THIRD SECTION

DECISION

Application no. 3418/05 by Mohamed Abdulaziz Teaima AFIFY against the Netherlands

The European Court of Human Rights (Third Section), sitting on 6 October 2005 as a Chamber composed of:

Mr B.M. Zupančič , President , Mr J. Hedigan , Mrs M. Tsatsa-Nikolovska , Mr V. Zagrebelsky , Mr E. Myjer , Mr David Thór Björgvinsson , Ms I. Ziemele, judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application lodged on 2 7 January 2005 ,

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

Having regard to the observations submitted by the respondent Government and the applicant ’ s letter of 9 August 2005 ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Mohamed Abdulaziz Teaima Afify, is an Egyptian national who was born in 1974 and currently resides in the Netherlands . He is represented before the Court by Mr J. Broersen , a lawyer practising in Haarlem .

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

On 24 October 1999 , the applicant left Egypt for Canada , where he unsuccessfully applied for asylum and subsequently, equally unsuccessful, for a residence permit on compelling humanitarian grounds. On 1 November 2003 , following a brief stay in Costa Rica , the applicant arrived in the Netherlands , where he applied for asylum. This request was rejected in a final decision taken on 5 March 2004 by the Administrative Jurisdiction Division ( Afdeling Bestuursrechtspraak ) of the Council of State ( Raad van State ).

A second asylum request filed by the applicant was rejected on 31 July 2004 by the Minister for Immigration and Integration ( Minister voor Vreemdelingenzaken en Integratie ). The applicant filed an appeal against this decision with the Regional Court ( arrondissementsrechtbank ) of The Hague and, i n order to be able to await the outcome of the appeal proceedings in the Netherlands , also applied for a provisional measure ( voorlopige voorziening ). By a decision of 19 August 2004 , the provisional ‑ measure s judge ( voorzieningenrechter ) of the Regional Court of The Hague, sitting in Arnhem , rejected the request for a provisional measure and, at the sam e time, dismissed the applicant ’ s appeal. Although the applicant could have filed an appeal against this ruling with the Administrative Jurisdiction Division, he did not avail himself of this possibility.

On 24 January 2005 , the applicant filed a third request for asylum in the Netherlands , which was rejected by the Minister on 2 February 2005 . The applicant filed an appeal with the Regional Court of The Hague as well as a request for a provisional measure.

On 18 February 2005 , the scheduled hearing on the applicant ’ s appeal and request for an interim measure was cancelled as the impugned decision of 2 February 2005 had been withdrawn in the meantime. To date, no new decision has been taken by the Minister on the applicant ’ s third asylum request.

COMPLAINTS

The applicant complained that, if expelled to Egypt , he would be exposed to a risk of treatment in breach of Article 3 of the Convention. He further complained that, on this point, he did not have an effective remedy within the meaning of Article 13 of the Convention.

PROCEDURE

The application was introduced to the Court on 27 January 2005 . On 2 February 2005, the Acting President of the Chamber to which the case had been allocated decided, under Rule 39 of the Rules of the 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 Egypt until further notice and further decided, under Rule 54 § 2 (b) of the Rules of Court, that the respondent Government should be invited to submit written observations on the admissibility and merits of the case.

By letter of 21 February 2005 , the applicant informed the Court that the decision of 2 February 2005 on the applicant ’ s third asylum request had in the meantime been withdrawn.

On 27 April 2005 , the respondent Government submitted their observations on the admissibility and merits. These were transmitted to the applicant, inviting him to submit observations in reply.

By letter of 9 August 2005 , the applicant informed the Court that, as his third asylum request was being re-examined by the Netherlands authorities; he did not wish to pursue the application. On 26 August 2005 , the respondent Government informed the Court that they did not wish to submit any comments concerning the applicant ’ s withdrawal of his application.

THE LAW

The Court notes that the applicant does not intend to pursue his application. Having regard to Article 37 § 1 (a) of the Convention and noting that it has not been argued and that it has not appeared that the applicant will be removed to Egypt in the imminent future, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require a continuation of the application by virtue of Article 37 § 1 in fine . 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.

Vincent Berger Boštjan M. Zupančič Registrar President