THIRD SECTION

DECISION

Application no . 50925/10 A.K. against the Netherlands and 11 other applications (see list appended)

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 applications lodged between 3 September 2010 and 4 April 2012,

Having regard to the interim measures indicated in the applications 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 decision to grant priority to the above applications unde r Rule 41 of the Rules of Court,

Having regard to the decision to grant anonymity to the applicant s under Rule 47 § 3 of the Rules of Court,

Having regard to the information submitted by the respondent Government and the replies thereto submitted by some of the applicants,

Having deliberated, decides as follows:

THE FACTS

1. A list of the applicants is set out in the appendix. The Government of the Netherlands were represented by their Agent , Mr R.A.A. Böcker , and/or their Deputy Agent , Ms L. Egmond , both of the Ministry of Foreign Affairs.

A. The circumstances of the cases

2. The facts of the cases, as submitted by each of the applicants, may be summarised as follows.

1. Application no. 50925/10

3. The applicant is a national of Iraq , who was born in 1981 and hails from Baghdad . At the time of the introduction of the application , he was living in Luttelgeest . He was represented before the Court by Mr J.Th.A . Bos , a lawyer practising in Utrecht .

4. On 21 October 2008 the applicant applied for asylum in the Netherlands . This request was rejected by the Deputy Minister of Justice ( staatssecretaris van justitie ) on 7 August 2009. The applicant ’ s appeal against this decision was rejected on 25 March 2010 by the Regional Court ( rechtbank ) of The Hague sitting in Zwolle . The applicant ’ s subsequent further appeal to the Administrative Jurisdiction Division of the Council of State ( Afdeling Bestuursrechtspraak van de Raad van State ) was rejected on 3 June 2010. No further appeal lay against this ruling.

5. On 10 June 2010, the applicant filed a fresh asylum request which, pursuant to section 4:6 of the General Administrative Law Act ( Algemene Wet Bestuursrecht ), must be based on newly emerged facts or altered circumstances ( nieuw gebleken feiten of veranderde omstandigheden ) warranting a revision of the initial decision taken. This fresh request was rejected on 15 June 2010 by the Minister of Justice ( minister van Justitie ). The applicant ’ s appeal against this decision was rejected on 29 June 2010 by the provisional measures judge ( voorzieningenrechter ) of the Regional Court of The Hague sitting in Haarlem . The applicant ’ s subsequent further appeal to the Administrative Jurisdiction Division was rejected on 22 July 2010.

6. The application was introduced to the Court on 3 September 2010. On 7 September 2010, the President of the Section decided, under Rule 39 of the Rules of Court, to indicate to the respondent 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 Iraq . This indication was initially limited in time. On 24 January 2011, the President decided to prolong the Rule 39 indication until further notice.

2. Application no. 51943/10

7. The applicant is a national of Iraq , who was born in 1986 and hails from Baghdad . At the time of the introduction of the application, he was living in Ter Apel . He was represented before the Court by Ms P. Scholtes , a lawyer practising in The Hague .

8. On 14 July 2008 the applicant applied for asylum in the Netherlands . This request was rejected by the Deputy Minister of Justice on 15 April 2009. The applicant ’ s appeal against this decision was rejected on 30 December 2009 by the Regional Court of The Hague sitting in ‘ s ‑ Hertogenbosch. The applicant ’ s subsequent further appeal to the Administrative Jurisdiction Division was rejected on 12 March 2010.

9. The application was introduced to the Court on 31 August 2010. On 25 October 2010, the President of the Section decided, under Rule 39 of the Rules of Court, to indicate to the respondent Government not to expel the applicant to Iraq . This indication was initially limited in time. On 23 November 2010, the President decided to prolong the Rule 39 indication until further notice.

3. Application no. 63208/10

10. The applicant is a national of Iraq , who was born in 1983 and hails from Mosul . At the time of the introduction of the application , he was living in Utrecht . He was represented before the Court by Ms M.L. Hoogendoorn , a lawyer practising in Leiden .

