THIRD SECTION

Application no . 29841/10 Umar RAGE against the Netherlands lodged on 27 May 2010

STATEMENT OF FACTS

The applicant, Mr. Umar Rage , states to be a citizen of Somalia , born in 19 83 . He is currently stay ing in the Netherlands . He is represent ed before the Court by Mr. J.M. Walls , a lawyer practising in Prinsenbeek .

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

The applicant claims that on 8 October 2003 he entered the Netherlands . He did not apply for asylum at that time, but on 17 October 2003 his fingerprints were taken. Allegedly, the applicant left the Netherlands for Germany . On 11 January 2004 Germany requested the Netherlands to take back the applicant pursuant to the Dublin II regulation.

T he applicant applied for asylum in the Netherlands on 17 March 2005 and submitted the following . The applicant belongs to the Midgan clan. His father had married a woman of the Hawiye clan. As her family had opposed this ma rriage , they had killed the applicant ’ s father in 1991. His mother had pleaded with her brothers not to kill her children as well. After his father had been killed, the family had left Mogadishu for Somaliland and later Djibouti , where they had stayed in refugee camps from 1992 until 1996. After Djibouti the applicant had lived in Ethiopia for two years and Sudan for five years before travelling to Europe .

On 17 March 2005 the applicant was interviewed about his identity, nationality and travel route ( eerste gehoor ).

On 22 March 2005 the applicant was again interviewed about his identity, nationality and travel route ( aanvullend eerste gehoor inzake herkomstbepaling ).

On 23 March 2005 the applicant was interviewed about his asylum motives ( nader gehoor ).

By letter of 23 March 2005 the Minister for Immigration and Integration ( Minister voor Vreemdelingenzaken en Integratie ; “the Minister”) notified the applicant of her intention ( voornemen ) to reject his asylum application. It was considered that the applicant had failed to submit any documents concerning his nationality, identity and travel route, and that this failure was attributable to him. It was further held that the applicant had failed to demonstrate that he hailed from Mogadishu . He had been unable to give any details about his hometown. As the applicant ’ s asylum account was based on hailing from South/Central Somalia , his asylum account was disbelieved.

In his written comments to the intention ( zienswijze ) of 24 March 2005, the applicant maintained his account. He claimed that he had left Mogadishu at the age of 9. It could, therefore, not be expected that 13 years later he would be able to reproduce all details of t his town. He further submitted that he spoke Somali and that, if the Minister continued to doubt his origins, a language analysis should be conducted.

On 24 March 2005, the Minister re jected the applicant ’ s asylum application, finding that he had failed to dispel the doubts about his account. The Minister considered that the applicant, when he had applied for asylum in Germany had claimed that he had been born in 1977 and thus would have been 15 years old when he and his family had left Mogadishu. The Minister found that the applicant had failed to establish that he had been born in 1983.

On the same date t he applicant filed an appeal with the Regional Court ( rechtbank ) of The Hague . On 5 April 2009 he filed his grounds for appeal.

On 6 April 2005 the Minister withdrew the decision. On 7 April 2005 the applicant withdrew his appeal.

On 8 June 2005 a further interview was held with the applicant about his asylum motives.

On 26 August 2005 the applicant was interviewed for the purpose of a language analysis. According to the report on this analysis drawn up on 27 February 2006 , the applicant did not hail from Southern Somalia but from Northern-Somalia or Djibouti .

By letter of 22 February 2006 the Minister notified the applicant of her intention to reject his asylum application as the language analysis indicated that the applicant did not hail from Southern Somalia .

In his written comments to the intention of 27 March 2007 the applicant maintained that he hailed from Southern Somalia . He claimed that the language analysis had not been conducted properly.

On 3 1 March 2006 the Minister again rejected the applicant ’ s asylum application. The Minister noted that, a ccording to a language analysis , the applicant hailed from Northern-Somalia instead of South/Central Somalia . As the applicant ’ s asylum account was based on him hailing from South/Central Somalia , no credence could be attached to his asylum account.

On 24 April 2006 the applicant filed an appeal with the Regional Court of The Hague. On 24 May 2006 he filed his grounds for appeal. The applicant held that the quality of the tape used for the language analysis was very bad. The applicant and interpreter were hardly audible . Therefore, the Minister should have made new recordings to use for the language analysis. He further maintained that he hailed from Mogadishu .

