THIRD SECTION

DECISION

Application no . 70517/11 Ali MAHAMED AHMED 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, Santiago Quesada, Section Registrar ,

Having regard to the above application lodged on 8 November 2011,

Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

1. The applicant, Mr Ali Mahamed Ahmed, is a Somali national, who was born in 1987 and lives in Heerlen . He was represented before the Court by Ms J. van Veelen -de Hoop, a lawyer practising in Rotterdam . The Dutch Government (“the Government”) were represented by their Deputy Agent, Ms L. Egmond , of the Ministry of Foreign Affairs.

A. The circumstances of the case

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

3. On 8 September 2009 the applicant applied for asylum in the Netherlands , submitting that he originated from Awdhegle in the Lower Shebelle region of southern Somalia and belonged to the minority Begedi clan. He claimed that – after a dispute over a plot of land – first his father and several years later his uncle had been murdered by people who were after this plot which was owned by his father and later this uncle. Their assailants had been looking for the applicant as well, as he had inherited the plot from his uncle.

4. The applicant ’ s asylum request was rejected by the Deputy Minister of Justice ( staatssecretaris van Justitie ) on 15 September 2009. His subsequent appeal was rejected by the Regional Court ( rechtbank ) of The Hague sitting in Arnhem on 29 March 2011, and his further appeal by the Administrative Jurisdiction Division of the Council of State ( Afdeling Bestuursrechtspraak van de Raad van State ) on 20 June 2011.

B. Developments subsequent to the lodging of the application

5. On 18 November 2011 the applicant lodged a second asylum application, which he based on the general security situation in Somalia . He claimed that upon return he would encounter problems with the militant Islamist group al- Shabaab which was holding power in the region whence he originated. Upon return, he would be seen as a spy as he had been living in a Western country.

6. The Minister for Immigration, Integration and Asylum Policy ( Minister voor Immigratie en Asiel ; the successor to the Deputy Minister of Justice) rejected this application on 28 November 2011. The applicant ’ s appeal was dismissed by the Regional Court of The Hague sitting in Den Bosch on 16 December 2011, and his subsequent further appeal by the Administrative Jurisdiction Division on 2 February 2012.

7. The applicant lodged a third request for asylum on 24 May 2012, which he again based on the general security situation in Somalia . He claimed that in the Lower Shabelle region, fighting was going on between al- Shabaab and the Somali authorities supported by the African Union. He further claimed that al- Shabaab were still in power in his region and that he would be unable to adapt to life under al- Shabaab rules.

8. This third request was rejected by the Minister on 4 June 2012. The applicant filed an appeal which is currently still pending. On 5 June 2012 the applicant was placed in aliens ’ detention with a view to his expulsion.

9. On 19 June 2012, at the request of the applicant, the Acting President of the Section decided to indicate to the Government of the Netherlands that the applicant should not be expelled to Somalia for the duration of the proceedings before the Court (Rule 39 of the Rules of Court). The Acting President further decided to give notice to the Government of the applicant ’ s complaints detailed below (Rule 54 § 2 (b)).

10. On 2 October 2012, in reply to questions put to them pursuant to Rule 54 § 2 (a) of the Rules of Court on 11 September 2012, the Government submitted that it had been decided that the security situation in Mogadishu was sufficiently poor for the circumstances there to qualify as an exceptional situation as described in Article 15, opening words and (c) of the Council of the European Union Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection. Accordingly, it was assumed that anyone returning to Mogadishu faced a real risk of serious harm and thus treatment in breach of Article 3 of the Convention, by his or her mere presence there.

11. The Government further stated that no such exceptional situation was currently assumed to obtain in the rest of southern and central Somalia , or at Mogadishu International Airport . People from southern and central Somalia and people from Mogadishu for whom an alternative place of settlement could be found in southern and central Somalia could, at present, be expelled only to Mogadishu airport. However, to the best of the Government ’ s knowledge, there were no regular domestic passenger flights available to other parts of southern and central Somalia . As it was not possible to travel by land from Mogadishu airport without passing through the city of Mogadishu, the Administrative Jurisdiction Division of the Council of State had held in a judgment of 17 July 2012 (case nr. 201202473/1/V3) that forced return of people from other parts of southern and central Somalia could not be effected via the airport, on account of the situation in the city of Mogadishu. As a result, people could not be expelled to southern and central Somalia . However, once the security situation allowed it, the Government aimed to facilitate such returns, possibly by flights to other airports in southern and central Somalia .

12. Since Dutch policy was premised on voluntary return – which was possible to southern and central Somalia – the Government had not changed their admissions policy for asylum seekers from Somalia simply because forced expulsion was not possible at present.

13. The Government submitted that it was currently impossible to say whether or when existing policy would be changed. As soon as the general security situation or changes to domestic travel options gave reason to conclude that expulsion can be carried out in a responsible manner, the Government intended to make use of this possibility.

14. In his comments on the information given by the Government, the applicant submitted inter alia that it was not reasonable to leave him in uncertainty for such a protracted period of time.

