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Cite as: [2010] ECHR 1945

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THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 44719/06
by Ibrahim JOESOEBOV
against the Netherlands

The European Court of Human Rights (Third Section), sitting on 2 November 2010 as a Chamber composed of:

Josep Casadevall, President,
Elisabet Fura,
Corneliu Bîrsan,
Alvina Gyulumyan,
Egbert Myjer,
Ineta Ziemele,
Ann Power, judges,
and Santiago Quesada, Section Registrar,

Having regard to the above application lodged on 9 November 2006,

Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court and the fact that this interim measure has been complied with,

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

Having regard to the comments submitted by the Government of the Republic of Azerbaijan,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Ibrahim Joesoebov, was born in Georgia in 1972 and is currently living in the Netherlands. At the time of the introduction of the application he stated that he was an Azerbaijani national. He was represented before the Court by Mr M.A. Collet, a lawyer practising in Rotterdam. The Dutch Government (“the Government”) were represented by their Deputy Agent, Ms L. Egmond, of the Netherlands Ministry of Foreign Affairs.

A. The circumstances of the case

2. The facts of the case, as submitted by the parties and some of which are in dispute, may be summarised as follows.

3. On 17 June 2000, the applicant reported to the Netherlands authorities for the purposes of seeking asylum. During his interviews with the Netherlands immigration authorities in the course of which he objected to assistance by an Azeri-speaking interpreter and chose to be assisted by a Russian speaking interpreter, he stated that he was an Azerbaijani national, that he was born in Georgia – then a part of the former Soviet Union – and that he was of Azerbaijani ethnic origin. The applicant’s parents and three adult siblings, who were all born in Georgia, were living in Baku.

4. On 5 July 2000, the applicant filed a formal asylum request and the immigration authorities conducted a first interview with him on the same day. On 21 August 2000 the applicant filed a written account of his reasons for seeking asylum. He submitted an addition to this written account on 6 October 2000. The immigration authorities conducted a second interview with the applicant on 11 October 2000. By letter of 24 October 2000, the applicant availed himself of the possibility to submit corrections and additions to the report of this second interview.

5. The applicant gave the following account in support of his asylum application. He had lived in Georgia until 1989 and in Russia from 1989 until April 1993. He had received military training from 1990 to 1993 in Russia. In May 1993, following the upheaval in Russia, the applicant went to live in Baku, where he served in the Ministry of National Security of the Republic of Azerbaijan in an anti-terrorism unit, which also specialised in combating organised crime. The applicant participated in a number of operations.

6. In June 1993 the applicant was involved in an incident in the context of a professional assignment which resulted in him being imprisoned. He was released after two weeks following a changeover in power.

7. The applicant resumed his work for the Ministry of National Security, in which he was, amongst other things, involved in arresting people and handing these over to the Ministry’s investigation department, and in an undercover anti-corruption operation. He left the Ministry in October 1999.

8. Over the years, the applicant had become increasingly disillusioned and frustrated with the political system and the way the department where he worked was being used to suppress democracy. That department was supposed to battle terrorism and foreign interventions, but in practice it was used to arrest innocent civilians who stood in the way of a corrupt Government. He twice tried to resign but this was not accepted. In May 1999 his boss told him people could only leave the service if they retired or died. After this, his life became unbearable. His colleagues no longer trusted him. He had never held his own passport. The Ministry of National Security had held – but never given to him – a service passport for him which had been used by others on his behalf during a short stay in Turkey in 1994. He was very scared as there was nothing more powerful than the Ministry of National Security so he could turn to no-one for protection. He feared the Ministry was looking for a reason to accuse him of something.

9. The applicant left Azerbaijan on 6 October 1999, because on that day he was informed by a friend employed by the Ministry of Foreign Affairs that he was wanted in connection with a failed attack on a rebel leader in 1993. The applicant claimed that he was being searched for by the authorities of Azerbaijan and also that he risked a lengthy term of imprisonment because he had left the Ministry of National Security and Azerbaijan without permission and was thus considered to be a deserter.

