SECOND SECTION

DECISION

Application no. 52676/99 by Joseph NEHRU against the Netherlands

The European Court of Human Rights (Second Section) , sitting on 27 August 2002 as a Chamber composed of

Mr J.-P. Costa , President , Mr Gaukur Jörundsson ,

Mr C. Bîrsan , Mr K. Jungwiert , Mr V. Butkevych , Mrs W. Thomassen , Mrs A. Mularoni , judges , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application lodged on 9 November 1999 and registered on 17 November 1999,

Having deliberated, decides as follows:

THE FACTS

The applicant, Joseph Nehru, is a Sri Lankan national, who was born in 1955. His current whereabouts are unknown.

The case is being pursued before the Court by Mr P.J. Schüller, a lawyer practising in Amsterdam. A letter of authority has not been submitted.

A. The circumstances of the case

The facts of the case, as submitted by the applicant and apparent from the Court’s case-file , may be summarised as follows.

The applicant is a Sri Lankan national of Tamil ethnic origin.

The applicant entered Canada in December 1986 and claimed refugee status. In August 1992 the Canadian authorities found him to have “credible basis” and in March 1993 they recognised him as a refugee under the 1951 Convention relating to the Status of Refugees.

The applicant amassed thirteen convictions between 1989 and 1995: he was found guilty of, inter alia , theft, unlawful use of a credit card obtained by crime, assault, and dealing in cocaine. In 1996 the Canadian authorities put him on notice that he was a danger to the public. Despite this, he was convicted twice in 1998 for dealing in narcotics and for theft.

The Canadian immigration authorities drew up a “danger profile” containing an assessment of the risk the applicant would run if returned to his country of origin. This document, which was dated 15 June 1999, states that in his youth the applicant joined the Tamil United Liberation Front (TULF – a political organisation) but, when invited to join the Liberation Tigers of Tamil Eelam (LTTE), he refused. Nonetheless it is stated that he was arrested three times (in 1983, 1985 and 1986) on suspicion of being an LTTE member, but released after ten to twenty days. The document concludes:

“The subject may be at risk upon return to Sri Lanka; however, the danger to Canadian society outweighs any risk the subject may face.”

The applicant was deported from Canada.

On 18 August 1999 the applicant applied for asylum in the Netherlands while in transit to Sri Lanka.

The applicant was interrogated twice by Ministry of Justice officials, on 18 and 19 August 1999.

By letter of 22 September 1999 the Canadian Government informed the Deputy Minister of Justice ( Staatssecretaris van Justitie ) that they would take the applicant back.

On 24 September 1999 the Deputy Minister of Justice issued a decision rejecting the applicant’s asylum claim. The decision was based on the consideration that the Canadian authorities were prepared to take the applicant back. Since Canada was a party to both the 1951 Geneva Convention relating to the Status of Refugees and the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Deputy Minister considered that the applicant’s safety was sufficiently guaranteed. It was therefore not necessary to go into the merits of the applicant’s claims.

The applicant applied to the President of the Regional Court ( arrondissementsrechtbank ) of The Hague, sitting in Haarlem, for a provisional measure preventing his expulsion. A hearing was held on 8 October 1999.

The President of the Regional Court gave a decision on 3 November 1999, dismissing the applicant’s request for a provisional measure and deciding at the same time that the applicant’s asylum claim was unfounded on the merits. The reasoning was largely the same as that on which the Deputy Minister’s decision was based. It was noted in addition that the Canadian Government would allow the applicant to apply for a stay of his repeated expulsion from Canada.

On 9 November 1999 the applicant applied to the Court for an interim measure under Rule 39 of the Rules of Court on the ground that there was no guarantee that the Canadian authorities would not return him to Sri Lanka, where he would be at risk of treatment contrary to Article 3 of the Convention. On 10 November 1999 the President of the First Section decided not to indicate such a measure.

On 15 November 1999 the applicant lodged a second application for asylum with the Netherlands authorities.

On 17 November 1999 the Registrar of the First Chamber of the Court, duly authorised by the President of the Chamber, notified the Government of the respondent Party of the introduction of the application (Rule 40 of the Rules of Court).

The applicant was deported to Canada on 18 November 1999. According to information obtained from the applicant’s lawyer, the applicant was deported from Canada to Sri Lanka the following day.

It is not known whether the applicant sought to delay his repeated expulsion.

