THIRD SECTION
DECISION
Application no. 20218/04
by Said HASSAN ABUKAR
against the Netherlands
The European Court of Human Rights (Third Section), sitting on 22 April 2008 as a Chamber composed of:
Josep Casadevall, President,
Elisabet Fura-Sandström,
Corneliu Bîrsan,
Alvina Gyulumyan,
Egbert Myjer,
Ineta Ziemele,
Ann Power, judges,
and Santiago Quesada, Section Registrar,
Having regard to the above application lodged on 9 June 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 Said Hassan Abukar, is a Somali national who was born in 1966 and lives in Rotterdam. He was represented before the Court by Mr P.H. Hillen, a lawyer practising in Tilburg. The Dutch Government (“the Government”) were represented by their Agents, Ms J. Schukking and 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.
The applicant applied for asylum in the Netherlands on 7 March 1994. This application was rejected on 2 September 1994 by the Deputy Minister of Justice (Staatssecretaris van Justitie) who considered inter alia that the asylum application was based on the general situation in Somalia which was insufficient for a well-founded claim to refugee status.
The applicant lodged an objection (bezwaarschrift) against this decision, which was dismissed by the Deputy Minister on 22 April 1996. The applicant’s subsequent appeal (beroep) to the Regional Court (arrondissementsrechtbank) of The Hague, sitting in Haarlem, was rejected on 19 December 1997. No further appeal lay against this decision. However, the applicant did not leave the Netherlands and neither was he forcibly expelled.
On 25 May 2004 the applicant was placed in detention with a view to his expulsion. The following day he lodged an objection pursuant to Article 72 § 3 of the Aliens Act 2000 (Vreemdelingenwet 2000) against his expulsion, scheduled for 16 June 2004, to the “relatively safe” areas of Somalia, via Dubai. In order to be allowed to await the outcome of his objection, the applicant applied for an injunction to the Regional Court of The Hague, sitting in ‘s-Hertogenbosch.
On 9 June 2004 the applicant lodged the present application with the Court and, fearing that no decision would be taken on his request for an injunction in time to prevent his deportation from going ahead as scheduled, he also applied for an interim measure pursuant to Rule 39 of the Rules of Court. On 10 June 2004 the applicant’s request for an injunction was rejected by the provisional-measures judge (voorzieningenrechter) in ‘s‑Hertogenbosch.
On 15 June 2004 the President of the Chamber indicated to the Government, under Rule 39 of the Rules of Court, 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 until 29 June 2004. The Government complied and also released the applicant from detention.
On 29 June 2004 the Court decided not to prolong the Rule 39 indication. However, following the submission by the applicant of reports compiled by Amnesty International and Médecins sans Frontières concerning the security situation in Somalia, and having sought the Government’s comments on those reports, the Court decided to apply Rule 39 once again on 31 August 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 for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie; the successor to the Deputy Minister of Justice) on 24 June 2005 in respect of asylum seekers coming from certain parts of Somalia. In letters of 29 September and 11 October 2005 the applicant’s representative informed the Court that the applicant had been issued a residence permit pursuant to this policy, valid from 20 September 2005 until 20 September 2010, and that, in light of this fact, he wished to withdraw his application to the Court.
COMPLAINT
The applicant complained under Article 3 of the Convention that his expulsion to the “relatively safe areas” in northern Somalia would expose him to a real risk of torture or inhuman or degrading treatment.
THE LAW
The applicant originally complained that a forced return to Somalia would violate his rights under Article 3 of the Convention. However, the Court notes that the applicant has been granted a residence permit, that he is thus – and at least until September 2010 – no longer at risk of being expelled and that, for this reason, he does not intend to pursue his application. In these circumstances, and having regard to Article 37 § 1 (a) and (b) of the Convention, 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