European Court of Human Rights

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URL: http://www.bailii.org/eu/cases/ECHR/2011/2176.html
Cite as: [2011] ECHR 2176

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THIRD SECTION

DECISION

Application no. 30880/10
Mohammed IBRAHIM HAYD
against the Netherlands

The European Court of Human Rights (Third Section), sitting on 29 November 2011 as a Chamber composed of:

Josep Casadevall, President,
Corneliu Bîrsan,
Egbert Myjer,
Ján Šikuta,
Ineta Ziemele,
Nona Tsotsoria,
Kristina Pardalos, judges,
and Santiago Quesada, Section Registrar,

Having regard to the above application lodged on 2 June 2010,

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

Having regard to the information submitted by the respondent Government and the applicant’s representative,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Mohammed Ibrahim Hayd, is a Somali national who was born in 1982 and, at the time of the introduction of the application, was staying in the Netherlands. He was represented before the Court by Mr J.J. Wedemeijer, a lawyer practising in Alkmaar. The Dutch Government (“the Government”) were represented by their Agent, Mr R.A.A. Böcker, of the Ministry of Foreign Affairs.

The applicant complained under Articles 2, 3, 8 and 13 of the Convention about the refusal of his request for asylum and his threatened forced return to Somalia.

3. On 10 June 2010 the President of the Section decided to indicate to the Government of the Netherlands that it was desirable in the interests of the parties and the proper conduct of the proceedings before the Court not to expel the applicant to Somalia for the duration of the proceedings before the Court (Rule 39 of the Rules of Court). The President further decided to request the Government to submit certain factual information (Rule 54 § 2 (a)). On 28 September 2010 the information received from the Government was forwarded to the applicant and at the same time the judge appointed as rapporteur under Rule 49 § 2 put a number of factual questions to him. The applicant’s replies were received on 11 October 2010.

4. In a letter of 7 September 2011 the Government informed the Court that it had come to their attention that when the applicant’s request for an interim measure was granted, he was no longer in the Netherlands and had travelled to Germany. The German authorities had recently informed the Government that the applicant had left and his whereabouts were now unknown.

5. Invited to submit comments on the information provided by the Government within three weeks, the applicant’s representative submitted on 12 October 2011 that his client had been staying with a cousin of his in The Hague at the time the application was introduced. The representative had not received any information from his client that the latter had in fact been staying in Germany at that time. Attempts to contact the applicant had failed; the mobile telephone belonging to the number indicated on the application form had been answered by the applicant’s cousin who had told the representative that the applicant was not staying with him at the present time but that he would try to contact him. According to the representative, the fact that the applicant may be travelling through Europe or may be applying for asylum elsewhere in Europe was not relevant, since such applications would not stand any chance of success and he would be returned to the Netherlands pursuant to Regulation no. 343/2003/EC (the Dublin Regulation). In the opinion of the representative, the fact that the applicant could not be found at the present time did in no way mean that he no longer wished to pursue his case; it rather suggested that the applicant was having serious difficulties. Having regard to the real risk of being subjected to treatment in breach of Article 3 which risk the applicant would run if he were expelled to Somalia, the representative argued that it would be wrong to strike the case out. Instead, he requested that he be granted a period of two months in order to trace the applicant and to ask him what had been going on.

6. On 26 October 2011 the parties were informed that the representative’s request for an extension of the time-limit fixed for the submission of the applicant’s comments on the factual accuracy of the information submitted by the Government had been refused.

THE LAW

The Court notes that the applicant’s representative is not currently in touch with his client and that the latter’s whereabouts are unknown, not only by the representative and the Dutch authorities but also by the applicant’s cousin with whom the applicant is said to have stayed in the past. In fact, it appears far from certain that the applicant is even in the Netherlands.

The Court has previously held that in a situation where it was impossible to establish any communication with an applicant, that applicant’s representative was not able meaningfully to pursue the proceedings before the Court (see Ramzy v. the Netherlands (striking out), no. 25424/05, § 64, 20 July 2010 and Ali v. Switzerland, 5 August 1998, § 32, Reports of Judgments and Decisions 1998-V). In such cases, the Court concluded that it was no longer justified to continue the examination of the applications at issue since the applicant could be regarded as no longer wishing to pursue his or her claims.

The Court is further of the view that where, as in the present case, it has issued an interim measure under Rule 39 to the effect that the respondent State is precluded from proceeding with an expulsion, there is even less reason to accept that an applicant – who, for the time being at least, is no longer faced with the threat of such expulsion – fails to ensure that his representative in those proceedings is able to contact him without difficulty.

In the circumstances of the present case, the Court is therefore of the opinion that the applicant’s failure to keep his representative informed of his whereabouts or at least to provide him with a means to contact him must be taken as indicating that he has lost interest in pursuing his application. Furthermore, although it is true that the applicant did authorise Mr Wedemeijer to represent him in the proceedings before the Court, it considers that this authority does not by itself justify pursuing the examination of the case. Given the impossibility of establishing any communication with the applicant, the Court considers that his representative cannot now meaningfully pursue the proceedings before it.

In these circumstances, and having regard to Article 37 § 1 (a) of the Convention, 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.

Accordingly, it is appropriate to lift the interim measure indicated under 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