THIRD SECTION
DECISION
Application no. 15243/04
by Mohamed Youssouf BARAKAT SALEH
against the Netherlands
The European Court of Human Rights (Third Section), sitting on 3 June 2008 as a Chamber composed of:
Josep Casadevall, President,
Corneliu Bîrsan,
Boštjan M. Zupančič,
Egbert Myjer,
Ineta Ziemele,
Luis López Guerra,
Ann Power, 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 Mohamed Youssouf Barakat Saleh, is a Somali national who was born in 1978 and was living in Helmond at the time the application was introduced. He was represented before the Court by Mr J.A. Tegenbosch, a lawyer practising in Winterle. 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 28 April 1997 the applicant applied for asylum in the Netherlands, submitting that, because he belonged to the minority Sheikhal clan, his life was made unbearable in his native Mogadishu without a central government or government-like authority willing to offer him protection. On several occasions he had been the victim of robberies, ill-treatment and extortion.
The Deputy Minister of Justice (Staatssecretaris van Justitie) refused the asylum application on 2 July 1997, against which decision the applicant filed an objection (bezwaar). The Deputy Minister dismissed the objection but, on 29 April 1999, decided to defer the applicant’s expulsion pending a decision by the Legal Uniformity Division of the Regional Court (arrondissementsrechtbank) of The Hague in proceedings concerning the expulsion of another Somali national belonging to the Sheikhal clan. The applicant did not appeal against the rejection of his objection.
By a decision of 14 November 2001, the Deputy Minister lifted the deferral of the expulsion. The applicant filed an objection and also requested a provisional measure (voorlopige voorziening) in order to be allowed to await the outcome of the objection proceedings in the Netherlands. On 27 June 2001 the President of the Regional Court of The Hague, sitting in ‘s-Hertogenbosch, issued the provisional measure requested because the Deputy Minister had failed to provide the court with the case file.
Meanwhile, on 1 December 2000, the applicant had lodged a new request for asylum, arguing that a change in case-law meant that his asylum application should be assessed differently. The Deputy Minister dismissed the new request on 2 December 2000, against which decision the applicant lodged an objection. He also applied for a provisional measure, which request was granted by the President of the Regional Court of The Hague.
The applicant’s objection against the lifting of the deferral of his expulsion as well as his objection against the rejection of his second asylum request was dismissed by the Deputy Minister on 2 July 2002. It was held that the applicant could evade situations of violence by settling in one of the relatively safe areas of Somalia, i.e. Somaliland, Puntland, Hiraan or Galgadud. The applicant’s appeal against this decision was rejected by the Regional Court of The Hague on 25 February 2003. No further appeal was possible.
On 26 April 2004 the applicant was placed in detention with a view to his deportation to the Puntland region of Somalia, via Nairobi (Kenya) and Mogadishu, scheduled to take place on 30 April 2004. On 28 April 2004 the applicant lodged an objection against the decision to expel him as well as against the modalities of his expulsion. The Court has not been informed of the outcome of these proceedings. A request for a provisional measure, which would allow him to await the outcome of the objection proceedings in the Netherlands, was rejected by the provisional-measures judge of the Regional Court of The Hague, sitting in Assen, on 29 April 2004.
Also on 29 April 2004, the applicant introduced the present application to the Court. He 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. On 30 April 2004 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 suspended the applicant’s expulsion. The applicant was also released.
The applicant’s representative informed the Court on 24 March 2008 that the applicant had been granted a residence permit pursuant to the terms of a general amnesty (generaal pardon) for rejected asylum seekers who had applied for asylum before 1 April 2001 and that he therefore wished to withdraw his application.
COMPLAINTS
The applicant complained under Articles 2 and 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 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 further submitted that, as a member of the minority Sheikhal clan, it was most likely that he would be forced to live in one of the camps for internally displaced persons in the designated safe areas where the conditions were so appalling that they had been described as a clear violation of human rights. He complained that this amounted to discrimination in breach of Article 14 of the Convention.
THE LAW
The applicant originally complained that a forced return to Somalia would be in breach of Articles 2, 3 and 14 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 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