration Appeal Board’s decisions on the plaintiffs’ lack of protection needs upon return to Ethiopia would be found invalid” (Utlendingsnemndas vedtak om saksøkernes manglende beskyttelsesbehov ved retur til Etiopia kjennes ugyldig). The action was dismissed by a decision of the City Court on 15 June 2012 on procedural grounds, mainly on account of the representative’s failure to specify the claim and to identify the decisions they sought to have declared unlawful. On appeal the Borgarting High Court, in its decision of 3 October 2012, agreed with the City Court. It further stated that it was clear that the conditions for a joint law suit had not been met in the present case and that the question of whether deportation would be prevented by the Immigration Act or the Convention required an individual assessment for each applicant. The High Court advised the representative to choose a few trial cases and to proceed with those. It stated that if a temporary injunction would be granted for any of the applicants it had to be assumed that the State would treat other applicants who were in the same situation in the same way. An appeal against the High Court’s decision was dismissed by the Appeal Committee of the Supreme Court on 6 December 2012.
B. Relevant domestic law
9. The provisions relevant to the present case were described inter alia in Abdollahpour v. Norway ((dec.) no. 57440/10, §§ 27-37, 29 May 2012).
COMPLAINTS
10. The applicants complained under Article 3 of the Convention that they would be at risk of ill-treatment upon return to Ethiopia. A number of the applicants also invoked Article 8, alleging that their expulsion would entail an interference with their private life as they had formed links with Norway.
11. They also complained that they would be subjected to collective expulsion to Ethiopia in violation of Article 4 of Protocol No. 4. In addition, they submitted that, since no remedy with automatic suspensive effect against the proposed collective expulsion was available to them under domestic law, there had also been a breach of Article 13, in conjunction with the above‑mentioned provisions.
THE LAW
12. In accordance with Rule 42 § 1 of the Rules of Court, the Court decides to join the applications.
A. Complaint under Article 3
13. The Court will first examine whether the applicants have fulfilled the requirement set out in Article 35 of the Convention.
14. In their written observations, the Government argued that the present applications should be declared inadmissible for failure to exhaust domestic remedies. They initially noted that the applicants had not applied for legal aid nor taken any steps to initiate judicial proceedings concerning their grievances. They referred to Agalar v. Norway (dec.) no. 55120/09, 8 November 2011, Ali v. Norway (dec.) no. 22669/10, 14 February 2012; and Abdollahpour (cited above), and maintained that there were no special circumstances which could dispense them from their normal obligation to exhaust domestic remedies. Subsequently, the Government informed the Court that nine of the applicants had been granted legal aid in Norway and had brought proceedings before the City Court (see paragraph 7 above). As to the remaining applicant (application no. 61156/13), the Government observed that she had decided to withdraw her appeal against the Oslo City Court judgment and had thus opted not to exhaust domestic remedies.
15. The applicants’ representatives maintained that by lodging a class action before the domestic courts the applicants had exhausted domestic remedies in Norway in respect of their grievances. Moreover, they stated that there was no effective remedy in Norway which had an automatic suspensive effect. They also submitted that the practice for granting legal aid in asylum cases was very restrictive and that the applicants could not, because of their very low income, initiate individual judicial proceedings without such aid.
16. The Court reiterates that in its above-cited decisions in Ali and Abdollahpour, it relied on the following findings in Agalar (also 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).”
17. These considerations apply equally to the present applications.
18. In the first place, it should be observed the class action lodged by one of applicants’ representatives was dismissed from the courts on the ground of their failure to comply with domestic rules of procedure (see paragraph 8 above). This procedural step could not in the Court’s view be deemed to meet the requirement of exhaustion of domestic remedies set out in Article 35 § 1 of the Convention (see, for instance, Akdivar and Others, cited above, § 66; Thiermann and Others v. Norway (dec.), no. 18712/03, 8 March 2007; and Vučković and Others v. Serbia [GC], no. 17153/11, § 72, 25 March 2014).
19. It is further to be noted that Ms A (the applicant in application no. 61156/13), when pursuing individual proceedings, first unsuccessfully before the City Court and then on appeal to the High Court, withdrew her appeal to the latter. Her Article 3 complaint should therefore in principle be declared inadmissible on the ground of failure to exhaust domestic remedies. Moreover, like the applicants in Ali and Abdollahpour (both cited above) – whose applications were declared inadmissible on such ground, Ms A did not apply for legal aid with a view to exhaust domestic remedies. There appears to be no special circumstances which could absolve her from her normal obligation to do so.
20. As to the remaining applications (nos. 48932/13, 48940/13, 48950/13, 50005/13, 51184/13, 51192/13, 51219/13, 51480/13, 51652/13), the Court finds that, in the light of the above considerations and the fact that these applicants all have been granted legal aid and have initiated judicial proceedings which are now pending, they should be declared inadmissible as being premature.
21. It follows that, in so far as the applicants complained under Article 3 of the Convention, their applications must be rejected under Article 35 §§ 1 and 4 of the Convention for failure to exhaust domestic remedies.
B. Remaining complaints
22. As to the remaining complaints, which were not communicated, the Court finds no reason to distinguish them from the similar complaints raised in application no. 22343/13, declared inadmissible on 10 December 2013 (see paragraph 3 above) on the ground that the admissibility criteria set out in Articles 34 and 35 of the Convention had not been met. Accordingly, also the remainder of the present applications must be declared inadmissible under these provisions.
For these reasons, the Court, unanimously,
Decides to join the applications;
Declares the applications inadmissible.
Søren PrebensenKhanlar Hajiyev
Acting Deputy RegistrarPresident
No
Application No
48932/13
48940/13
48950/13
50005/13
51184/13
51192/13
51219/13
51480/13
51652/13
61156/13
Full & Egal Universal Law Academy