THIRD SECTION
DECISION
Application no. 14029/04
by Ali NOOR MOHAMMED
against the Netherlands
The European Court of Human Rights (Third Section), sitting on 27 March 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 22 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 Ali Noor Mohammed, is a Somali national who was born in 1968 and living in the Netherlands at the time the application was introduced. He was represented before the Court by Mr H.B. Boogaart, a lawyer practising in Groningen. 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 7 June 2001 the applicant applied for asylum in the Netherlands, submitting that, because he belonged to the minority Reer Hamar population group, his life in Mogadishu was made unbearable. Members of the ruling clans used to discriminate against him, swear at him and steal his merchandise. In addition, in 2000, he was caught up in a clash between two rival clans, hit on the head with a rifle butt and stabbed in the arm with a bayonet.
The Deputy Minister of Justice (Staatssecretaris van Justitie) refused the asylum application on 10 December 2001, holding, inter alia, that the applicant could settle in one of the relatively safe areas of Somalia.
The applicant’s appeal against the denial of his asylum application was dismissed by the Regional Court (rechtbank) of The Hague, sitting in Zwolle, on 30 October 2003. Although available, the applicant chose not to lodge a further appeal (hoger beroep) to the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State), considering that such a course of action would be of no avail in light of that tribunal’s case-law on Somali nationals belonging to minority groups.
On 21 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 23 April 2004. On 22 April 2004 the applicant lodged an objection (bezwaar) against the decision to expel him as well as against the modalities of the expulsion. That same day, he also sought permission to lodge a second request for asylum. The Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie; the successor of the Deputy Minister of Justice) decided on 23 April 2004 that the applicant would not be allowed to await the outcome of either the objection or the request for asylum in the Netherlands. The applicant then requested the Regional Court of The Hague to issue a provisional measure to the effect that he would not be deported pending consideration of the objection and the new asylum application. The Court has not been informed of the outcome of these proceedings.
Also on 22 April 2004, the applicant introduced the present application to the Court. He further 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 23 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.
COMPLAINT
The applicant complained under Article 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 torture or inhuman or degrading treatment.
THE LAW
By letter dated 25 August 2005, Mr Boogaart informed the Court that he had lost contact with the applicant and that he was unaware of the latter’s whereabouts. On 16 October 2007 he confirmed that this continued to be the case.
The Court is of the opinion that the applicant’s failure to inform his representative of his current whereabouts must be taken as indicating that he has lost interest in pursuing his application. Although it is true that the applicant did authorise Mr Boogaart to represent him 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 Mr Boogaart 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).
That being so, the Court finds that further examination of the case is not justified. Consequently, the Court concludes that the applicant may be regarded as no longer wishing to pursue his 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. 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