THIRD SECTION
DECISION
Application no. 67535/01
by Roya PISHEHWARI
against the Netherlands
The European Court of Human Rights (Third Section), sitting on 29 November 2007 as a Chamber composed of:
MrB.M. Zupančič, President,
MrC. Bîrsan,
MrsE. Fura-Sandström,
MrE. Myjer,
MrDavid Thór Björgvinsson,
MrsI. Ziemele,
MrsI. Berro-Lefèvre, judges,
and Mr Santiago Quesada, Section Registrar,
Having regard to the above application lodged on 6 February 2001,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having regard to the decision to adjourn the Court’s proceedings pending the outcome of proceedings in the Netherlands,
Having deliberated, decides as follows:
THE FACTS
The applicant, Ms Roya Pishehwari, is an Iranian national, who was born in 1968 and currently resides in Amsterdam. She was successively represented before the Court by Ms G.A.P. Avontuur, a lawyer practising in Breda, Mr F.W. King, a legal adviser practising in Leiden, and Ms S. Karadağ and Mr R.J. Hamerslag, both lawyers practising in Amsterdam. The respondent Government were represented by their Agent Ms J. Schukking, of the Ministry of Foreign Affairs.
The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 26 July 2000 the applicant, accompanied by her son and daughter, who were born in 1990 and 1993 respectively, arrived in the Netherlands. She applied for asylum on 30 July 2000, submitting that, whilst living in the house of her father-in-law following the death of her husband, she had been working as a prostitute in order to earn money to pay for a special-needs teacher for her daughter. In May 2000 she had been caught in flagrante delicto by her father-in-law, after which she had fled the house and, a short while later, the country. She had taken her two children with her, thereby committing the offence of kidnap given that guardianship of the children rested with her father-in-law. She feared that she would be convicted of prostitution in Iran and sentenced to death by stoning.
The asylum request was rejected, the final decision being taken by the Acting President of the Regional Court (arrondissementsrechtbank) of The Hague on 23 August 2000. However, the applicant did not leave the country and neither was she forcibly expelled.
The applicant subsequently, and after she had introduced the present application with the Court, applied for a residence permit for the purpose of receiving medical treatment in the Netherlands, as she had been diagnosed as suffering from a post-traumatic stress disorder. In addition, she also asked the Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie; “the Minister”) to grant her a residence permit in derogation of existing policy rules. On 16 June 2005 the Court decided to adjourn its examination of the present application pending these proceedings in the Netherlands.
The request for a residence permit for the purposes of receiving medical treatment was unsuccessful; the proceedings on this request ended with a decision of the Regional Court of The Hague, sitting in Amsterdam, of 18 December 2006, against which the applicant chose not to lodge a further appeal. The Court has not been informed of the outcome of the applicant’s request for a residence permit in derogation of existing policy rules.
On 8 August 2007 the applicant’s representative informed the Court that the applicant and her children 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, which amnesty had entered into force on 15 June 2007. According to the representative, one of the conditions for being issued this residence permit was the withdrawal of all pending proceedings, including the present application. In its reply of 5 September 2007, the Court’s Registry – basing itself on information available in the public domain – informed the representative that the issuance of a residence permit pursuant to the general amnesty was not dependent on the withdrawal of proceedings pending before the European Court of Human Rights. He was therefore requested to inform the Court whether, in the present circumstances – with the applicant no longer at risk of expulsion – she nevertheless wished to maintain her application and, if so, for what reason she was of the view that the Court ought to continue the examination of the case. The same request was repeated in a telephone conversation between the representative and a member of the Registry of 19 September 2007.
In a letter of 20 September 2007, the applicant’s representative informed the Court that she liked to maintain the application.
COMPLAINTS
The applicant originally complained that her expulsion to Iran would expose her to a real risk of being subjected to treatment in breach of Articles 2 and 3 of the Convention and Article 1 of Protocol No. 6. Under Article 13 of the Convention she further complained that her asylum application had not received thorough examination.
THE LAW
The applicant complained that a forced return to Iran would be in violation of Articles 2 and 3 of the Convention and Article 1 of Protocol No. 6 and that the domestic proceedings had violated her rights under Article 13. However, the Court notes that the applicant has now been granted a residence permit in the Netherlands and that she is thus no longer at risk of being expelled. While the applicant has indicated that she nevertheless wishes to maintain her application, the Court observes that no reasons have been advanced for this, despite the fact that the applicant’s representative was twice requested to do so. In these circumstances, and having regard to Article 37 § 1 (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 examination of the application to be continued. Accordingly, it is appropriate to discontinue the application of Article 29 § 3 of the Convention to strike the case out 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