THIRD SECTION

DECISION

Application no. 20816/05 by E . S . against the Netherlands

The European Court of Human Rights ( Third Section), sitting on 22 April 2008 as a Chamber composed of:

Josep Casadevall , President, Corneliu Bîrsan , Boštjan M. Zupančič , Egbert Myjer , Ineta Ziemele , Luis López Guerra , Ann Power , judges, and Santiago Quesada, Section Registrar ,

Having regard to the above application lodged on 3 June 2005,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,

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 E.S. , is an Iranian national who was born in 1976 and lives in The Hague . He wa s rep resented before the Court by Mr P .B.Ph.M . Bogaers , a lawyer practising in Nieuwegein . The Dutch Government (“the Government”) were represented by their Agent s, Ms J. Schukking and 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.

The applicant applied for asylum in the Netherlands on 8 February 2001, submitting that in Iran he had been involved in student demonstrations and in the publication of a book on the history of Islam, containing sharp criticism of the Iranian Islamic regime. He had been arrested and kept in detention for about one month, during which time he had been maltreated and tortured. The security services were looking for him.

The Deputy Minister of Justice ( Staatssecretaris van Justitie ) rejected the asylum application on 12 July 2001. The applicant appealed this decision. On 27 July 2004 the Regional Court ( rechtbank ) of The Hague , sitting in ‘ s ‑ Hertogenbosch, dismissed the appeal. The Regional Court found that the Deputy Minister could reasonably have concluded, firstly, that the applicant ’ s failure to submit, at the time he lodged his asylum application, documents establishing his identity, nationality and itinerary affected the sincerity of his account and detracted from its credibility, and secondly, that his account was not plausible.

The final decision on the application for asylum was taken on 15 December 2004 when the Administrative Jurisdiction Division of the Council of State ( Afdeling Bestuursrechtspraak van de Raad van State ), with summary reasoning, rejected the further appeal ( hoger beroep ) lodged by the applicant.

On 12 September 2007 the applicant informed the Court that he had been granted a residence permit pursuant to the terms of a general amnesty ( generaal pardon ) for certain rejected asylum seekers who had applied for asylum before 1 April 2001. Nevertheless, he wished to maintain h is complaint under Article 13 in conjunction with Article 3 of the Convention.

COMPLAINTS

The applicant complained that he would face a real risk of being subjected to treatment contrary to Articles 2, 3 and 5 of the Convention if he were forced to return to Iran .

Under Article 13 of the Convention he further complained of a lack of an effective remedy, arguing that the judicial review as provided by the Regional Court and the Administrative Jurisdiction Division of the Council of State in his case merely involved a marginal scrutiny, rather than a full review such as was required in cases where it was alleged that there was a real risk of human rights being violated.

THE LAW

A. Alleged violation of Articles 2, 3 and 5 of the Convention

The applicant originally complained that a forced return to Iran would be in violation of Article s 2, 3 and 5 of the Convention . However, t he Court notes that the applicant has now been granted a residence permit in the Netherlands and that he is, therefore, no longer at risk of being expelled. It would thus appear that this matter has been resolved; moreover, the applicant has not indicated that he wishes to pursue this complaint. In these circumstances, and hav ing regard to Article 37 § 1 (a and b) of the Convention, the Court is of the opinion that it is no longer justified to continue the examination of this part 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 examination of this part of the application to be continued. Accordingly, in so far as the complaint under Article s 2, 3 and 5 is concerned, it is appropriate to discontinue the application of Article 29 § 3 of the Convention and to strike the case out the list.

B. Alleged violation of Article 13 of the Convention in conjunction with Article 3

The applicant complained that the scope of the judicial review of the Deputy Minister ’ s decision to reject h is asylum application, including h is claim that h is removal to Iran would be in breach of Article 3, was too limited, depriving h im of an effective remedy as guaranteed by Article 13, which latter provision reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The applicant argued that, despite the fact that he had been granted a residence permit , the Court ought to continue its examination of this complaint, submitting that a ruling of the Court on this issue remained of importance since the Administrative Jurisdiction Division of the Council of State had not changed its case-law and continued to apply – and impose on lower courts – a marginal judicial review of assessments made by the Deputy Minister of Justice in asylum cases, a practice criticised by the United Nations Committee against Torture in a recent report [1] . Moreover, a decision by the Court on this matter would probably reduce the number of complaints of asylum proceedings in the Netherlands lodged with the Court. Finally, the applicant referred to the case of Gebremedhin [ Gaberamadhian ] v. France (no. 25389/05, 26 April 2007), in which the Court had examined the applicant ’ s complaint under Article 13 despite the fact that he had been recognised as a refugee.

The Government were of the view that, the applicant having been granted a residence permit, the case should be struck out of the Court ’ s list of cases on the basis of Article 37 § 1 (c) of the Convention, or, alternatively, be declared inadmissible since the applicant could no longer claim to be a victim within the meaning of Article 34 of the Convention.

The Court observes that it has dealt with exactly the same issue in the case of Mir Isfahani v. the Netherlands ( dec ., no. 31252/03, 31 January 2008), which also concerned a rejected asylum seeker who had been issued a residence permit pursuant to the terms of the general amnesty and who also complained under Article 13 in conjunction with Article 3 of the scope of the judicial review which had been available to her. It perceives no cause to reach a different conclusion in the present case than the one arrived at in the case of Mir Isfahani .

Having regard to the circumstances of the present case, therefore, and referring to the reasoning contained in the above-mentioned decision in Mir Isfahani , the Court considers that it is no longer justified to continue the examination of this part of the application within the meaning of Article 37 § 1 (c) of the Convention. Accordingly, also as regards the complaint under Article 13 in conjunction with Article 3, it is appropriate to discontinue the application of Article 29 § 3 of the Convention and to strike the case out of the list.

For these r easons, the Court unanimously

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

Santiago Quesada Josep Casadevall Registrar President

[1] 1. UN Committee Against Torture (CAT), Conclusions and Recommendations of the Committee against Torture: the Netherlands , 3 August 2007, CAT/C/NET/CO/4.