11. On 18 June 2008 the applicant applied for asylum in the Netherlands . This request was rejected by the Deputy Minister of Justice on 9 June 2009. The applicant ’ s appeal against this decision was accepted on 16 December 2009 by the Regional Court of The Hague. It quashed the impugned decision and ordered the Deputy Minister to take a fresh decision on the applicant ’ s asylum request. The Deputy Minister ’ s appeal to the Administrative Jurisdiction Division was accepted on 30 August 2010. It quashed the judgment of 16 December 2009 and rejected the applicant ’ s appeal against the Deputy Minister ’ s decision of 9 June 2009.

12. On 8 February 2011, the applicant filed a fresh asylum request which was rejected on 25 August 2011 by the Minister for Immigration, Integratrion and Asylum Policy ( Minister voor Immigratie , Integratie en Asiel ), the successor to the Deputy Minister of Justice. The applicant appealed this decision but no further information has been submitted about the outcome of these proceedings.

13. The application was introduced to the Court on 29 October 2010. On the same date, the President of the Section decided, under Rule 39 of the Rules of Court, to indicate to the respondent Government not to expel the applicant to Iraq . This indication was initially limited in time. On 6 December 2010, the President decided to prolong the Rule 39 indication for the duration of the proceedings before the Court.

4. Application no. 63370/10

14. The applicant is a national of Iraq , who was born in 1967 and hails from Baghdad . At the time of the introduction of the application , he was living in Eindhoven . He was represented before the Court by Mr W.H.M. Ummels , a lawyer practising in Rotterdam .

15. On 23 June 2008 the applicant applied for asylum in the Netherlands . This request was rejected by the Deputy Minister of Justice on 17 February 2009. The applicant ’ s appeal against this decision was rejected on 9 March 2010 by the Regional Court of The Hague sitting in Assen . Although possible, a further appeal against this judgment to the Administrative Jurisdiction Division does not appear to have been lodged.

16. The application was introduced to the Court on 29 October 2010. On the same date, the President of the Section decided, under Rule 39 of the Rules of Court, to indicate to the respondent Government not to expel the applicant to Iraq . This indication was initially limited in time. On 23 November 2010, the President decided to prolong the Rule 39 indication until further notice.

5. Application no. 63396/10

17. The applicant is a national of Iraq , who was born in 1981 and hails from Baghdad . At the time of the introduction of the application, he was staying in Rotterdam . He was represented before the Court by Mr H. Tadema , a lawyer practising in Deventer .

18. On 14 July 2008 the applicant applied for asylum in the Netherlands . This request was rejected by the Deputy Minister of Justice on 4 February 2009. The applicant ’ s appeal against this decision was rejected on 6 January 2010 by the Regional Court of The Hague sitting in ‘ s ‑ Hertogenbosch. The applicant ’ s subsequent further appeal to the Administrative Jurisdiction Division was rejected on 12 April 2010.

19. The application was introduced to the Court on 12 October 2010. On 2 November 2010, the President of the Section decided, under Rule 39 of the Rules of Court, to indicate to the respondent Government not to expel the applicant to Iraq . This indication was initially limited in time. On 23 November 2010, the President decided to prolong the Rule 39 indication until further notice.

6. Application no. 63434/10

20. The applicant is a national of Iraq , who was born in 1984 and hails from Baghdad . At the time of the introduction of the application, he was staying in Rotterdam . He was represented before the Court by Mr P.J.M. van Kuppenveld , a lawyer practising in Oss .

21. On 18 November 2008 the applicant applied for asylum in the Netherlands . This request was rejected by the Deputy Minister of Justice on 6 August 2009. The applicant ’ s appeal against this decision was rejected on 31 August 2010 by the Regional Court of The Hague sitting in Dordrecht . The applicant filed a further appeal against this decision with the Administrative Jurisdiction Division but no further information has been submitted about the outcome of these proceedings.

