The European Court of Human Rights (First Section), sitting on 29 May 2012 as a Chamber composed of:
Mirjana Lazarova Trajkovska,
Erik Møse, judges,
and Søren Nielsen, Section Registrar,
Having regard to the above application lodged on 4 October 2010,
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:
A. The circumstances of the case
1. Asylum application
2. Rejection by the Directorate of Immigration
4. Rejection by the Immigration Appeals Board
“The Board observes that the [applicant]’s account of how he attracted the attention of the authorities owing to KDPI activities has not been made sufficiently probable to be relied upon. In the asylum interview, the [applicant] informed that his work for the party was discovered by a neighbour from Iran who worked as a guerrilla soldier for the KDPI, but who later gave himself up to the authorities. The Board concurs in the Directorate’s assessment, and finds this very improbable.
It was further argued in the appeal that the Directorate had based its decision on an incorrect premise. It was made clear that the [applicant]’s neighbour from Iran did not work for the KDPI, as the Directorate had assumed, but as a spy for the Iranian authorities. According to information the [applicant] was said to have received from KDPI members, his neighbour had as time went on become afraid of being revealed as a spy for the authorities, and had therefore pulled out. The [applicant] has also submitted that the Iranian regime carries out considerable intelligence activities by infiltrating agents into oppositional political parties.
The Board observes that, in the asylum interview, the [applicant] had been asked several specific questions on precisely this topic, and that he had given a detailed account of the events. The [applicant] had moreover read and signed the transcript of his answers. The [applicant] had also been informed that this was probably the only interview that would be held. In the view of the Board, it therefore seems remarkable and implausible that the [applicant] should present a new explanation of this matter in the appeal. The Board has therefore very little faith in the [applicant]’s testimony on this point.
The Board has noted the declarations of 29 October 2004 from the Kurdish Cultural Association, the letters of support of 14 February 2005 from the Kurdish Democratic Party in Norway and of 8 March 2005 from the East Kurdistan Writers’ Association, the confirmation of 26 April 2005 from the Kurdish Youth Association of Norway and the membership confirmation of 10 March 2006 from the KDPI in Norway, but does not find that it is able to attach decisive importance to these documents. Reference is made to the very general nature of the declarations, and that they do not associate the [applicant] with concrete episodes entailing a well-founded fear of persecution.
The Board has further noted the submissions from NOAS, but does not find that it can attach decisive importance to these either. The Board observes that reference is made to reports of a general nature that do not associate the [applicant] with concrete episodes entailing a well-founded fear of persecution.
The Board therefore does not find sufficient evidence that the [applicant] had aroused the attention of the authorities of his country of origin to such an extent that he foreseeably risked persecution prior to his departure.
The Board finds otherwise reason to doubt that the [applicant] has been active as a member of the party in his country of origin by distributing flyers, etc. Besides referring to the above points, which, in the view of the Board, weaken his general credibility, it is observed that the party, according to the information available to the Board, no longer espouses the goal of an independent Kurdistan in its party program nor does it take part in armed conflict. However, the [applicant] has asserted the opposite in his self-declaration and in a supplementary letter. Nor is there any evidence that the party has been conspicuous in distributing flyers with oppositional content in Kurdish areas of Iran in recent years. Nor in the Board’s view do the [applicant]’s answers and the information in his self-declaration and asylum interview support his statements concerning his activities prior to his departure. His account of his activities appears partly superficial and of little evidential value in itself, cf. otherwise the above. However, this is not decisive, since it cannot regardless be assumed that his alleged activities are known to the Iranian authorities or that it is otherwise foreseeable that the authorities will persecute him.
The Board has taken into consideration that the [applicant] has participated in various political events in Norway, and has noted the various websites where this is said to have been documented, and where pictures of the [applicant] in the company of members of the KDPI have been published. After assessing these websites, the Board does not consider that this will entail any foreseeable danger of persecution on his return. As far as the Board is aware, the Iranian authorities show relatively little interest in the political activities of Iranians in exile, and do not view these as constituting any real threat to the regime. The [applicant] cannot on the basis of the above-mentioned activities be said to appear to be a particularly important dissident or to be particularly at risk of serious reactions as a consequence of these activities.
