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Cite as: [2012] ECHR 333

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FIRST SECTION

DECISION

Application no. 22669/10
Dilan Sadik ALI
against Norway

The European Court of Human Rights (First Section), sitting on 14 February 2012 as a Chamber composed of:

Nina Vajić, President,
Peer Lorenzen,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Linos-Alexandre Sicilianos,
Erik Møse, judges,
and Søren Nielsen, Section Registrar,

Having regard to the above application lodged on 19 April 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:

THE FACTS

The applicant, Mr Dilan Sadik Ali, is an Iraqi national who was born in 1979 and lives in Kristiansand. He is represented before the Court by Mr D. Gallup, legal officer at the World Service Authority, Washington, the United States of America (USA).

The Norwegian Government (“the Government”) were represented by Mr M. Emberland, Attorney, Attorney-General’s Office (Civil Matters), as their Agent, assisted by Mr G.O. Hæreid, Attorney.

A. The circumstances of the case

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

1. Residence permit

The applicant applied for asylum in Norway on 21 March 2001. On 14 November 2001 the Directorate of Immigration rejected his asylum request but granted him a work- and residence permit on humanitarian grounds (section 8 of the Immigration Act of 24 June 1988 No. 64, Lov om utlendingers adgang til riket og deres opphold her – utlendingsloven, applicable at the material time).

2. Criminal conviction

By a judgment of 15 April 2005 the Kristiansand City Court convicted the applicant on charges of aggravated assault committed against his former girlfriend. It found established beyond reasonable doubt that he had pushed her to the ground so that she had fallen and hit her head against the asphalt and, while she was lying on the ground, had kicked her twice on her left hand side and had then left the scene. The victim was hospitalised for three days while suffering from nausea and vomiting, minor head aches, amnesia and pain in the rib on her left side. The applicant was in addition convicted on a count of speeding. The City Court, finding that the applicant’s kicking of the victim made the offence borderline to what would warrant a non suspended sentence and being in doubt therefore, decided to impose a suspended sentence of sixty days’ imprisonment and a fine of 3,000 Norwegian kroner (NOK), corresponding to approximately 390 Euros (EUR).

3. Expulsion and prohibition on re-entry

(a) The Directorate of Immigration’s decision and subsequent challenges

In the light of his conviction on 15 April 2005, the Directorate of Immigration warned the applicant on 8 September 2005 that it contemplated expelling him.

On 30 November 2006 the Directorate decided to expel the applicant, finding that the conditions under section 29 (1) (c) and (3) of the Immigration Act 1988 had been fulfilled and that his expulsion would not be disproportionate for the purposes of section 29 (2). Under section 29 (4), the Directorate further decided to prohibit the applicant from re-entry into Norway indefinitely.

In a separate decision of the same date, the Directorate rejected an application by the applicant for renewal of his work- and residence permit. It held that the conditions for granting him such a permit had not been fulfilled as there existed circumstances that warranted refusing him entry into the country.

Represented by a new lawyer, the applicant appealed (via the Directorate) to the Immigration Appeals Board. He argued that the expulsion was disproportionate as he had settled in Norway and that he was not a criminal in the normal sense of the word. The applicant pointed out that he had not been involved in any criminal offence either before or after those dealt with by the City Court. Moreover, Iraq was in a state of civil war and there was a high risk of escalation of the internal conflict, meaning that the situation was generally insecure.

In a letter to the Directorate, dated 14 January 2007, the applicant claimed to be of Turkmen ethnic origin coming from Kirkuk. He also maintained that his previous girlfriend had tried to blackmail him and added that he had a new girlfriend.

By a letter of 1 February 2007 the applicant’s new girlfriend, Ms M.O. who was Norwegian, requested the Directorate of Immigration to reconsider its previous rejection. On 11 April 2007, he informed the Directorate that on 31 March 2007 he had married M.O.