10. On 29 November 2000, the Deputy Minister of Justice (Staatssecretaris van Justitie) rejected the applicant’s asylum request and, after an ex officio examination, further held that there were no reasons to grant the applicant a residence permit for compelling reasons of a humanitarian nature.

11. On 30 January 2001 the applicant lodged an objection (bezwaar) against this decision. He filed additional grounds for his objection and further documents in substantiation of his account by letters 9 and 28 February 2001, 20 March 2001, 3 and 11 April 2001, 17 May 2001, 20 July 2001 and 19 April 2002.

12. On 23 April 2001, the applicant requested the Regional Court (rechtbank) of The Hague to order a stay of expulsion by way of a provisional measure (voorlopige voorziening) pending the proceedings on his objection. This request was granted on 29 May 2002 by the provisional measures judge (voorzieningenrechter) of the Regional Court of The Hague, sitting in Utrecht, who ordered that the applicant should not be expelled from the Netherlands until four weeks after the determination of his objection.

13. By letter of 26 June 2002 the applicant filed further additional grounds for his objection. On 25 November 2002, he was heard on his objection before an official board of inquiry (ambtelijke commissie).

14. On 2 December 2002 the Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie), the successor to the Deputy Minister of Justice since 22 July 2002, informed the applicant that his statements gave cause to suspect that Article 1F of the 1951 Geneva Convention relating to the Status of Refugees (“the 1951 Convention”) might be applicable to his case, and that for that reasons his case had been transferred to “Unit 1F”. Unit 1F is a team of specialists within the Immigration and Naturalisation Service (Immigratie- en Naturalisatiedienst, “IND”) who examine cases in which Article 1F of the Refugee Convention may be applicable.

15. By letter of 4 December 2002, the applicant informed the IND that he considered the decision of 2 December 2002 as unlawful and unjust, and urged a speedy determination of his asylum claim.

16. On 13 January 2003 the applicant submitted translations of a number of documents further to substantiate his account. On 5 June 2003 the immigration authorities conducted an additional interview with the applicant which mainly concerned the nature of his work for the Azerbaijani Ministry of National Security, and he was given the possibility to submit corrections and additions to the report of this interview. By letter of 23 June 2003 the applicant stated he did not wish to do so.

17. On 19 September 2003 the Minister for Immigration and Integration rejected the applicant’s objection and maintained the negative decision of the asylum request by holding Article 1F of the 1951 Convention against the applicant on account of his work for the Azerbaijani Ministry of National Security, which decision was based on the prescribed and so-called “personal and knowing participation” test. In this decision, the Minister further decided not to grant the applicant ex officio a residence title on account of the duration of the still pending proceedings on his asylum request (tijdsverloop in de asielprocedure). The applicant’s objection against the latter aspect of the decision of 19 September 2003 was rejected by the Minister on 18 March 2004. On 23 March 2004 the applicant filed an appeal with the Regional Court of The Hague.

18. The applicant’s appeal against the decision of 19 September 2003 (concerning his asylum request), as supplemented by him on 12 and 21 November 2003, 17 February 2004, 3 and 30 March 2004 and 17 and 27 September 2004, was heard on 8 October 2004 before the Regional Court of The Hague, sitting in Arnhem.

19. In its judgment of 10 November 2004, the Regional Court found that the Minister had correctly held Article 1F of the 1951 Convention applicable to the applicant but quashed the impugned decision for lack of sufficient reasoning in that it did not appear from that decision whether the Minister had examined whether Article 3 of the Convention would lastingly (duurzaam) stand in the way of expulsion and, if so, whether a continuous withholding of a residence permit would not be disproportionate. Accordingly it quashed the decision of 19 September 2003 and ordered the Minister to take a fresh decision on the applicant’s objection.