22. The application was introduced to the Court on 1 November 2010. On 2 November 2010, the President of the Section decided, under Rule 39 of the Rules of Court, to indicate to the respondent Government not to expel the applicant to Iraq . This indication was initially limited in time. On 3 December 2010, the President decided to prolong the Rule 39 indication for the duration of the proceedings before the Court.

7. Application no. 70367/10

23. The applicant is a national of Iraq , who was born in 1982 and hails from Baghdad . At the time of the introduction of the application, he was residing in Arnhem . He was represented before the Court by Mr K.J. Meijer, a lawyer practising in St. Annaparochie .

24. On 5 June 2008 the applicant applied for asylum in the Netherlands . This request was rejected by the Deputy Minister of Justice on 12 February 2009. The applicant ’ s appeal against this decision was accepted on 18 September 2009 by the Regional Court of The Hague sitting in Groningen . It quashed the impugned decision and ordered the Deputy Minister to take a fresh decision on the applicant ’ s asylum request. The Deputy Minister ’ s appeal to the Administrative Jurisdiction Division was accepted on 4 June 2010 when that tribunal quashed the judgment of 18 September 2009, accepted the applicant ’ s appeal against the Deputy Minister ’ s decision of 12 February 2009 but ordered that its legal consequences were to remain intact.

25. The application was introduced to the Court on 1 December 2010. On 6 December 2010, the President of the Section decided, under Rule 39 of the Rules of Court, to indicate to the respondent Government not to expel the applicant to Iraq for the duration of the proceedings before the Court.

8. Application no. 71890/10

26. The applicant is a national of Iraq , who was born in 1966 and hails from Baghdad . At the time of the introduction of the application , he was living in Almelo . He was initially represented before the Court by Mr M.M. Volwerk , a lawyer practising in Leiden , who was succeeded by Mr A.H. Hekman , a lawyer practising in Utrecht .

27. On 27 September 2007 the applicant applied for asylum in the Netherlands . Under a general protection policy in respect of asylum seekers from Central Iraq , this request was granted on 8 July 2008 by the Deputy Minister of Justice. On 1 April 2009, after the discontinuation of that special protection police, the Deputy Minister – on the basis of an assessment of the applicant ’ s personal asylum account – decided to withdraw the applicant ’ s asylum-based residence permit. The applicant ’ s appeal against this decision was accepted on 30 December 2009 by the Regional Court of The Hague. It quashed the impugned decision and ordered the Deputy Minister to take a fresh decision on the applicant ’ s asylum request. The Deputy Minister ’ s appeal to the Administrative Jurisdiction Division was accepted on 30 September 2010 when that tribunal quashed the judgment of 30 December 2009 and rejected the applicant ’ s appeal against the Deputy Minister ’ s decision of 1 April 2009.

28. The application was introduced to the Court on 2 December 2010. On 14 December 2010, the President of the Section decided, under Rule 39 of the Rules of Court, to indicate to the respondent Government not to expel the applicant to Iraq for the duration of the proceedings before the Court.

9. Application no. 74227/10

29. The applicant is a national of Iraq , who was born in 1961 and hails from Baquba . At the time of the introduction of the application, she was living in Delfzijl . She was represented before the Court by Ms A.A.W.A. Vissers , a lawyer practising in ‘ s-Hertogenbosch.

30. On 29 September 2008 the applicant applied for asylum in the Netherlands . This request was rejected by the Deputy Minister of Justice on 7 September 2009. The applicant ’ s appeal against this decision was rejected on 2 August 2010 by the Regional Court of The Hague sitting in ‘ s ‑ Hertogenbosch. The applicant ’ s subsequent further appeal to the Administrative Jurisdiction Division was rejected on 19 October 2010. No further appeal lay against this ruling.

31. The application was introduced to the Court on 20 December 2010. On 22 December 2010, the President of the Section decided, under Rule 39 of the Rules of Court, to indicate to the respondent Government not to expel the applicant to Iraq for the duration of the proceedings before the Court.

10. Application no. 4009/11

32. The applicant is a national of Iraq , who was born in 1975 and hails from Baghdad . At the time of the introduction of the application , he was living in Gilze . He was represented before the Court by Ms E.L. Garnett, a lawyer practising in ‘ s-Hertogenbosch.