On 2 July 2007 the Regional Court of The Hague dismissed the applicant ’ s appeal. The court upheld the impugned decision.

On 1 August 2007 the applicant filed a further appeal to the Administrative Jurisdiction Division of the Council of State ( Afdeling bestuursrechtspraak van de Raad van State ; “the Division”). He also requested a provisional measure to stop his expulsion. He claimed that a new language analysis should have been conducted as the quality of the tape was too bad to use. He further claimed that due to the bad quality of the recordings, he had been unable to conduct a counter language analysis.

By decision of 7 August 2007 the Division refused the provisional measure.

By decision of 14 September 2007 the Division dismissed the applicant ’ s appeal.

On 24 December 2009 the applicant lodged a second asylum request. With this request he submitted a birth certificate which showed that he was born in Mogadishu .

On that same date the applicant was interviewed about newly emerged facts and/or circumstances ( gehoor inzake nieuwe feiten en omstandigheden ).

By letter of 29 December 2009 the Deputy Minister of Justice ( Staatssecretaris van Justitie ; “Deputy Minister”) notified the applicant of her intention to reject his asylum application. It was considered that the applicant had failed to establish newly emerged facts and/or circumstances that warranted the revision of the initial negative decision (“ nova ”) , as required by provision 4:6 of the General Administrative Law Act ( Algemene wet bestuursrecht ). The applicant could and should have submitted his birth certificate in his first asylum proceedings. Furthermore, it was considered that according to findings of the Netherlands Royal Constabulary ( Koninklijke Marechaussee ) it was impossible to verify the authenticity of the document.

In his written comments to the intention of 30 December 2009 the applicant claimed that the general security situation in Somalia warranted the issuing of an asylum permit.

By decision of 31 December 2009 the Minister rejected the applicant ’ s second asylum applica tion as he had failed to submit nova . The applicant could and should have submitted this document in his earlier asylum proceedings. Furthermore, the Deputy Minister considered that even if the applicant could not have submitted the document at an earlier stage, the document could not be used as it was impossible to verify the authenticity of the document.

On the same date the applicant filed an appeal to the Regional Court of The Hague. On 9 January 2010 he submitted his grounds of appeal. He claimed that the general security situation in Somalia constituted a real risk of a treatment contrary to Article 3 of the Convention. He further claimed that he did not have an effective remedy as the Deputy Minister had failed to conduct a rigorous scrutiny of his second asylum application.

On 22 January 2010 the Regional Court of The Hague sitting in Arnhem dismissed his appeal. The court held that the applicant had failed to establish his origins.

On 27 January 2010 the applicant filed a further appeal to the Division. He claimed that the Deputy Minister should have assessed whether upon return in Somalia he had a real and personal risk of a violation of Article 3 of the Convention.

On 11 February 2010 the Division dismissed the applicant ’ s appeal on summary grounds.

On 3 February 2013 the applicant was placed in aliens ’ detention with a view to expulsion to Mogadishu .

On xx February 2013 , the Court, under Rule 39 of the Rules of Court, indicated to the Netherland s Government that the applicant should not be expelled to Somalia pending the proceedings before the Court.

COMPLAINT S

The applicant complain s under Article 3 of the Convention that there are substantial grounds for believing that he will be subjected to treatment p rohibited by that provision if he were expelled to Somalia .

The applicant further complains under Article 13 that he did not have an effective remedy in Dutch national law in terms of his complaint under Article 3 of the Convention.

QUESTIONS TO THE PARTIES

1. In the light of the applicant ’ s claims and the documents which have been submitted, would he face a risk of being subjected to treatment in breach of Article 3 of the Convention if he is expelled?

2. Did the applicant have at his disposal an effective domestic remedy for his complaints under Article 3, as required by Article 13 of the Convention?

3. Given the fact that your Governmen t attach no credence to the applicant ’ s claims that he hails from Mogadishu, why will he be expelled to Mogadishu? Have your Government taken into account the security situation in Mogadishu? In this respect, has the applicant ’ s ethnicity been taken into account?