20. On the same day, the Regional Court rejected in a separate judgment the applicant’s appeal of 23 March 2004.

21. On 14 September 2005, an additional hearing on his objection of 30 January 2001 was conducted with the applicant before an official board of inquiry, including the question whether his expulsion to Azerbaijan would be contrary to Article 3 of the Convention.

22. On 13 February 2006 the applicant was notified in person of the Minister’s intention to declare him an undesirable alien entailing the imposition of an exclusion order, and he was given the opportunity to respond to this. He did so in person on 13 February 2006, as well as by letters of 13 and 24 February 2006.

23. By decision of 10 March 2006, the Minister declared the applicant an undesirable alien and imposed the pertaining exclusion order. The Minister noted that the applicant had been denied asylum in application of Article 1F of the 1951 Convention and that, in its judgment of 10 November 2004, the Regional Court of The Hague had accepted that decision as correct. The Minister held that the application of Article 1F of the Refugee Convention against the applicant stood in the way of his being granted a residence permit since he was to be considered as a danger to public order and that his exclusion from the Netherlands was also in the interest of the Netherlands’ international relations. The Minister lastly found that there were insufficient grounds for assuming that the applicant, if removed to his country of origin, would be exposed to a real and foreseeable risk of being subjected to treatment prohibited by Article 3 of the Convention.

24. In a separate decision also taken on 10 March 2006, the Minister rejected the applicant’s objection of 30 January 2001. She maintained her decision to hold Article 1F of the 1951 Convention against the applicant. As regards Article 3 of the Convention, the Minister did not find it established that the applicant, if returned to his country of origin, would be exposed to a real risk of being subjected to treatment prohibited by the this provision.

25. The Minister noted that the applicant had not submitted any documents in support of his claim that he was searched for by the Azerbaijani authorities for having abandoned his work for the national security agency in 1999. The Minister further noted that the applicant had submitted two documents, issued by the authorities of Azerbaijan, allegedly showing that he was being searched for in Azerbaijan. One document was a protocol, drawn up by the police on 1 May 2002, relating to the opening of a criminal inquiry into the commission of the offence defined in section 256 of the Azerbaijani Criminal Code which concerns “illegal extraction of fish and other water animals”. The other document was a summons dated 29 August 2002, ordering the applicant to hand in on that same day his passport at police station no. 5, failing which he would be held liable under section 181 of the Azerbaijani Criminal Code which concerns “burglary” defined as obtaining through violence property not belonging to the perpetrator. The Minister considered that, apart from the odd and unexplained fact that both documents had been drawn up in 2002 whereas the applicant had already left Azerbaijan in 1999, these documents did not tally with the applicant’s asylum account to the effect that he risked treatment in breach of Article 3 on account of having left his work without permission or for his involvement in the failed attack on the rebel leader in 1993. In so far as the applicant further claimed that he risked such treatment because the Azerbaijani authorities assumed that he was keeping contacts with two of his former superiors who were residing abroad and who were planning to seize power in Azerbaijan, the Minister found that this had remained wholly unsubstantiated and was based on speculations by the applicant. The Minister further rejected as unsubstantiated and not plausible the applicant’s claim that his relatives were encountering problems from the side of the authorities of Azerbaijan in order to exert pressure on the applicant.

26. On 23 March 2006, the applicant filed an objection with the Minister against the decision to impose an exclusion order on him. On the same day, he filed an appeal with the Regional Court of The Hague against the rejection by the Minister of his objection of 30 January 2001.

27. By judgment of 16 May 2006 and after a hearing held on 4 May 2006, the provisional measures judge of the Regional Court of The Hague, sitting in Dordrecht, rejected as unfounded the applicant’s appeal of 23 March 2006 and his pertaining request for an interim measure. The judge noted that, in its ruling of 10 November 2004, the Regional Court had already accepted the Minister’s decision to hold Article 1F of the 1951 Convention against the applicant. The provisional measure judge further accepted the Minister’s finding that the applicant had not demonstrated that Article 3 would lastingly stand in the way of his expulsion. Referring to constant case law of the Administrative Jurisdiction Division of the Council of State (Afdeling bestuursrechtspraak van de Raad van State), the provisional measures judge lastly held, in respect of the applicant’s reliance on the right of respect for his private life within the meaning of Article 8 of the Convention, that – given the strict separation under the provisions of the Aliens Act 2000 (Vreemdelingenwet 2000) between an asylum based and a regular residence permit – that arguments based on Article 8 could not be entertained in asylum proceedings but should be made in proceedings on a request for a regular residence permit.