33. On 16 July 2008 the applicant applied for asylum in the Netherlands . This request was eventually rejected by the Deputy Minister of Justice on 15 September 2009. The applicant ’ s appeal against this decision was rejected on 24 September 2010 by the Regional Court of The Hague sitting in ‘ s-Hertogenbosch. The applicant ’ s subsequent further appeal was rejected by the Administrative Jurisdiction Division on 11 November 2011.

34. In the meantime, on 14 December 2010, the applicant had filed a fresh asylum request, which was rejected on 22 December 2010 by the Minister for Immigration, Integration and Asylum. The applicant ’ s appeal against this decision was rejected on 10 January 2011 by the provisional measures judge of the Regional Court of The Hague sitting in ‘ s-Hertogenbosch. On 17 January 2011, the applicant filed a further appeal to the Administrative Jurisdiction Division. No information about the outcome of these proceedings has been submitted.

35. The application was introduced to the Court on 18 January 2011. On 21 January 2011, the President of the Section decided, under Rule 39 of the Rules of Court, to indicate to the respondent Government not to expel the applicant to Iraq for the duration of the proceedings before the Court.

11. Application no. 27465/11

36. The applicants are a mother and son. They are citizens of Iraq , who were born in 1989 and 2009, respectively. The first applicant hails from Ninevah province. At the time of the introduction of the application, they were living in Beverwijk . They were represented before the Court by Mr E. Arslan , a lawyer practising in Amsterdam .

37. On 19 March 2009 the first applicant applied for asylum in the Netherlands . This request was rejected by the Deputy Minister of Justice on 7 October 2009. The first applicant ’ s appeal against this decision was declared inadmissible by the Regional Court of The Hague sitting in Maastricht on 3 December 2010 because of a procedural shortcoming. Although possible, the first applicant did not file a further appeal to the Administrative Jurisdiction Division.

38. On 7 February 2011 the first applicant filed a fresh asylum request, also on behalf of the second applicant who had been born in the meantime. This request was rejected on 15 February 2011 by the Minister for Immigration, Integration and Asylum. The applicants ’ appeal against this decision was rejected on 11 March 2011 by the Regional Court of The Hague sitting in Arnhem . The applicants ’ subsequent further appeal to the Administrative Jurisdiction Division was rejected on 19 April 2011.

39. The application was introduced to the Court on 3 May 2011. On 6 May 2011 the President of the Section decided, under Rule 39 of the Rules of Court, to indicate to the respondent Government not to expel the applicants to Iraq for the duration of the proceedings before the Court.

12. Application no. 20045/12

40. The applicant is a national of Iraq , who was born in 1971 and hails from Al- Naseriya . At the time of the introduction of the application, he had no fixed abode and was staying with different friends in the Netherlands . He was represented before the Court by Ms E.P.A. Zwart , a lawyer practising in Purmerend .

41. On 1 March 2009 the applicant applied for asylum in the Netherlands . This request was rejected by the Minister of Justice on 1 March 2010. The applicant ’ s appeal against this decision was accepted on 22 March 2011 by the Regional Court of The Hague sitting in Amsterdam . It quashed the impugned decision and ordered the Minister to take a fresh decision on the applicant ’ s asylum request. The Minister ’ s appeal to the Administrative Jurisdiction Division was accepted on 17 February 2012. It quashed the judgment of 22 March 2011 and rejected the applicant ’ s appeal against the Deputy Minister ’ s decision of 1 March 2010.

42. The application was introduced to the Court on 4 April 2012. On 13 April 2012, the Acting President of the Section decided, under Rule 39 of the Rules of Court, to indicate to the respondent Government not to expel the applicant to Iraq until further notice.

