THIRD SECTION

DECISION

Application no . 2738/11 Hassan ABDI MOHAMMED 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, and Santiago Quesada , Section Registrar ,

Having regard to the above application lodged on 12 January 2011,

Having deliberated, decides as follows:

FACT S AND PROCEDURE

1. The applicant, Mr Hassan Abdi Mohammed, is a Somali national, who was born in 1991 and lives in Rotterdam . He was represented before the Court by Ms J. Hofstede , a lawyer practising in Almelo . The Dutch Government (“the Government”) were represented by their Agent, Mr R.A.A. Böcker , and their Deputy Agent, Ms L. Egmond , both 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 21 February 2009 the applicant applied for asylum in the Netherlands , submitting that he originated from Shalanbood in the Lower Shebelle region of southern Somalia and belonged to the minority Biyomaal clan. His parents had divorced when he was young and he had lived with his father, who had kept him inside as much as possible as it was too dangerous outside in view of his ethnicity and the general situation. The applicant had nevertheless been kidnapped twice. Following the killing of his father and brother in early 2008, the applicant had gone to live with his mother in Hargeisa , the capital of the self-declared state of Somaliland in the north. He had experienced serious problems there as a result of the fact that he belonged to a minority clan and originated from the south. Eventually his mother had arranged for him to leave the country in order for him to find a safe place to live.

4. The applicant ’ s asylum request was rejected by the Deputy Minister of Justice ( staatssecretaris van Justitie ) on 1 February 2010. His subsequent appeal was rejected by the Regional Court ( rechtbank ) of The Hague sitting in Groningen on 20 August 2010, and his further appeal by the Administrative Jurisdiction Division of the Council of State ( Afdeling Bestuursrechtspraak van de Raad van State ) on 15 November 2010.

B. Developments subsequent to the lodging of the application

5. On 7 March 2011 the applicant lodged a new application for asylum, which was refused by the Minister for Immigration, Integration and Asylum Policy ( minister voor Immigratie , Integratie en Asiel ; the successor to the Deputy Minister of Justice) on 15 March 2011. The applicant ’ s appeal against this decision was rejected by the Regional Court of The Hague sitting in Almelo on 30 September 2011. The applicant lodged a further appeal to the Administrative Jurisdiction Division of the Council of State.

6. On 8 December 2011 the Court asked the Government what, if any, practical consequences they would draw from its judgment in the cases of Sufi and Elmi v. the United Kingdom (nos. 8319/07 and 11449/07 , 28 June 2011), which concerned removals to the Somali capital Mogadishu , in relation to inter alia the present case. In their reply of 5 April 2012 the Government submitted that the Sufi and Elmi judgment gave them no reason to conclude that the applicant would be at real risk of treatment contrary to Article 3 of the Convention if he returned to Somaliland, where the militant Islamist group al- Shabaab had no power base and where the applicant had been living for about one year before coming to the Netherlands. However, as proceedings on the applicant ’ s second asylum request were still pending, the Government requested that the proceedings before the Court be adjourned until the Administrative Jurisdiction Division had rendered judgment.

7. The President of the Section decided to adjourn the Court ’ s proceedings on 21 May 2012, as requested by the Government.

8. The Administrative Jurisdiction Division rejected the applicant ’ s further appeal on 23 July 2012.

9. On 10 October 2012, in reply to questions put to them pursuant to Rule 49 § 3 (a) of the Rules of Court on 31 August 2012, the Government confirmed that if the applicant did not leave the Netherlands voluntarily he would be forcibly removed to Somaliland once the Dutch authorities were able to do so. Thus far, no steps had been taken to expel the applicant. Owing to the Somaliland Government ’ s unilateral termination of a Memorandum of Understanding which contained agreements between that country and the Netherlands on forced returns, it was not possible to expel aliens from Somaliland directly to that country. Moreover, the Netherlands did not currently effect expulsions of such individuals via domestic flights from Mogadishu to Hargeisa since no guarantees could be given that persons expelled in that manner would be admitted to Somaliland, and this meant that there was a risk of the person concerned being sent back to Mogadishu , which was regarded as unsafe. The Government nevertheless remained fully committed to finding ways of ensuring that expulsions to northern Somalia could be carried out in a responsible way and considered the current situation only as a temporary obstacle to expulsion. In light of the foregoing, the Somaliland authorities had not been asked for permission to allow the applicant to reside in their territory; before such permission was requested in individual cases, a general agreement on expulsions had to be reached first. Given that aliens could at present thus not be forcibly returned to Somaliland, there were currently no plans to expel anyone to northern Somalia , and – pursuant to a judgment of the Administrative Jurisdiction Division of 17 July 2012 (case nr. 201202473/1/V3) – individuals from that part of the country would no longer be placed in aliens ’ detention.

C. Relevant domestic law and practice

10. 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.

COMPLAINT

11. The applicant complained under Article 3 of the Convention that his expulsion to Mogadishu would expose him to a real risk of being subjected to inhuman treatment.

THE LAW

12. The applicant complained that his expulsion to Mogadishu would be in breach of Article 3 of the Convention which provides as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

13. 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 ‑ ...).

14. 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) .

15. 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.

16. However, in the present case it is clear from the information submitted by the Government that the applicant cannot be forcibly removed to either Somalia or Somaliland at the present time (see paragraph 9 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. 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 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.

17. The Court would additionally observe that not only may domestic law enable the applicant to challenge a future removal in the Netherlands (see paragraph 10), 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.

18. In view of the above, it is appropriate 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