28. In a separate ruling handed down on the same day, the provisional measures judge of the Regional Court also rejected the applicant’s request for a provisional measure (stay of expulsion) for the duration of the proceedings on his objection against the decision to impose an exclusion order on him.

29. On 13 June 2006, the applicant filed an appeal with the Administrative Jurisdiction Division against the judgment of 16 May 2006 in which his appeal of 23 March 2006 had been rejected. On 30 June 2006, the Administrative Jurisdiction Division declared itself not competent to examine this appeal, pursuant to article 120 of the Aliens Act 2000. It noted that the proceedings concerned a decision which had been taken before the entry into force on 1 April 2001 of the Aliens Act 2000, replacing the Aliens Act 1965. Under the latter Act no further appeal lay against a ruling of the Regional Court in asylum proceedings.

30. On 14 April 2008, the applicant was placed in aliens’ detention for removal purposes (vreemdelingenbewaring). In a ruling given on 6 May 2008, in unsuccessful appeal proceedings taken by the applicant concerning his placement in aliens’ detention, the Regional Court of The Hague noted that the Azerbaijani authorities had refused to issue a laissez-passer to the applicant and held that the Netherlands authorities should be given the opportunity to try to obtain the issuance of a laissez-passer from the authorities of Georgia, given the fact that the applicant had been born there.

31. On 27 October 2008, the Minister rejected the applicant’s objection against the decision to impose an exclusion order on him. The applicant’s appeal against this decision, including arguments based on Article 3 of the Convention, was rejected on 4 August 2009 by the Regional Court of The Hague, sitting in Dordrecht. Although the applicant could have appealed this decision before the Administrative Jurisdiction Division, he did not do so.

B. Relevant international law

32. Article 1F of the 1951 Geneva Convention Relating to the Status of Refugees, as amended by the New York Protocol of 31 January 1967 provides as follows:

“The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

C. Proceedings before the Court

33. The application was introduced on 9 November 2006 and registered on 21 December 2006.

34. On 23 June 2008, at the applicant’s request, the President of the Third Section decided under Rule 39 of the Rules of Court to indicate to the Netherlands Government not to expel the applicant pending the proceedings before the Court. The President further decided, under Rule 54 § 2 (b) of the Rules of Court, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.

35. On the basis of the applicant’s stated nationality, the Government of Azerbaijan were invited, pursuant to Article 36 § 1 of the Convention, to inform the Court whether they wished to exercise their right to submit written comments. On 10 September 2008, the Azerbaijani Government informed the Court that they wished to avail themselves of that right. The applicant and the respondent Government were informed accordingly.

36. On 23 September 2008, the respondent Government informed the Court of the proceedings still pending on the applicant’s challenge of the decision to impose an exclusion order on him, and requested leave to submit their observations after a final decision in these proceedings had been given. On 2 October 2008, the President accepted this request and fixed a new time-limit for the submission of the observations by the Netherlands Government, namely within six weeks after the final decision in the proceedings referred to by the Government.

37. On 25 September 2009, the Netherlands Government requested a further extension until 24 November 2009 of the time-limit to file observations. They explained that, as the applicant had not availed himself of the possibility to file an appeal with the Administrative Jurisdiction Division against the ruling of 4 August 2009 of the Regional Court of The Hague, sitting in Dordrecht, the latter judgment had become final on 1 September 2009 implying that the Government should file their observations within six weeks from that date. On 13 October 2009, the President acceded to this request.

