THIRD SECTION

Application no . 70517/11 Ali MAHAMED AHMED against the Netherlands lodged on 8 November 2011

STATEMENT OF FACTS

The applicant, Mr Ali Mahamed Ahmed, is a citizen of Somalia. He was born in 1987 and is currently staying in the Netherlands . He is represented before the Court by Mrs J. van Veelen -de Hoop, a lawyer practising in Rotterdam .

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

The applicant applied for asylum in the Netherlands on 8 June 2009. He claimed that – after a dispute over a plot of land – first his father and several years later his uncle had been murdere d by people who were after this plot which was owned by his father and later this uncle . Th eir assailants had been looking for the applicant as well, as he had inherited the plot from his uncle.

On 15 September 2009 the then Deputy Minister of Justice ( Staatssecretaris van Justitie ) rejected the application as his account lacked credence. The applicant had failed to establish his account and claims.

The applicant appealed this decision. On 29 March 2011 the Regional Court of The Hague sitting in Arnhem ( rechtbank ), dismissed his appeal. It upheld the impugned decision.

The applicant ’ s subsequent and final appeal was dismissed on 20 June 2011 by the Administrative Jurisdiction Division of the Council of State ( Afdeling bestuursrechtspraak van de Raad van State ) on summary grounds.

On 18 November 2011 the applicant lodged a second asylum application, which he based on the general security situation in Somalia . He claimed that upon return he would encounter problems with the Al Shabaab militia , currently holding power in his province. Upon return, h e would be seen as a spy as he had been living in a Western country.

On 28 November 2011 the Minister for Immigration and Asylum ( Minister voor Immigratie en Asiel ; the Minister) rejected his application. The applicant had failed to establish a real and personal risk of a violation of Article 3 of the Convention . Apart from Mogadishu , the general security situation in Somalia did not constitute a situation which in itself entailed a violation of Article 3 of the Convention . As the applicant had been living in an Al Shabaab controlled area before he had left, it could be expected that he would be capable to adapt himself to their ways upon return.

The applicant ’ s appeal was dismissed by the Regional Court of The Hague sitting in Den Bosch, on 16 December 2011. It upheld the impugned decision.

The applicant ’ s subsequent appeal was dismissed on 2 February 2012 by the Administrative Jurisdiction Division on summary grounds .

On 24 May 2012 the applicant lodged a third asylum application, which he again based on the general security situation in Somalia . He claimed that in his province, Shabelle Hoose , fighting was going on between Al Shabaab and the Somali authorities supported by the African Union. He further claimed that Al Shabaab was still in power in his province a nd that he was unable to adapt himself to the rules of Al Shabaab .

On 4 June 2012 the Minister rejected his application. The applicant had failed to submit any newly eme rged facts and/or circumstances warranting a revision of the initial negative decision.

The applicant appeal ed this decision. The proceedings on this appeal are currently still pending before the Regional Court of The Hague.

On 12 June 2012 the applicant requested the European Court of Human Rights to issue an interim measure under the terms of Rule 39 of the Rules of Court.

On 19 June 2012 the Court, under Rule 39 of the Rules of Court, indicated to the Netherlands Government that the applicant should not be expelled to Somalia pending the proceedings before the Court.

On 4 December 2012, after having received information of the Netherlands Government that expulsions to Mogadishu and therefore Somalia were not possible due to the genera l security situation in Mogadishu, the Court struck the case out of its list of cases, pursuant to Article 37 § 1 (c) of the Convention (see Mahamed Ahmed v. the Netherlands ( dec. ), no. 70517/11, 4 December 2012) , specifying that :

“the applicant may also, pursuant to Article 37 § 2, seek to have his application to the Court restored should no domestic remedies capable of staying [such] a removal be available to him.”

In the same decision the interim measure under Rule 39 of the Rules of Court was lifted.

On 14 December 2013 the Deputy Minister for Security and Justice ( Staatssecretaris voor Veiligheid en Justitie ) informed the House of Representatives ( Tweede Kamer ) that the Netherlands Government had changed their policy regarding Mogadishu , Somalia . According to the Government , Article 15c of the EU Qualification Directive wa s no longer applicable as the security situation had changed for the better. As a result, expulsions to Somalia could be resumed .

By letter of 28 February 2013, the applicant informed the Court that he had been assigned to a location with restrictions on his freedom of movement. In the same letter the applicant requested the Court to restore his application to its list of cases, pursuant to Article 37 § 2 of the Convention. The applicant further requested the Court to issue an interim measure under the terms of Rule 39 of the Rules of Court.

On 6 March 2013, the President of the Section indicated to the Netherlands Government that the applicant should not be expelled to Somalia until further notice.

On 12 March 2013, the Court, pursuant to Article 37 § 2 of the Convention decided to restore the application to its list of cases. The Court furt hermore, decided to prolong for the duration of the proceedings before the Court the interim measure indicated under Rule 39 of the Rules of Court.

COMPLAINT

The applicant complained under Article 3 of the Convention that he, if expelled to Somalia , will be exposed to a real risk of treatment prohibited by this provision.

QUESTION TO THE PARTIES

In the light of the applicant ’ s claims and the documents submitted, would he face a risk of being subjected to treatment in breach of Article 3 of the Convention if he were to be expelled to Somalia ?