B. Developments subsequent to the lodging of the applications

43. On 2 October 2012 , in reply to questions put to them in accordance with Rule 54 § 2 (a) of the Rules of Court on 11 September 2012 , the Government submitted that – with the exception of a particular category of persons hailing from Northern Iraq [1] – due to a number of practical considerations it was currently impossible to expel to Iraq failed asylum seekers who have no valid travel documents and who do not wish to return voluntarily. The Government further submitted that they could not say whether their consultations with the Government of Iraq would produce a result before the end of 2012 so that forcible returns to Iraq could be resumed.

44. The applicants in the present cases have been invited to comment on the Government ’ s reply of 2 October 2012. Such comments were submitted in applications nos. 50925/10 , 51943/10 , 63208/10 , 63370/10 , 70367/10 , 74227/10 , 4009/11 and 20045/12.

C. Relevant domestic law and practice

45. 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

46. All applicants complained under Article 3 of the Convention that their expulsion to Iraq would expose them to a real risk of being subjected to inhuman treatment.

47. Some applicants further complained that in respect of their Convention grievance(s), they did not have an effective remedy within the meaning of Article 13 of the Convention. Some applicants also raised complaints under Articles 1, 2 and 8 of the Convention in relation to their expulsion to Iraq .

THE LAW

48. The applicants complained that their expulsion to Iraq 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.”

49. A number of applicants also raised complaints under other provisions of the Convention in relation to their removal to Iraq .

50. 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 ‑ ...).

51. 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, § 37 , Reports 1997-III ) .

52. 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.

53. However , in the present cases it is clear from the information submitted by the Government that the applicants cannot be forcibly removed to Iraq at the present time (see paragraph 43 above); they are therefore currently not at risk of being subjected to the treatment they allege to be in violation of Article 3 of the Convention or of the other Convention provisions invoked by them. 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 forcible removals can take place again. For this reason the Court finds that at the present time it is no longer justified to continue the examination of the applications (see mutatis mutandis Atmaca v. Germany ( dec .) , no. 45293/06 , 6 March 2012) and that they 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 cases.

54. The Court would additionally observe that not only may domestic law enable the applicants to challenge a future removal in the Netherlands (see paragraph 45 above) , the applicants may also , pursuant to Article 37 § 2, seek to have their applications to the Court restored should no domestic remedies capable of staying such a removal be available to them.

55. In view of the above , it is appropriate to lift the interim measure indicated under Rule 39 of the Rules of Court in the cases at hand and to strike them out of the list.

For these reasons, the Court unanimously

Decides to join the applications;

Decides to strike the applications out of its list of cases.

Santiago Quesada Josep Casadevall Registrar President

Appendix

No .

Application No .

Lodged on

Applicant

Date of birth

Place of residence at the time of introduction

Represented by

50925/10

03/09/2010

A.K.

26/06/1981

Luttelgeest

J.Th.A . BOS

51943/10

31/08/2010

M.T.

08/08/1986

Ter Apel

P. SCHOLTES

63208/10

29/10/2010

A.O.F.J.

20/12/1983

Leiden

M.L. HOOGENDOORN

63370/10

29/10/2010

W.A.S.

21/06/1967

Eindhoven

W.H.M. UMMELS

63396/10

12/10/2010

S.R.

10/01/1981

Rotterdam

H. TADEMA

63434/10

01/11/2010

I.K.

01/12/1984

Rotterdam

P.J.M. VAN KUPPENVELD

70367/10

01/12/2010

M.H.

08/07/1982

Arnhem

K.J. MEIJER

71890/10

02/12/2010

I.W.

14/04/1966

Almelo

A.H. HEKMAN

74227/10

20/12/2010

A.W.A.

06/03/1961

Delfzijl

A.A.W.A. VISSERS

4009/11

18/01/2011

J.Q.

14/12/1975

Gilze

E.L. GARNETT

27465/11

03/05/2011

S.S.Y.

01/07/1989

and

S.S.K.

20/12/2009

Beverwijk

E. ARSLAN

20045/12

04/04/2012

B.Z.S.

01/01/1971

Beverwijk

E.P.A. ZWART

[1] Not of relevance for any of the applicants in the instant case s.