THIRD SECTION
DECISION
Application no. 7028/04
by Abshiro Mohamed JIMALE
against the Netherlands
The European Court of Human Rights (Third Section), sitting on 17 January 2008 as a Chamber composed of:
Boštjan M. Zupančič, President,
Corneliu Bîrsan,
Elisabet Fura-Sandström,
Alvina Gyulumyan,
Egbert Myjer,
David Thór Björgvinsson,
Ineta Ziemele, judges,
and Santiago Quesada, Section Registrar,
Having regard to the above application lodged on 25 February 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, Mrs Abshiro Mohamed Jimale, is a Somali national who was born in 1960 and who was staying in the Netherlands at the time the application was introduced. She was represented before the Court by Ms L. Vellenga-van Nieuwkerk, 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 applicant, may be summarised as follows.
On 14 May 1998 the applicant applied for asylum in the Netherlands, submitting that, because she and her family belonged to the minority Ashraf population group, their life in Mogadishu was made unbearable by militia and/or bandits belonging to the clan that was in control of the area. She had been attacked, kicked, beaten, shot and raped.
The Deputy Minister of Justice (Staatssecretaris van Justitie) refused the asylum application on 28 January 1999. However, in accordance with the policy in force at the time, the applicant was granted a conditional residence permit (voorwaardelijke vergunning tot verblijf).
Following a change in this policy, the Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie, the successor of the Deputy Minister of Justice) withdrew the applicant’s residence permit on 4 July 2002. A lawyer for the applicant lodged an appeal with the Regional Court (rechtbank) of The Hague against this decision. However, when this lawyer did not succeed in contacting the applicant, the appeal was withdrawn.
Having panicked at the prospect of being expelled, the applicant had left the Netherlands and had applied for asylum in the United Kingdom. She was denied entry to the latter country, placed in aliens’ detention and subsequently returned to the Netherlands, where she lodged a new application for asylum on 3 September 2003.
The Minister for Immigration and Integration rejected the new request on 6 September 2003. The applicant’s appeal against that decision was dismissed by the provisional-measures judge (voorzieningenrechter) of the Regional Court of The Hague sitting in Haarlem on 22 September 2003. The applicant lodged a further appeal (hoger beroep) with the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State), which was rejected on 2 December 2003.
In reply to a letter from the Court’s Registry, the applicant’s representative informed the Court on 29 November 2007 that she was no longer in contact with the applicant.
COMPLAINTS
The applicant complained that her expulsion would be in breach of Articles 2 and 3 of the Convention and that the manner in which it had been intended to expel her and the fact that she had been denied State-sponsored food would also constitute a violation of Article 3.
She further complained under Article 5 §§ 1 (f) and 4 of the Convention in relation to the period of aliens’ detention she had undergone.
The applicant also complained under Article 13 taken together with Articles 2, 3, and 5 § 1 (f) of the Convention in that, in the accelerated procedure applied to her second request for asylum, neither the administration nor the judiciary subjected her claim to the rigorous scrutiny required, and in that the necessity – and thus the lawfulness – of her detention was not examined speedily.
Finally, the applicant complained that her expulsion to the so-called “relatively safe” area of Puntland in north-eastern Somalia would constitute a breach of Article 14 because she hailed from southern Somalia and belonged to a minority clan.
THE LAW
The applicant raised complaints under Articles 2, 3, 5 §§ 1 (f) and 4, 13 and 14 of the Convention in relation to the proceedings on and rejection of her applications for asylum. However, the Court is of the opinion that the applicant’s failure to inform her representative, Ms Vellenga-van Nieuwkerk, of her current whereabouts must be taken as indicating that she has lost interest in pursuing her application within the meaning of Article 37 § 1 (a) of the Convention. Although it is true that the applicant did authorise Ms Vellenga-van Nieuwkerk to represent her in the proceedings before the Court, it considers that this authority does not by itself justify pursuing the examination of the case. Given the impossibility of establishing any communication with the applicant, the Court considers that Ms Vellenga‑van Nieuwkerk 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, judgment of 5 August 1998, Reports of Judgments and Decisions 1998-V, p. 2149, § 32).
In these circumstances, and having regard to Article 37 § 1 (a) 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 QuesadaBoštjan M. Zupančič
RegistrarPresident
Full & Egal Universal Law Academy