On reviewing the above-mentioned arguments, the Directorate did not consider that the appeal contained any new information of significance and maintained its previous decisions. The Directorate noted that the applicant had married on 31 March 2007, but did not attach great importance to this event since the marriage had occurred after the Directorate’s decision of expulsion. It was also pointed out that the applicant was suspected of two further incidents of assault, occurred on 12 June and 1 August 2007, respectively. The Directorate consented, however, to postpone the enforcement of his expulsion pending a decision on his appeal, which the Directorate referred to the Immigration Appeals Board on 15 October 2007.

(b) Immigration Appeals Board’s rejection of appeal

On 15 August 2008 the Immigration Appeals Board rejected the applicant’s appeal against the Directorate’s refusal of the applicant’s request for renewal of his work- and residence permit. The Board upheld in part his appeal against the Directorate’s decision to expel him indefinitely by limiting the prohibition on re-entry to five years. It decided that an application for re-entry could be made at the earliest after a period of two years from his leaving the country.

The Board reiterated that, according to section 29 (1) (c) of the Immigration Act 1988, a foreign national might be expelled if he or she had been sentenced in Norway for an offence that was punishable by imprisonment for a term exceeding three months. Moreover, pursuant to section 29 (3), if the person concerned held a work- or residence permit, he or she could only be expelled if the offence was punishable by imprisonment for a term exceeding one year or in the event of violation of inter alia Article 228 (1) (assault) of the Penal Code. The Board, referring to the applicant’s conviction and sentence (for aggravated assault under Article 228 (1) and (2)) by the City Court of 15 April 2005, considered that this condition had been fulfilled in his case.

As to the condition in section 29 (2) that the expulsion should not be a disproportionately severe measure vis-à-vis the foreign national himself or his closest family members, the Board first had regard to the seriousness of the offence. The City Court had imposed a suspended term of sixty days’ imprisonment in respect of offences that included assault against his previous girlfriend, resulting in injury to her body and health. This was a relatively serious offence which carried a maximum penalty of three years’ imprisonment. In meting out the sentence, the trial court had held that the fact that applicant had kicked the victim’s body after she had fallen to the ground was an important aggravating factor and had found no mitigating circumstances.

The Board further considered it significant that, on 2 May 2008, the applicant had accepted a summary fine (forelegg) for an offence of theft (Article 257 (1) of the Penal Code). It in addition noted that on 30 June 2008 the City Court had sentenced him to forty-five days’ suspended imprisonment in respect of two instances of aggravated violent assault (Article 228) and for dealing with stolen goods (Article 317 (1)), but without attaching decisive importance thereto, it being unclear whether the judgment had gained legal force.

In light of the gravity of the applicant’s offences, the Board found that his personal attachment to Norway carried little weight, as did the fact that he had married a Norwegian national after the Directorate had decided to expel him. At that time they could hardly have entertained any legitimate expectation about being able to live together in Norway. The applicant’s links to the country through his wife had mainly been established after he had committed the offences for which he had been convicted. However, having regard to it being a suspended sentence, to his overall links to Norway and to the Board’s practice in this area, the latter limited the prohibition on re-entry to five years. In the Board’s opinion, the consequent interference with the applicant’s enjoyment of private and family life would be justified for the purposes of Article 8 of the Convention.

The Board next considered whether the applicant’s expulsion would be prevented by a real risk of persecution, loss of life or ill-treatment (section 15 of the Immigration Act and Article 3 of the Convention).

In this connection, the Board based its assessment on it having been established that the applicant was of Kurdish ethic origin and came from Kirkuk, as he had consistently submitted in his request for a residence permit in Norway. His claim on some occasions in 2005 and thereafter that he was of Turkmen origin had weakened his credibility.

In so far as the applicant’s individual situation was concerned, the Board noted that the reasons underlying his asylum request had related to the Baath regime and that this regime no longer existed. Nor were there any other circumstances pertaining to the applicant or the conditions in his home country suggesting that he was in need of protection.

As to the general security situation in Kirkuk, the Board stated that it was characterised by violence and disturbance and had been unstable and difficult. Kirkuk had been located in the border region near the Kurdish autonomous areas in Iraq. The Kurdish population had been in a majority whereas Turkmens, Arabs and Assyrians had constituted the largest minority groups. Kirkuk had mainly been under Kurdish political and military control, though the minorities had also been represented in governing bodies.

