FIRST SECTION

DECISION

Application no. 44737/98 by Abdol Ali NAGHIPOUR against the Netherlands

The European Court of Human Rights (First Section) , sitting on 10 October 2000 as a Chamber composed of

Mrs E. Palm, President , Mrs W. Thomassen, Mr L. Ferrari Bravo, Mr C. Bîrsan, Mr J. Casadevall, Mr B. Zupančič, Mr T. Panţîru, judges , and Mr M. O’Boyle, Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 13 August 1998 and registered on 30 November 1998,

Having deliberated, decides as follows:

THE FACTS

A. The circumstances of the case [Note1]

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

The applicant is an Iranian national born in 1946.  He is of Kurdish ethnic origin.

Since 1979 the applicant has been a member of the organisation “Rahe Kargar” (which means literally “Path of the Worker”, but is more usually rendered as “Organisation of Revolutionary Workers in Iran” or “ORWI”).  This organisation is a political party espousing Communism and opposed to the present Iranian government.  It is illegal in Iran and its members are liable to arrest, torture and execution.  It has offices in Western countries including one in France.

The applicant is one of a family many of whose members are engaged in opposition politics.  One of his brothers has been granted asylum in Germany.  Another has been granted refugee status in the Netherlands.

The applicant entered the Netherlands on 10 April 1995, apparently on a forged Netherlands passport.  The following day he applied to the police for recognition of refugee status or, in the alternative, a residence permit on cogent humanitarian grounds.  He stated that he fled Iran through the mountains by mule on 15 March 1995.

On 7 September 1995 the applicant received a copy of the decision of the Deputy Minister of Justice, which was dated 6 August.  His requests for recognition of refugee status or a residence permit had been refused and he was to leave the Netherlands within four weeks.

The applicant applied to the Deputy Minister for administrative review ( herziening ) of this decision.

In accordance with an advisory opinion given by the Aliens Advisory Board ( Adviescommissie voor vreemdelingenzaken ) on 12 September 1996, the Deputy Minister of Justice gave a decision refusing the applicant’s request for administrative review on 28 January 1997.

The applicant appealed.  After holding hearings on 26 May 1997 and 16 September 1997, a single-judge chamber of the Regional Court of The Hague sitting in the town of Zwolle gave a decision on 30 September 1997 ordering the reopening of the investigations on the ground that insufficient clarity had been obtained with regard to the statement that since the applicant’s brother’s refugee status had been recognised in the Netherlands, the applicant was entitled to have his refugee status recognised also, on the ground that similar cases should be decided in a similar way.  The Regional Court ordered the file of the applicant’s brother to be produced before it.

The Regional Court gave its decision on 20 March 1998.  The applicant’s appeal was dismissed.  It was held, before all else, that the human rights situation in Iran was worrying but not such as to justify a finding that everyone coming from there ought to be recognised ipso facto as a refugee; nor was the sole fact that an asylum seeker had come from Iran in itself an indication that there was a legal basis for recognising his or her refugee status.  An individual assessment therefore had to be made.

The applicant had not managed to demonstrate to the Regional Court’s satisfaction that there was justification for his fears of persecution. The Regional Court had serious doubts as to whether the applicant was actually a member of that organisation.

COMPLAINTS

The applicant alleges that, in the event of his being deported to Iran, he would face a real risk of persecution, imprisonment and torture.  He relies on Article 3 of the Convention.

THE LAW

By a letter dated 23 December 1999, the Agent of the respondent Government informed the Court that the Deputy Minister of Justice had granted the applicant a residence permit.  A copy of the Deputy Minister’s decision, which took effect on 8 November 1999, was enclosed.

By a letter of 30 December 1999 the applicant’s representative informed the Court that in view of the Deputy Minister’s decision the applicant wished to withdraw the application.

The Court finds that the matter has been resolved.  It would nevertheless be open to the Court, having regard to its responsibilities under Article 37 § 1 in fine of the Convention, to continue its examination of the case if respect for human rights so required. However, that is not so in the present case.

In this connection, the Court points out that in several previous cases it has had occasion to rule on the responsibility under the Convention of a Contracting State where the complaint was that there existed substantial grounds for believing that the person concerned would, if expelled or extradited, face a real risk of being subjected to inhuman or degrading treatment in the country of destination (see the Soering v. the United Kingdom judgment of 7 July 1989, Series A no. 161, pp. 35-36, §§ 90-91; the Cruz Varas and Others v. Sweden judgment of 20 March 1991, Series A no. 201, p. 28, § 69; the Vilvarajah and Others v. the United Kingdom judgment of 30 October 1991, Series A no. 215, p. 36 §§ 107-08; and the Chahal v. the United Kingdom judgment of 15 November 1996, Reports of Judgments and Decisions 1996-V, p. 1859, §§ 95-97). In so doing, the Court has specified the nature and extent of the Contracting States’ obligations under the Convention in that regard.

Consequently, the case should be struck out of the Court’s list of cases in accordance with Article 37 § 1 (b) of the Convention.

For these reasons, the Court, unanimously,

DECIDES TO STRIKE THE APPLICATION OUT OF ITS LIST OF CASES .

Michael O’Boyle Elisabeth Palm Registrar President

[Note1] Where the parties’ description of the facts differ their respective versions of the facts should be set out separately.