THIRD SECTION
DECISION
Application no. 18375/10
Shatha MUHAMMED JEMEAL
against the Netherlands
The European Court of Human Rights (Third Section), sitting on 4 December 2012 as a Chamber composed of:
Josep Casadevall, President,
Alvina Gyulumyan,
Corneliu Bîrsan,
Ján Šikuta,
Luis López Guerra,
Nona Tsotsoria,
Johannes Silvis, judges,
and Santiago Quesada, Section Registrar,
Having regard to the above application lodged on 1 April 2010,
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 regard to the information submitted by the respondent Government,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Ms Shatha Muhammed Jemeal, is an Iraqi national, who hails from Baghdad. She was born in 1963 and, at the time of the introduction of the application, living in Almere. She was represented before the Court by Ms J. de Jong, a lawyer practising in Utrecht.
2. 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
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 4 August 2008 the applicant applied for asylum in the Netherlands. This request was rejected by the Deputy Minister of Justice (staatssecretaris van Justitie) on 9 April 2009. Although, in its judgment of 13 October 2009, the Regional Court (rechtbank) of The Hague sitting in Roermond accepted the applicant’s appeal against the Deputy Minister’s decision, it did so for technical reasons only. Finding that the Deputy Minister could reasonably have held the identified inconsistencies in her account against the applicant, the Regional Court held that the legal consequences of the impugned decision were to remain intact. The applicant’s subsequent further appeal to the Administrative Jurisdiction Division of the Council of State (Afdeling Bestuursrechtspraak van de Raad van State) was rejected on 1 December 2009. No further appeal lay against this ruling.
B. Developments after the introduction of the application
5. On 8 April 2010, the President of the Section decided, under Rule 39 of the Rules of Court, to indicate to the respondent Government that it was desirable in the interest of the parties and the proper conduct of the proceedings before the Court not to expel the applicant to Iraq. This indication was initially limited in time. On 6 July 2010, the Chamber decided to prolong the Rule 39 indication for the duration of the proceedings before the Court and to invite the Government to submit written observations on the admissibility and merits of the case (Rule 54 § 2 (b)).
6. The Government submitted observations on 1 November 2010 to which the applicant’s representative replied on 14 January 2011. On 2 February 2011 she filed further factual submissions. On 11 March 2011, the Government filed further observations.
7. On 2 October 2012, in reply to questions put to them in accordance with Rule 54 § 2 (a) of the Rules of Court on 11 September 2012, the Government submitted that – with the exception of a particular category of persons hailing from Northern Iraq – due to a number of practical considerations it was currently impossible to expel to Iraq failed asylum seekers who have no valid travel documents and who do not wish to return voluntarily. The Government further submitted that they could not say whether their consultations with the Government of Iraq would produce a result before the end of 2012 so that forcible returns to Iraq could be resumed. In reply to the invitation to submit comments, the applicant’s representative informed the Court on 25 October 2012 that she had not been able to contact the applicant.
8. On 5 November 2012 the Government informed the Court that the applicant, with the help of the International Organisation for Migration, had voluntarily left for Iraq on 26 January 2011. In her comments of 15 November 2012, the applicant’s representative stated that she had not been informed by her client of the latter’s return to Iraq.
COMPLAINT
9. The applicant complained under Article 3 of the Convention that her expulsion to Iraq would expose her to a real risk of being subjected to treatment in breach of that provision.
THE LAW
10. The applicant alleged a violation of her rights under Article 3 of the Convention. This provision reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
11. The Court recalls that pursuant to Rule 47 § 6 of the Rules of Court applicants shall keep the Court informed of all circumstances relevant to the application. It further recalls that an application may be rejected as abusive under Article 35 § 3 of the Convention, among other reasons, if it was knowingly based on untrue facts. Incomplete and therefore misleading information may also amount to abuse of the right of application, especially if the information concerns the very core of the case and no sufficient explanation is given for the failure to disclose that information (see Červeňáková v. the Czech Republic (dec.), no. 26852/09, 23 October 2012 with further references).
12. The Court notes that the applicant, who was represented by legal counsel both in the domestic proceedings and in the proceedings before the Court, has not informed the Court about her voluntary return to Iraq on 26 January 2011 (see paragraph 8 above). However, although possibly justified in the particular circumstances of the present case, the Court considers that for reasons of expediency only (in particular its overload, see Ibrahim Ali v. the Netherlands and Italy (dec.), no. 2303/10, 3 July 2012), it will not proceed to an examination of the question whether the application should be rejected for constituting an abuse of the right of petition within the meaning of Article 35 § 3 of the Convention.
13. The Court considers that the fact that the applicant has voluntarily returned to Iraq must lead to the conclusion that she does not intend to pursue her application, within the meaning of Article 37 § 1 (a) of the Convention. 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.
14. 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