European Court of Human Rights

THIRD SECTION

DECISION

Application no. 38940/06
by Hanad ABSHIR MOHAMED
against the Netherlands

The European Court of Human Rights (Third Section), sitting on 23 September 2008 as a Chamber composed of:

Josep Casadevall, President,
Corneliu Bîrsan,
Boštjan M. Zupančič,
Egbert Myjer,
Ineta Ziemele,
Luis López Guerra,
Ann Power, judges,
and Santiago Quesada, Section Registrar,

Having regard to the above application lodged on 29 September 2006,

Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court,

Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Hanad Abshir Mohamed, is a Somali national who was born in 1970 and lives in the Netherlands. He was represented before the Court by Ms J. de Jong, a lawyer practising in Rotterdam. The Dutch Government (“the Government”) were represented by their Agent, Mr R.A.A. Böcker, and Deputy Agent, Ms L. Egmond, of the Ministry of Foreign Affairs.

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

On 8 March 1996 the applicant applied for asylum in the Netherlands, submitting that because he and his family belonged to the minority Ashraf population group, their life in southern Somalia had been made unbearable by militia and/or bandits belonging to the clan in control of the area. In the course of a robbery of his father's grocery shop, the applicant had been beaten and one of his brothers had been shot and killed. The family moved to the country side, but in 1996 their house had been burgled by a gang of men and ten of their cows had been taken.

The asylum application was denied, and so were the three asylum applications which the applicant subsequently lodged. His appeal against the refusal of his fourth asylum application was declared inadmissible by the Regional Court (rechtbank) of The Hague, sitting in Amsterdam, on 10 August 2006 for the reason that an exclusion order had in the meantime been imposed on the applicant, which entailed that, for as long as it was in place, the applicant would not be able to reside lawfully in the Netherlands.

The Court has not been informed of the outcome of the proceedings instituted by the applicant against the exclusion order, which order was imposed on 15 August 2005 following a number of convictions of criminal offences.

During his stay in the Netherlands, the applicant had two children (born in 2001 and 2002). Although the relationship with the children's mother broke down, the applicant sees his children – who have Dutch nationality –regularly.

In a letter of 5 June 2008 the Government informed the Court that the exclusion order had been lifted on 19 October 2007 in view of Articles 3 and 8 of the Convention. Moreover, the applicant had been granted a residence permit on 25 March 2008 which was valid until November 2012.

COMPLAINTS

The applicant complained under Article 3 of the Convention that his expulsion to Somalia would expose him to a real risk of torture or inhuman or degrading treatment. Invoking Article 8 of the Convention, he further submitted that the respondent State were under a positive obligation to allow him to reside in the Netherlands as it was not possible to enjoy family life with his daughters anywhere else.

THE LAW

On 21 July 2008 the applicant's representative informed the Court that the applicant wanted to withdraw the application in view of the developments as set out in the Government's letter of 5 June 2008.

In these circumstances, and having regard to Article 37 § 1 (a) and (b) of the Convention and to the fact that it has already set out the relevant principles concerning a possible expulsion of a member of a minority group to the so-called “relatively safe” areas of Somalia from whence he or she did not originate in its judgment in the case of Salah Sheekh v. the Netherlands (no. 1948/04, 11 January 2007), the Court is of the opinion that it is no longer justified to continue the examination of the application. Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case. In view of the above, it is appropriate to discontinue the application of Rule 39 of the Rules of Court and to strike the case out of the list.

For these reasons, the Court unanimously

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

Santiago Quesada Josep Casadevall
Registrar President