The Board therefore does not find sufficient evidence that the [applicant] will be of particular interest to the authorities as a consequence of his political involvement while in Norway.
As regards the KDPI background of his brother and other family members, the Board observes that, as far as the Board is aware, the Iranian authorities do not engage in derivative persecution of family members or other relatives of politically active persons.
Making an overall assessment, the Board therefore finds that it has not been shown to be sufficiently probable that the [applicant] would risk persecution on return to his country of origin, and he is not to be deemed a refugee within the meaning of the Immigration Act and the Refugee Convention.”
5. Refusals of requests for reconsideration
6. Renewed expulsion order and refusal of re-entry
7. Application of Rule 39 of the Rules of Court
B. Relevant domestic law and practice
1. Duty to pay court fees
“If a party has applied for free legal aid or for exemption from the payment of court fees under the Free Legal Aid Act of 13 June 1980 No. 35 [rettshjelploven], a respite should be granted until the application has been decided. In this event no security can be required for the payment of the fee.
If a party who has requested a procedural step [rettergangsskritt] has obtained respite in accordance with the foregoing, the court shall grant the measure. In other cases the court may grant a measure if the party who has requested it is unable to pay immediately and it would entail a damage or significant inconvenience for that party if the measure is not taken. If the measure requires payments, an advance payment may be made by the public authorities.
If a measure has been taken with a respite, the court shall fix a time-limit for payment. Until payment has been made or the time-limit has expired, the court shall only take such measures as it deems necessary. If payment is not made within the time-limit, the court gives a ruling in absentia according to Articles 16-9 and 16-10 of the Code of Civil Procedure.”
2. Assistance by legal counsel
“(1) Free legal representation shall be granted without means testing in ... the following instances:
4. to a foreign national in such instances as mentioned in section 92 (3), second sentence, and (4) of the Immigration Act  ....
(2) In such cases as mentioned in section 11(2) nos. 1-5 [not applicable in the instant case], an application for free legal representation may be granted to a person whose income and assets do not exceed certain levels set by the Ministry.
(3) In other cases, free legal representation may be granted exceptionally, provided that the financial conditions pursuant to the second sub-section are fulfilled and that the case affects the claimant especially from an objective point of view. In the assessment, weight should be attached to whether the case has similarities with the litigation areas mentioned in the first and second sub-sections.
(4) In such cases as mentioned in the second and third sub-sections, free legal representation may be granted even if the claimant does not fulfil the financial conditions prescribed in the second sub-section, provided that the expenses for legal assistance will be substantial compared to the claimant’s financial situation.
(5) Free legal representation shall not be granted pursuant to the second through fourth sub-sections where it would be unreasonable that such assistance be paid out of public funds.”
“In immigration cases not covered by section 16 (1) nr 4, the practice should be very restrictive. The general legal security of the foreigner is considered to be sufficiently secured through the administrative processing of the case. Legal aid to take the case before court should only be granted in exceptional cases, i.e. if there are very specific reasons, for instance if the case presents questions of a particular principal interest that has not previously been tried by the courts.”
3. Assistance by interpreter
“In the event that a person, who does not know Norwegian, is to take part in the proceedings, an interpreter appointed and approved by the court shall be used. Recordings are to be made in Norwegian. If required by the importance of the case, the court may decide that recording shall take place in a foreign language, either in the court records or in separate annexes, to be submitted for approval.”
4. Responsibilities of the competent court in the conduct of the proceedings
Section 9-4 Conduct of the proceedings. Plan for further proceedings
“(1) The court shall actively and systematically conduct the preparation of the case to ensure that it is heard in a swift, cost effective and sound manner.”