38. The Government’s observations were submitted 24 November 2009. The applicant’s observations in reply were submitted on 14 January 2010. In those observations in reply, the applicant denied that he was a citizen of Azerbaijan and claimed that he was stateless.

39. On 2 February 2010, the President invited the Government of Azerbaijan to inform the Court whether or not the applicant was a national of Azerbaijan and, provided they would acknowledge that citizenship, to file any written comments they wished to make on the issues arising in the case.

40. On 2 March 2010, the Government of Azerbaijan informed the Court that the applicant was not a national of the Republic of Azerbaijan but nevertheless submitted written comments.

41. On 26 March 2010, the Azerbaijani Government were informed that, as the applicant was not a citizen of Azerbaijan, they were not automatically entitled to intervene as a third party in the proceedings on the basis of Article 36 § 1 of the Convention but, given that their comments were mainly of a factual nature, that the President had interpreted their letter of 2 March 2010 as a request for leave to intervene within the meaning of Article 36 § 2 of the Convention and had granted this request.

42. On the same date, the respondent Government, the applicant and the Government of Azerbaijan were invited to submit further information of a factual nature, and the President further accepted the respondent Government’s request for leave to submit additional observations.

43. On 27 April 2010, the Azerbaijani Government submitted the requested factual information. The respondent Government and the applicant filed additional submissions on 7 May 2010.

COMPLAINTS

44. The applicant complained that his expulsion to Azerbaijan would be contrary to his rights under Articles 3 in that it would expose him to a real and personal risk of being subjected to treatment prohibited by this provision on account of his work for the Special Operations Division of the Ministry of National Security of the Republic of Azerbaijan and for having deserted his post.

45. He further complained that the refusal to grant him a residence title in the Netherlands and consequent removal from that country were contrary to his rights guaranteed by Article 8 of the Convention on account of his lengthy stay in the Netherlands since his arrival. He lastly complained that he did not have an effective remedy within the meaning of Article 13 of the Convention in respect of his Article 8 grievance in that it was impossible to have this complaint examined and determined in the proceedings on his asylum request.

THE LAW

46. The applicant complained that his expulsion to Azerbaijan will expose him to a real risk of being subjected to treatment proscribed by Article 3 of the Convention, which provides as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A. The parties’ submissions

The respondent Government

47. The respondent Government noted that the information provided by the Azerbaijani Government about the applicant’s citizenship did not correspond with the information given by him in the domestic proceedings and the same applied in respect of the applicant’s other statements, specifically on his activities for the Azerbaijani security service.

48. The Government considered that the applicant’s fear that he would be subjected to treatment in breach of Article 3 of the Convention in Azerbaijan had remained unsubstantiated. The two documents submitted by him, i.e. the police protocol of 1 May 2002 and the summons of 29 August 2002, did not relate to the facts on which his asylum claim was based. Moreover, as their lay-out and redaction did not correspond to the standards used by the Azerbaijani authorities at the material time and as the statutory provision referred to in the summons concerned legislation in force when Azerbaijan was still a republic within the USSR, the Government had serious doubts about the sincerity of this part of the applicant’s account.

49. In addition, the Azerbaijani authorities had refused in 2008 to issue a laissez-passer to the applicant which would have made it possible to expel him to Azerbaijan. The respondent Government did not believe that the Azerbaijani authorities would have refused the applicant a laissez-passer if they had been intending to prosecute him. In any event, given the time that had elapsed since the applicant had left Azerbaijan, any confidential information he had had would be – at least partly – out of date and the Azerbaijani authorities would, accordingly, probably attach less importance to the protection of such information than they might to current State secrets.

50. Even assuming that the applicant would be criminally prosecuted in Azerbaijan, it had to be taken into account that Azerbaijan was a High Contracting Party to the Convention having undertaken to abide by its Convention obligations, including those arising from Article 3 and the other Convention provisions relied upon by the applicant.

