THIRD SECTION
DECISION
Application no. 1734/04
by Modey YUUSUF NUUR
against the Netherlands
The European Court of Human Rights (Third Section), sitting on 31 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 15 January 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 regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Modey Yuusuf Nuur, is a Somali national, who was born in 1985 and is currently staying in the Netherland. He 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 parties, may be summarised as follows.
On 3 September 2003 the applicant applied for asylum in the Netherlands, submitting that he hailed from southern Somalia and belonged to the Lidha Yar Yar sub-clan of the small Awr Male clan, whose members were unable to obtain protection against acts committed by militia belonging to the majority Habr Gedir clan who, in order to obtain the farm owned by the applicant’s family, inter alia killed the applicant’s parents and twice shot and wounded the applicant. He was placed in aliens’ detention.
The Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie – “the Minister”) refused the asylum application on 7 September 2003. By a decision of 22 September 2003, the provisional-measures judge (voorzieningenrechter) of the Regional Court (rechtbank) of The Hague, sitting in Haarlem, declared the applicant’s appeal against that decision unfounded and dismissed his request for a provisional measure. The applicant did not lodge a further appeal (hoger beroep) to the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State).
A second application for asylum, lodged by the applicant on 15 December 2003, was rejected on 18 December 2003. Pending the applicant’s appeal against that decision, he learned that the Netherlands authorities were planning to deport him to the Puntland region of Somalia (one of the regions considered “relatively safe” by the Dutch immigration authorities), via Nairobi (Kenya) and Mogadishu, on 16 January 2004, the same day on which the Regional Court of The Hague, sitting in Amsterdam, was scheduled to examine his request for a stay of his expulsion.
The Regional Court having refused to bring the hearing forward, the applicant introduced the present application on 15 January 2004 and 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. That same day, 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 cancelled the applicant’s expulsion.
On 16 January 2004 the Regional Court of The Hague, sitting in Alkmaar, ordered the applicant’s release from aliens’ detention in view of the interim measure issued by the European Court.
The appeal against the refusal of the applicant’s second application for asylum was rejected by the Regional Court of The Hague, sitting in Amsterdam, on 22 January 2004. His further appeal was dismissed by the Administrative Jurisdiction Division of the Council of State on 25 May 2004.
On 7 July 2005 the Government informed the Court that the applicant was eligible for a residence permit on the basis of a temporary policy of protection for certain categories (categoriaal beschermingsbeleid) adopted by the Minister for Immigration and Integration on 24 June 2005 in respect of asylum seekers coming from certain parts of Somalia. In letters of 29 November 2007 and 4 January 2008 the applicant’s representative informed the Court that the applicant had been issued a residence permit pursuant to this policy, valid from 1 November 2005 until 1 November 2010, and that, in light of this fact, he wished to withdraw his application to the Court.
COMPLAINTS
The applicant originally complained under Articles 2 and 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, against which treatment he would be unable to obtain protection since there was no functioning government in Somalia.
He further complained under Article 5 § 1 (f) of the Convention that his detention had been unlawful; under Article 13 taken together with Articles 2 and 3 of the Convention that his claims had not been subjected to the rigorous scrutiny required; under Article 13 taken together with Article 5 that the necessity – and thus the lawfulness – of his detention had not been speedily examined; and, finally, under Article 14 that his expulsion to Puntland would amount to discrimination because he hailed from southern Somalia and belonged to a minority clan.
THE LAW
The applicant complained that a forced return to Somalia would breach his rights under Articles 2, 3 and 14 of the Convention and also alleged violations of Articles 5 and 13 of the Convention. However, the Court notes that the applicant has been granted a residence permit, that he is thus – and at least until November 2010 – no longer at risk of being expelled and that, for this reason, he does not intend to pursue his application.
In these circumstances, and having regard to Article 37 § 1 (a) and (b) 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