19 October 2015

THIRD SECTION

Application no 16177/14 by J.W. against the Netherlands lodged on 17 March 2014

STATEMENT OF FACTS

The applicant claims that he is a Somali national who had been legally residing in Canada until the Canadian authorities terminated his lawful stay in view of his criminal record. The Canadian authorities intended to remove the applicant to Somalia. During the stopover in the Netherlands he filed an asylum request, which was rejected. He is currently living in an open reception centre for asylum-seekers in The Netherlands . He is represented before the Court by Mr N.C. Blomjous , a lawyer practising in Amsterdam.

The applicant complains that, if returned to Canada , he fears refoulement to Somalia. He claims that if expelled to Somalia, he will run a real and personal risk of treatment contrary to Article 3 of the Convention. Invoking Article 3 together with Article 13 he complains that his claim of a real and personal risk was not subjected to rigorous scrutiny during his asylum proceedings and that proceedings before the provisional-measures judge who dealt with his request for a stay of expulsion pending his objection against removal did not constitute an effective remedy. Moreover, the objection proceedings did not enjoy suspensive effect.

QUESTIONS TO THE PARTIES

1. Does the application concern a matter which is essentially the same as that which the applicant submitted to the Human Rights Committee on 26 July 2010 (no. 1959/2010)?

2. Would the applicant’s expulsion to Canada be contrary to Article 3 of the Convention in that it would expose him to a real risk of being subjected to treatment in breach of that provision as a result of an onward removal to Somalia? In particular, would the applicant ˗ even in the absence of new facts or circumstances that have not previously been assessed by the competent Canadian authorities ˗ be able to enjoy effective procedural safeguards in Canada in respect of his claim that a removal from that country to Somalia would expose him to a real risk of being subjected to inhuman or degrading treatment? Would any risk of ill-treatment that the Canadian authorities may find the applicant would be subjected to in Somalia, be balanced against the reason for his expulsion from Canada, i.e. his criminal record?

3. Did the applicant have at his disposal an effective domestic remedy for his complaint under Article 3 in relation to his expulsion to Canada, as required by Article 13 of the Convention? In particular, can the objection which the applicant lodged on the basis of section 72 § 3 of the Aliens Act 2000 against the decision to expel him to Canada be considered an effective remedy, within the meaning of that provision, inter alia having regard to the fact that it did not enjoy automatic suspensive effect?