51. The respondent Government concluded that the applicant had not convincingly demonstrated that he would run a risk of treatment contrary to Article 3 if he were expelled to Azerbaijan or, for that matter, to Georgia or Russia because – as the applicant claimed – those countries would expel him to Azerbaijan.

52. As to the applicant’s effective removal to Azerbaijan, it was assumed at the time of the examination of the applicant’s asylum request that he was an Azerbaijani citizen as there were no reasons to assume that his statement to that effect was untrue. However, now that the rejection of the applicant’s asylum request was irreversible, he had the obligation to leave the Netherlands. Should he now claim that he ought to be granted a temporary residence permit because, through no fault of his own, he was unable to leave the Netherlands, it was up to him to substantiate that claim by demonstrating that he had contacted the representation of his country of origin and the representations of any other country he had resided in previously, i.e. Azerbaijan, Georgia and Russia. As it did not appear that the applicant had made any effort to this end, he had not convincingly demonstrated that no other country, and especially Azerbaijan, Georgia or Russia, was willing to admit him.

53. The Netherlands Government further submitted that, at long as the indication given under Rule 39 of the Rules of Court remained in force, they would not take active steps towards the applicant’s removal from the Netherlands. Should it be possible to remove the applicant, it first needed to be ascertained whether the applicant had obtained a valid travel document. In case he had been unable to obtain one himself, the Government would submit a request to issue a laissez-passer to the representations of Azerbaijan, Georgia and Russia, using for that purpose the documents submitted by the applicant in the Netherlands proceedings.

The applicant

54. The applicant submitted that in May 1993 he had gone from Russia to Baku because in February 1993 he had refused to pledge allegiance to Russia. He had then worked for the Ministry of National Security of the Republic of Azerbaijan for the “spetsnaz” counter-terrorist unit at a time when the entire world was engaged in the fight against terrorism. In those days, the National Front party had ruled Azerbaijan and for them it had been sufficient that he was of Azeri origin. His formally registered address was a military flat in Baku. His internal passport of the former USSR contained a temporary propiska stamp (internal residence registration) provided by the Azerbaijani military authorities. He had assumed that he was a national of Azerbaijan, holding a USSR internal passport, issued by the authorities of Georgia but with an Azerbaijani propiska as he was residing in Azerbaijan. He had tried thrice in 1995 to obtain a discharge from his post at the Ministry of National Security and had used the excuse that his mother was ill, but to no avail.

55. The applicant argued that the Netherlands authorities had unjustly held Article 1F of the 1951 Convention against him. He further submitted that he feared persecution and ill-treatment in Azerbaijan because in all likelihood he had seen and heard too much of what was going on at the summit of power in Azerbaijan. He did confirm that the Azerbaijani authorities had refused to provide him with a laissez-passer but emphasised that the Netherlands authorities were also examining the possibilities of his expulsion to another country, like Georgia where he had been born or Russia. Also in that situation, he would face a high risk of being sent on to Azerbaijan as neither Georgia nor Russia would admit him. He lastly submitted that on 13 April 2010 the Azerbaijani authorities had visited and questioned his family. This questioning had been so severe, that the family, apart from his father, had decided to run away and go into hiding.

B. Submission by the Azerbaijani Government

56. The Government of the Republic of Azerbaijan submitted that the applicant was not a citizen of Azerbaijan and that he had never been provided with an identity card or passport as a national of the Republic of Azerbaijan. They further submitted that, on 14 May 1993, he had been admitted to military service in the rank of warrant officer in the Ministry of National Security of the Republic of Azerbaijan under a five year contract. In November 1995, he had applied for a discharge explaining that his mother needed to undergo surgery, that his father was unemployed and that he, as an elder son, had to take care of his younger siblings. On the basis of this request, the applicant had been discharged in January 1996. The Azerbaijani Government further stated that, between May 1993 and January 1996 and under the provisions of articles 13 and 15 of the Law on Military Service of 3 November 1992, it had been possible for persons not holding Azerbaijani citizenship to be contracted for military service. The Azerbaijani Government lastly submitted that neither the applicant himself nor his relatives were prosecuted for the applicant’s activities or movements.

