THIRD SECTION
DECISION
Applications nos. 63999/13 and 60814/14
S.B. against the Netherlands
and M.R. against the Netherlands
The European Court of Human Rights (Third Section), sitting on 17 November 2015 as a Committee composed of:
Helen Keller, President,
Johannes Silvis,
Pere Pastor Vilanova, judges,
and Marialena Tsirli, Deputy Section Registrar,
Having regard to the above applications lodged on 10 October 2013 and 2 September 2014 respectively,
Having regard to the interim measures indicated to the respondent Government under Rule 39 of the Rules of Court and the fact that these interim measures have been complied with,
Having regard to the factual information submitted by the respondent Government and the written comments in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
1. The applicant in the first case, Mr S.B., is an Iranian national who was born in 1980 and is currently residing in the Netherlands. The Acting President decided to grant the applicant anonymity under the terms of Rule 47 § 4 and Rule 33 § 2 of the Rules of Court. He was represented before the Court by Mr M. Wijngaarden, a lawyer practising in Amsterdam.
2. The applicant in the second case, Mr M.R., is an Iranian national, who was born in 1984 and is currently residing in the Netherlands. The President decided to grant the applicant anonymity under the terms of Rule 47 § 4 and Rule 33 § 2. He was represented before the Court by Ms G. van Reemst, a lawyer practising in Utrecht.
3. The Netherlands Government (“the Government”) were represented by their Agent, Mr R.A.A. Böcker, of the Ministry of Foreign Affairs.
A. The circumstances of the case
4. The facts of the cases, as submitted by the parties, may be summarised as follows.
1. Application no. 63999/13
5. On 2 January 2012 the applicant filed a first asylum request in the Netherlands. He stated, inter alia, that he had fled Iran illegally.
6. The applicant filed three unsuccessful asylum requests in total. The final, negative decision on his third asylum request was given by the Administrative Jurisdiction Division of the Council of State (Raad van State) on 28 August 2013.
2. Application no. 60814/14
7. On 14 February 2011 the applicant filed a first asylum request in the Netherlands. He submitted, inter alia, that he had fled Iran holding a false passport. He held an identity card, the validity of which had expired in January 2011.
8. The applicant filed two unsuccessful asylum requests in total. The final, negative decision on his second asylum request was given by the Administrative Jurisdiction Division on 27 June 2014.
B. Developments after the introduction of the applications
1. Application no. 63999/13
9. The application was lodged with the Court on 10 October 2013. On 20 November 2013, the Acting President of the Section decided, under Rule 39 of the Rules of Court, to indicate to the 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 Iran for the duration of the proceedings before the Court. The Acting President further decided that the Government should be invited to submit their written observations on the admissibility and merits of the case (Rule 54 § 2 (b)) and that the applicant be granted anonymity (Rule 47 § 4).
10. The Government submitted their observations on 20 February 2014 and the applicant’s observations in reply were submitted on 1 May 2014. The Government filed further observations on 22 July 2014.
11. On 9 October 2014, the applicant filed additional, unsolicited materials, which were accepted by the President for inclusion in the case file. The Government’s comments on these additional materials were submitted on 17 November 2014.
12. On 11 March 2015, a number of factual questions were put to the Government which concerned practical aspects of removals to Iran, including the applicant’s removal. The Government submitted their reply on 22 April 2015 and the applicant’s written comments were submitted on 8 June 2015.
13. The Government submitted that removal of rejected asylum-seekers to Iran was only possible when they held a valid travel document, and that the Iranian mission only issued travel documents to Iranian nationals who confirmed that they wanted to return to Iran voluntarily. For an attempt to obtain a travel document to be successful the applicants would have to be willing to cooperate. The applicant had repeatedly sought ways to prevent his removal and, given his uncooperative attitude, no attempts had been made to obtain a travel document for him from the Iranian authorities.
14. The applicant stated, inter alia, that he had never held a valid travel document and that, in any event, it would not be possible for him to obtain a travel document from the Iranian authorities as he did not have any original documents corroborating his identity, as required for this purpose.