On 31 January 2001 the Registry of the Court wrote to Mr Schüller, asking him to submit a letter of authority and to inform the Court of the applicant’s fate and whereabouts, and also whether the applicant wished to pursue the proceedings.

Mr Schüller replied that he had attempted, both by himself and through the intercession of the Netherlands Ministry of Justice, to obtain information from the Canadian Government on the applicant’s fate and whereabouts. The Canadian Government, however, had indicated that it was prevented by Canadian privacy legislation from giving such information. Mr Schüller had written to the applicant at his last known address in Sri Lanka but had received no reply.

In reply to an enquiry of the Registry by letter of 5 October 2001, Mr Schüller stated that he had given the applicant his professional card and also that the applicant was in possession of documents bearing his – i.e. Mr Schüller’s – name and office address.

B. Relevant domestic law

Article 15c of the 1965 Aliens Act, as in force at the relevant time, provided, in relevant part:

“1. An application for admission as a refugee shall be rejected as manifestly ill-founded if:    ...

c. it is apparent that a country of prior residence will admit the alien until he has found durable protection elsewhere;    ...”

COMPLAINTS

It is alleged on the applicant’s behalf that the applicant’s deportation to Canada, in the absence of guarantees that he would not be deported from there to Sri Lanka, involved exposing the applicant to the danger of torture or inhuman or degrading treatment or punishment, contrary to Article 3 of the Convention.

THE LAW

Article 37 of the Convention provides as follows:

“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that

(a) the applicant does not intend to pursue his application; or

(b) the matter has been resolved; or

(c) for any other reason established by the Court, it is no longer justified to continue the examination of the application.

However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.

2. The Court may decide to restore an application to its list of cases if it considers that the circumstances justify such a course.”

No document has been submitted from which it appears that the applicant authorised Mr Schüller to pursue the application before the Court. Asked to produce such a document, Mr Schüller explained that he had been unable to resume contact with the applicant. He further stated, in a letter dated 23 February 2001:

“With regard to the letter of authority, I would like to state the following position.

My client expressed the wish to continue legal proceedings against his expulsion. This intention of my client was stipulated in the signing of the second asylum request. On 17 November 1999 the Court issued an urgency note on the Rule 40. The Government of the Netherlands forcefully returned my client to Canada the following day. Afterwards I received the required forms by the Court, including the letter of authority. I was thus no longer in a position to let my client sign the letter. His intentions are however unequivocal: he did not want to return to Sri Lanka and Canada. Proceedings on his behalf at a national level have made that intention clear.

The effectiveness of the Convention in asylum cases would be seriously limited and undermined if a member state could, by expedient expulsion and without due consideration to the issuing of an urgency note, prevent an applicant from seeking redress to the Court. I therefore request the second asylum request to be read as a letter of authority so long as there are no indications to the contrary.”

The Court notes at the outset that it cannot find it established that the applicant no longer wishes to pursue his application; nor has the matter been resolved.

A request in the applicant’s name for asylum dated 15 November 1999 and bearing an original signature has been submitted. However, this document cannot be construed as authorising Mr Schüller to pursue an application before the Court in the applicant’s name.

The Court notes that, around the time when he left the Netherlands (18 November 1999), the applicant was in possession of all the information he might require to get in touch with Mr Schüller. For whatever reason, the applicant has not contacted his former representative since then.

The applicant’s wish to remain in the Netherlands, however clearly expressed, does not, irrespective of the circumstances, justify pursuing the examination of the case. Given the impossibility of establishing any communication with the applicant, the Court considers that Mr Schüller cannot now meaningfully pursue the proceedings before it. That being so, the Court finds that further examination of the case is not justified. The application should therefore be struck out of the Court’s list of cases (cf. the Ali v. Switzerland judgment of 5 August 1998, Reports of Judgments and Decisions 1998-V, pp. 2148-49, § 32).

Although the Court would not exclude that an expulsion carried out speedily might frustrate an applicant’s attempts to obtain the protection to which he or she is entitled under the Convention, the Court notes that there is no indication that the applicant, during the period that has elapsed since his expulsion from the Netherlands, has sought in one way or another to contact his lawyer in the Netherlands in relation to his application. In these circumstances, the Court cannot but conclude that there is no indication whatsoever that the applicant intends to pursue his application. In reaching this conclusion, the Court has taken into account its competence under Article 37 § 2 of the Convention to restore the case to its list of cases if it considers that the circumstances justify such a course.

For these reasons, the Court unanimously

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

S. Dollé J.-P. Costa Registrar President