Section 11-2 The court’s position with regard
the procedural steps taken by the parties
(2) The parties have the primary responsibility for presenting evidence. The court can take care of the presentation of evidence if the parties do not object. The court is not bound by the parties’ arguments with regard to questions of evidence.”
Section 11-3 The court’s responsibility to apply the law
“The court shall on its own motion apply current law within the scope of section 11 2(1). In accordance with section 1-1, the court shall ensure that there is a satisfactory basis upon which to apply the law. If the application of law cannot otherwise be clarified in a fully satisfactory manner, the court may decide that evidence of the law shall be presented, or it may allow the parties to present such evidence. The court shall determine the scope of the presentation of evidence and the manner in which it shall be carried out. Statements on the law occasioned by the case may only be submitted as evidence with the consent of all parties.”
Section 11-5 The court’s duty to give guidance
“(1) The court shall give the parties such guidance on procedural rules and routines and other formalities as is necessary to enable them to safeguard their interests in the case. The court shall seek to prevent errors and shall give such guidance as is necessary to enable errors to be rectified. ...
(2) The court shall, in accordance with subsections (3) to (7), give guidance that contributes to a correct ruling in the case based on the facts and the applicable rules.
(3) The court shall endeavour to clarify disputed issues and ensure that the parties’ statements of claim and their positions regarding factual and legal issues be clarified.
(4) The court may encourage a party to take a position on factual and legal issues that appear to be important to the case.
(5) The court may encourage a party to offer evidence.
(6) The court shall during the proceedings show particular consideration for the need for guidance of parties not represented by counsel.
(7) The court shall provide its guidance in a manner that is not liable to impair confidence in its impartiality. The court shall not advise the parties on the position they should take on disputed issues in the case or on procedural steps they should take.”
Section 11-6 Duty of the court to take an active
in the conduct of the proceedings
“(1) The court shall prepare a plan for dealing with the case and follow it up in order to bring the case to a conclusion in an efficient and sound manner.
(3) In each case, a preparatory judge shall be responsible for the conduct of the proceedings.
A. Submissions of the parties
B. Assessment by the Court
“[I]t may be noted that Article 6, of which the right of access to a court is one aspect, is not applicable to expulsion cases (see Maaouia v. France [GC], no. 39652/98, §§ 37-41, ECHR 2000 X). Moreover, the right to an effective remedy in Article 13 “does not guarantee a right to legal counsel paid by the State when availing oneself of such a remedy” unless the grant of such aid is warranted by “special reasons” in order to enable effective use of the available remedy (see Goldstein v. Sweden (dec.) no. 46636/99). There is no Convention obligation as such on a Contracting State to operate a civil legal aid system for the benefit of indigent litigants (see Cyprus v. Turkey [GC], no. 25781/94, § 352, ECHR 2001 IV). According to the Court’s case-law, a lack of financial means does not absolve an applicant from making some attempt to take legal proceedings (see D. v. Ireland (dec.) no. 26499/02, 27 June 2006, with reference to Cyprus v. Turkey, ibidem; see also as an example X v. the Federal Republic of Germany (dec.) no. 181/56, Yearbook 1, pp. 140-141).
In the light of the above, the Court finds that the availability of a judicial appeal against the immigration authorities’ decision to expel the applicant and of the possibility to seek a judicial injunction to stay the implementation of the expulsion was sufficient, for the purposes of Article 35 of the Convention, to afford redress in respect of the potential breach alleged (see NA, quoted above, § 88). Since the applicant did not avail himself of the judicial remedy, in accordance with the Court’s case-law, his complaints under Articles 2 and 3 of the Convention should in principle be declared inadmissible for failure to exhaust domestic remedies (see NA, paragraph 90, quoted above, and Akdivar and Others v. Turkey, 16 September 1996, § 66, Reports of Judgments and Decisions 1996 IV).”
For these reasons, the Court unanimously
Declares the application inadmissible.
Søren Nielsen Nina Vajić