THIRD SECTION

DECISION

Application no. 44879/06 by Mohammad Bashir SHARIF against the Netherlands

The European Court of Human Rights (Third Section), sitting on 6 September 2007 as a Chamber composed of:

Mr B.M. Zupančič , President , Mr C. Bîrsan , Mrs E. Fura-Sandström , Mrs A. Gyulumyan , Mr E. Myjer , Mrs I. Ziemele , Mrs I. Berro-Lefèvre, judges , and Mr S. Quesada , Section Registrar ,

Having regard to the above application lodged on 6 November 2006,

Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court and the fact that this interim measure has been complied with,

Having regard to the decision to grant priority to the above application unde r Rule 41 of the Rules of Court,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Mohammad Bashir Sharif , is a n Afghan national who was born in 1961 and lives in Bergambacht . He was represented before the Court by Ms F.M. Holwerda , a lawyer practising in Amsterdam . 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.

The applicant ’ s first asylum application in the Netherlands, lodged on 4 December 1999 and based on his alleged fear of persecution and ill ‑ treatment on account of his having worked for the secret police ( Khadamat -e Etela ’ at -e Dawlati ) during the communist regime in Afghanistan, was rejected by the Minister for Immigration and Integration ( Minister voor Vreemdelingenzaken en Integratie ). It was considered that the applicant ’ s situation fell within the scope of Article 1 F of the Convention Relating to the Status of Refugees of 28 July 1951 (“the 1951 Convention”), which provides as follows:

“The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

(c) he has been guilty of acts contrary to the purposes and principles of the United Nations.”

The applicant ’ s appeal against this decision was declared inadmissible on 23 January 2003 as his representative had omitted to submit grounds for the appeal .

On 10 February 2004 a public prosecutor informed the immigration service that no criminal prosecution would be instigated against the applicant in the Netherlands .

The applicant lodged a second asylum application on 2 November 2005, arguing inter alia that even if Article 1 F of the 1951 Convention were held to apply, the national authorities should nevertheless examine whether his expulsion would be in violation of Article 3 of the Convention. Such an examination had not been carried out in his case.

Following the rejection of the new application by the Minister on 13 December 2005, the Regional Court ( arrondissementsrechtbank ) of The Hague , sitting in Amsterdam , upheld the applicant ’ s appeal, considering that the Minister ought to have re-assessed the applicability of Article 1 F of the 1951 Convention in view of the decision not to institute criminal proceedings against the applicant . On 18 September 2006, however, the Administrative Jurisdiction Division of the Council of State ( Afdeling Bestuursrechtspraak van de Raad van State ) upheld the Minister ’ s appeal against the decision of the Regional Court, finding that the Minister had not been required to re-assess the applicability of Article 1 F given that the decision to apply that provision was taken on the basis of a different standard of proof than the decision whether or not to institute criminal proceedings.

In a letter of 28 March 2007 the Government informed the Court that the Deputy Minister of Justice ( Staatssecretaris van Justitie ) acknowledged that the applicant ’ s complaint, inasmuch as it was based on Article 3 of the Convention, had not, or in any case not explicitly, been addressed by a national court. The applicant ’ s complaint based on Article 13 of the Convention would therefore appear to be justified. For this reason, the Deputy Minister had withdrawn the decision of her predecessor (the Minister for Immigration and Integration) of 13 December 2005 and intended to take a fresh decision on the asylum application. The applicant would not be expelled until a final decision on that application had been taken.

The applicant informed the Court on 26 April 2007 that, in view of this development, he wished to withdraw his application.

COMPLAINTS

The applicant originally complained that his expulsion to Afghanistan would expose him to a real risk of being subjected to treatment in breach of Article 3 of the Convention. He further complained that, in violation of Article 13, the domestic judicial authorities had not examined his complaint under Article 3.

THE LAW

The applicant complained that a forced return to Afghanistan would violate his rights under Article 3 of the Convention and that the domestic proceedings had violated his rights under Article 13 of the Convention. However, the Court notes that the decision on the applicant ’ s second asylum application has been withdrawn, that a new decision will be taken, that the applicant is allowed to remain in the Netherlands pending those proceedings and that, for this reason, he does not intend to pursue his application. In these circumstances, and having regard to Article 37 § 1 (a) of the Convention, 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 examination of the application to be continued. Accordingly, the interim measure under Rule 39 of the Rules of Court should be discontinued and the application struck out of the list.

For these reasons, the Court unanimously

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

Santiago Quesada Boštjan M. Zupančič Registrar President