2. Application no. 60814/14
15. The application was lodged with the Court on 2 September 2014. On 11 September 2014, the President of the Section decided, under Rule 39 of the Rules of Court, to indicate to the 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 Iran until further notice. The President further decided that the Government should be invited to submit their written observations on the admissibility and merits of the case (Rule 54 § 2 (b)) and that the applicant be granted anonymity (Rule 47 § 4).
16. The Government submitted their observations on 8 December 2014 and the applicant submitted observations in reply on 20 January 2015.
17. On 11 March 2015 a number of factual questions were put to the Government which concerned practical aspects of removals to Iran, including the applicant’s removal. The Government submitted their reply on 13 April 2015 and the applicant’s written comments were submitted on 3 June 2015.
18. The Government submitted that removal of rejected asylum-seekers to Iran was only possible when they held a valid travel document, and that the Iranian mission only issued travel documents to Iranian nationals who confirmed that they wanted to return to Iran voluntarily. For an attempt to obtain a travel document to be successful the applicants would have to be willing to cooperate. The Government further stated that some years ago an unsuccessful attempt had been made to obtain a travel document for the applicant from the Iranian authorities, and that the applicant had indicated in June 2014 to the Netherlands authorities that he was not prepared to fill out the necessary forms to acquire a travel document.
19. The applicant confirmed that he had indicated to the Netherlands authorities that he was unwilling to return to Iran and that he would not fill out the necessary form to acquire a travel document that would allow his return to Iran.
COMPLAINTS
20. The applicants complained that their removal to Iran would expose them to a real risk of being subjected to treatment proscribed by Article 3 of the Convention. They further complained under Article 13 of the Convention that they did not have an effective remedy in Dutch national law in respect of their complaint under Article 3.
21. The applicant in application no. 63999/13 further alleged a violation of Article 13 taken together with Article 9 of the Convention.
THE LAW
A. Joinder of the applications
22. Given their similar factual and legal background, the Court decides to join these two applications in accordance with Rule 42 § 1 of the Rules of Court.
B. The applicants’ complaint under Article 3 of the Convention
23. Article 37 § 1 of the Convention provides:
“The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that
(a) the applicant does not intend to pursue his application; or
(b) the matter has been resolved; or
(c) for any other reason established by the Court, it is no longer justified to continue the examination of the application.
However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”
24. The Court reiterates at the outset that, according to its established case-law in cases concerning the expulsion of an applicant from a respondent State, once the applicant no longer risks being expelled from that State, it considers the case to have been resolved and strikes it out of its list of cases, whether or not the applicant agrees (see M.E. v. Sweden (striking out) [GC], no. 71398/12, § 32, 8 April 2015).
25. The Court notes that the Netherlands authorities do not, at least for as long as the applicants have no valid travel documents, intend to proceed with their actual removal to Iran. It further notes that the applicants’ cooperation is a condition sine qua non for obtaining a travel document from the Iranian mission in the Netherlands and that the applicants are not prepared to cooperate. It lastly notes that, should any practical steps aimed at the applicants’ effective removal to Iran nevertheless be taken in the future, they may challenge this (see K. v. the Netherlands (dec.), no. 33403/11, §§ 25 and 28, 25 September 2012).
26. In the light of the foregoing, and in the absence of any special circumstances regarding respect for the rights guaranteed by the Convention or its Protocols, the Court, in accordance with Article 37 § 1 (c) of the Convention, considers that it is no longer justified to continue the examination of the applicants’ complaints under Article 3 of the Convention.
C. Other complaints
27. The applicants also alleged a violation of their rights under Article 13 taken together with Article 3 and, in application no. 60814/14, also under Article 13 taken together with Article 9 of the Convention. Having regard to all the material in its possession, and in so far as these complaints fall within its competence, the Court finds that there is no appearance of a violation of the provisions invoked. It follows that this part of the applications must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
28. The application of Rule 39 of the Rules of Court in both applications therefore comes to an end.
For these reasons, the Court, unanimously,
Decides to join the applications;
Decides to strike the applications out of its list of cases in so far as they concern complaints raised under Article 3 of the Convention;
Declares inadmissible the remainder of the applications.
Done in English and notified in writing on 10 December 2015.
Marialena TsirliHelen Keller
Deputy RegistrarPresident
Full & Egal Universal Law Academy