At times during the past years the level of violence had been high, notably because of the presence of several different militant groups. In Kirkuk the violence had in particular taken the form of shootings, road bombs, suicide bombs and car bombs. The targets of the actions had first and foremost been the security forces and the police, but also local political leaders and their family members as well as members of the civilian population had been affected by actions.

The Board nonetheless considered that the current situation had not been such as to regard all citizens in the area as being in imminent danger of loss of life or ill-treatment. The most recent reports on the area, amongst other from the United Nations Security Council, the United States’ Department of Defence, the UN Assistance Mission for Iraq (UNAMI) and the United Nations High Commissioner for Refugees (UNHCR), had showed that the security situation in the area was improving. In comparison with other areas of Central and Southern Iraq, the current violence had been more limited and had to a greater extent been aimed at specific target groups, than was the case in Southern Iraq. According to the Board’s practice, the general security situation in Kirkuk had not on its own constituted a ground for protecting persons of Kurdish ethnic origin.

(c) Request for reconsideration

The applicant requested the Immigration Appeals Board to reconsider its above-mentioned refusal of 15 August 2008. He argued that his return would be prevented by the security situation in Iraq generally and that in Kirkuk specifically. He further submitted that his wife suffered from depression. According to a medical statement from the psychiatric clinic of Sørlandet Hospital, in view of her husband’s impending expulsion, her psychological problems had increased with serious suicidal thoughts and impulses. He was important to her and represented a stabilising factor in her life and her mental health. Also, he assumed a significant role as a care person for his stepson who was showing signs of behavioural difficulties.

On 30 June 2009 the Board refused the applicant’s request, finding no hardship exceeding what was normal in a situation of expulsion. Also, the applicant’s relationship to his spouse and stepchildren had been established essentially after he had committed the offences for which he had been convicted. The Board reiterated that the prohibition on re-entry had been limited to five years.

As regards the question whether the general situation in Kirkuk was such as to prevent the applicant’s return, the Board restated the findings made in its decision of 15 August 2008 summarised above. It noted that in its recommendations of 18 December 2008 and Eligibility Guidelines of August 2007, and the Addendum thereto of December 2007, as well as Eligibility Guidelines of April 2009, the UNHCR had advised against any forcible return to the five governorates of Central Iraq (Bagdad, Ninewah, Diyala, Salah al-Din, Tamim) and considered that persons coming from these areas should be recognised as refugees. The UNHCR had assumed in its recommendations that persons who were not recognised as refugees should nevertheless be granted protection. The UNHCR had amongst other referred to the general situation of violence, the great number of internally displaced people, the authorities’ inability and unwillingness to provide protection, the high unemployment, limited access to fuel, electricity and water and great shortcomings in public health services, education etc.

The Board reiterated that UNHCR recommendations were relevant and had to be given weight, both as information about the general situation in Iraq and as part of the interpretation of whom had a right to protection under the Refugee Convention. However, the UNHCR recommendations could not be decisive of their own. The Board had to have regard to other information and reach a correct decision in accordance with the Refugee Convention and other relevant rules. The Board also took account of the fact that the UNHCR recommendations had regard to humanitarian and socio economic considerations, not only to the security situation and the danger of being affected by violence.

Although the security situation in Kirkuk was difficult and unstable, the Board did not consider that the current situation was of such a nature that all the inhabitants of the region could be said to face a real risk of losing their lives or of being made to suffer inhuman treatment. Nor were there factors related to the applicant’s Kurdish origin that indicated that he would face a real risk of losing his life or being made to suffer inhuman treatment if he were to return to Kirkuk.

In this connection, the Board reiterated that, throughout his application to stay in Norway, the applicant had maintained that he was of Kurdish ethnic origin and that so was his father. The fact that the applicant in 2005 onwards had claimed to be of Turkmen origin detracted from his general credibility.

In its decision the Board also provided information about a voluntary repatriation program that had operated since 1 March 2008, covering the Dahuk, Erbil and Sulaymaniyah Governorates in Northern Iraq and opening also for the possibility to apply for repatriation to other areas. It was sponsored by the Norwegian Government and implemented by the International Organization for Migration. Under this program a returnee would be eligible to receive NOK 10,000 (approximately EUR 1,300) in cash and be offered an additional NOK 25,000 (approximately EUR 3,250) in resettlement support.