C. Relevant domestic law and practice

15. In a ruling of 3 December 2008 ( Landelijk Jurisprudentie Nummer [National Jurisprudence Number] BG5955), the Administrative Jurisdiction Division held that, apart from judicial review by the Regional Court and the Administrative Jurisdiction Division in administrative law appeal proceedings, in principle no further remedy lay against a decision to reject an alien ’ s request for admission to the Netherlands, as the lawfulness of the consequences of that decision had already been judicially determined in the administrative appeal proceedings. It nevertheless accepted that in certain exceptional circumstances, such as a relevant change of circumstances having occurred during the delay between the refusal of the admission request and an act aimed at effective removal ( daadwerkelijke uitzettingshandeling ), an objection ( bezwaar ) and subsequent appeal ( beroep ) may be filed against an act aimed at effective removal. Under the terms of section 72 § 3 of the Aliens Act 2000, such an act can be equated with a formal decision within the meaning of the General Administrative Law Act which can be challenged in separate administrative appeal proceedings.

COMPLAINTS

16. Invoking Article 1 of the Convention the applicant complained of the refusal of his request for protection. He further complained under Articles 2 and 3 that his expulsion to Somalia would expose him to a real risk of falling victim to violence and to being subjected to inhuman treatment. He also argued that upon return to Somalia he would have to live his life in hiding, which amounted to a violation of Article 5.

THE LAW

17. The applicant complained that a number of Convention articles would be violated if he were forced to return to Somalia .

18. At the outset, the Court reiterates that Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens (see, for example, Abdulaziz , Cabales and Balkandali v. the United Kingdom , 28 May 1985, § 67, Series A no. 94; Boujlifa v. France , 21 October 1997, § 42, Reports of Judgments and Decisions 1997 ‑ VI; and Ãœner v. the Netherlands [GC], no. 46410/99, § 54, ECHR 2006-XII). However, the expulsion of an alien by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person in question, if deported, would face a real risk of being subjected to treatment contrary to Article 3 in the receiving country. In these circumstances, Article 3 implies the obligation not to remove the person in question to that country (see, among other authorities, Soering v. the United Kingdom , 7 July 1989, § 91, Series A no. 161, and Saadi v. Italy [GC], no. 37201/06, §§ 124-125, ECHR 2008 ‑ ...).

19. The Court has held that in this type of case it is therefore called upon to assess the situation in the receiving country in the light of the requirements of Article 3. With regard to the material date, the Court has on many occasions stressed that the existence of the risk must be assessed primarily with reference to those facts which were known or ought to have been known to the Contracting State at the time of expulsion. However, the Court has considered that if the applicant has not yet been extradited or deported when it examines the case, the relevant time will be that of the proceedings before the Court (see, for instance, Chahal v. the United Kingdom , 15 November 1996, §§ 85 and 86, Reports 1996-V, and Auad v. Bulgaria , no. 46390/10, § 99, 11 October 2011). It is furthermore the Court ’ s established case-law that even though the historical position is of interest in so far as it may shed light on the current situation and its likely evolution, it is the present conditions in the receiving country which are decisive (see Chahal , cited above, §§ 86 and 97, and H.L.R. v. France , 29 April 1997, Reports 1997-III, § 37) .

20. It is to be noted that when the Court examines a complaint under Article 3 relating to the removal of an alien who is, at the time of that examination, still on the territory of the Contracting State against which the complaint is directed, the underlying assumption is that the removal of that alien is imminent or, at the very least, possible, even if no exact date for the removal has been set yet. It is precisely to prevent irreparable damage being done to the asserted Convention right that the Court may see fit to apply Rule 39 of the Rules of Court and indicate to the Contracting State not to proceed with the removal pending the Court ’ s examination of the case.

21. However, in the present case it is clear from the information submitted by the Government that the applicant cannot be forcibly removed to Somalia at the present time (see paragraph 11 above); he is therefore currently not at risk of being subjected to the treatment he alleges to be in violation of Article 3 of the Convention or of the other Convention provisions invoked by him. There is, in addition, no indication that this situation will change in the near future. In these circumstances the Court considers that it would be less than efficient to proceed to an assessment of the present conditions in the receiving country, the more so when it can by no means be excluded that those conditions will have undergone a considerable change by the time the Government decide that removals can take place. For this reason the Court finds that at the present time it is no longer justified to continue the examination of the application (see mutatis mutandis Atmaca v. Germany ( dec .), no. 45293/06, 6 March 2012) and that it should be struck out of its list of cases in accordance with Article 37 § 1 (c) of the Convention. Moreover, 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.

22. The Court would additionally observe that not only may domestic law enable the applicant to challenge a future removal in the Netherlands (see paragraph 15 above), the applicant may also, pursuant to Article 37 § 2, seek to have his application to the Court restored should no domestic remedies capable of staying such a removal be available to him.

23. In view of the above , it is appropriate to lift the interim measure indicated under 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 Quesada Josep Casadevall Registrar President