C. The Court’s assessment

57. It is the Court’s settled case-law that Contracting States have the right, as a matter of well established international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens, and that the right to political asylum is not explicitly protected by either the Convention or its Protocols. However, expulsion by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the individual concerned, if deported, faces a real risk of being subjected to treatment contrary to Article 3 in the receiving country. In such a case, Article 3 implies an obligation not to deport the person in question to that country (see, most recent, Abdolkhani and Karimnia v. Turkey, no. 30471/08, § 72, ECHR 2009 ...).

58. With regard to the material date, the existence of the risk must be assessed primarily with reference to those facts which were known or ought to have been known to the Contracting State at the time of expulsion (see Saadi v. Italy [GC], no. 37201/06, § 133, ECHR 2008 ...; and Muminov v. Russia, no. 42502/06 , § 92, 11 December 2008).

59. The applicant claims that he risks treatment in breach of Article 3 in case of his removal, either directly or via Georgia or Russia, to Azerbaijan. The Court notes that the authorities of Azerbaijan acknowledge that the applicant has worked as a warrant officer in the Ministry of National Security of the Republic of Azerbaijan and state that he had been discharged at his own request. It further notes that the authorities of Azerbaijan have indicated that the applicant is not a citizen of Azerbaijan and that they have refused to provide him with a laissez-passer which would have enabled his return to Azerbaijan. The Court also notes that the applicant’s claim that the Azerbaijani authorities questioned his family on 13 April 2010 has remained unsubstantiated, and that it does not appear that the Azerbaijani authorities have issued a warrant for his arrest on suspicion of facts committed in the context of his work for the Azerbaijani national security agency or for having left his function or Azerbaijan in an unlawful manner. The case file further contains no information about the question whether the authorities of Georgia and Russia, both States – like Azerbaijan – High Contracting Parties to the Convention, have been asked to provide the applicant with travel documents which would allow his expulsion from the Netherlands.

60. Even assuming, noting that he has not filed an appeal with the Administrative Jurisdiction Division against the judgment of 4 August 2009, that the applicant has complied with the requirement of exhaustion of domestic remedies under Article 35 § 1 of the Convention in respect of this part of the application, the Court considers that – as in the current situation there are no prospects for his effective removal from the Netherlands – the applicant cannot claim to be a victim within the meaning of Article 34 of the Convention as regards his complaint that his expulsion to Azerbaijan would violate his rights under Article 3 of the Convention.

61. To the extent that the applicant would also wish to complain that Article 1F of the 1951 Convention has been unjustly held against him in the Netherlands asylum proceedings, the Court considers that this grievance must be rejected for being incompatible ratione materiae as neither Article 3 nor any other provision of the Convention and its Protocols guarantees, as such, a right to asylum under the terms of the 1951 Convention and, pursuant to Article 19 of the Convention, the Court can only examine an alleged violation of the rights and freedoms guaranteed under the Convention and its Protocols.

62. It follows that this part of the application must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

63. The applicant further complained that the refusal to grant him a residence permit and his consequent expulsion from the Netherlands would violate his rights guaranteed by Article 8 of the Convention on account of his lengthy stay in the Netherlands and that, on this point, he did not have an effective remedy within the meaning of Article 13 of the Convention.

Article 8 reads as follows:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Article 13 provides:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

64. Having regard to its above findings in respect of the applicant’s complaint under Article 3 of the Convention and reiterating that neither Article 8 of the Convention nor any other provision of the Convention and its Protocols guarantees, as such, a residence title for aliens, the Court is of the opinion that this part of the application must be rejected for the same reasons as the complaint under Article 3.

65. It follows that also this part of the application must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention. In view of the above findings, it is appropriate to discontinue the application of Rule 39 of the Rules of Court.

For these reasons, the Court by a majority

Declares the application inadmissible.

Santiago Quesada Josep Casadevall
Registrar President