The applicant sought to bring his case to the attention of a number of instances, including to the King, the Prime Minister and various ministries, but to no avail.

B. Relevant domestic law and practice

Under the Code of Civil Procedure of 17 June 2005 No. 90 (tvisteloven), a decision by the Immigration Appeals Board could form the subject of an appeal to the competent city court or district court (tingrett) (Articles 1-3, 1 5, 4-1), from there to the High Court (lagmannsrett) (Articles 4-1 and 29 1) and ultimately to the Supreme Court (Article 30-1). The domestic courts had full jurisdiction to review the lawfulness of the Board’s decision and were empowered to quash the decision should they find that it was unlawful. Pursuant to section 4 of the Immigration Act 1988, the provisions of the Act were to be applied in accordance with Norway’s international legal obligations intended to strengthen the legal position of a foreign national. In the event of conflict between the national legal provision and Norway’s obligations under the Convention, the latter was to take precedence (sections 2 and 3 of the Human Rights Act of 21 May 1999 No. 30).

Under Chapters 32 and 34 of the Code of Civil Procedure, a person whose expulsion had been ordered by the immigration authorities could apply to the courts for an interlocutory injunction to stay the implementation of the expulsion order.

Further conditions regarding judicial review of the Immigration Appeals Board’s decision were set out inter alia in the following provisions and guidelines.

1. Duty to pay court fees

At the material time, the fee for filing a lawsuit before a City Court or a District Court (tingrett) was NOK 4,300, corresponding to approximately EUR 560, if the hearing lasted for one day and NOK 6,880 (EUR 900) if the hearing lasted for two days.

Pursuant to section 3 of the Court Fees Act of 17 December 1982 No. 86 (rettsgebyrloven), fees should be paid in advance. In the event that a sufficient amount had not been paid when a request for a judicial order had been made, the court was to fix a brief time-limit for payment. In the event that payment is not effected within the time-limit fixed, the court shall dismiss the case, unless the provisions in section 5 apply. The latter provided:

“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.”

An exception from the condition to pay court fees could be granted as part of a grant to free legal representation according to the same rules as those that applied to the latter (section 25 of the Free Legal Aid Act). A person who was not entitled to free legal representation could be granted an exemption from the duty to pay court fees provided that the financial conditions in section 16 (2) or (4) had been fulfilled (see below).

2. Assistance by legal counsel

According to the Code of Civil Procedure a party could be represented by counsel (Article 3-1), but was not obliged to be so represented, save if the party was unable to present the case in a comprehensible manner and the court has ordered the party to appear with counsel (Article 3-2).

Section 16 (1) to (5) of the Free Legal Aid Act 1980 included the following provisions of relevance to the present case:

“(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 [2008] ....

...

(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 Circular G-12/05 the Ministry of Justice and Home Affairs stated at paragraph 6.5.2:

“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

Section 135 (1) of the Administration of Courts Act 1915 (domstolloven) provided:

“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

The Government referred in particular to the following provisions of the Code of Civil Procedure:

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 to
the procedural steps taken by the parties

“(1) ....

(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 part
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.

(2) ....

(3) In each case, a preparatory judge shall be responsible for the conduct of the proceedings.

...”

COMPLAINTS

The applicant complained that his expulsion to Iraq would expose him to a risk of treatment contrary to Articles 2 and 3 of the Convention. He further alleged that it would entail an unjustified interference with his Article 8 rights in that he would be separated from his wife and three step children, all of whom were Norwegian nationals. The applicant also invoked Article 14 of the Convention, Article 4 of Protocol No. 4 and Article 1 of Protocol No. 7.

THE LAW

The Court will first examine whether the applicant has fulfilled the requirement in Article 35 § 1 of the Convention to exhaust domestic remedies.

A. Submissions of the parties

1. The Government’s arguments

The Government maintained that the applicant had not satisfied the requirement in Article 35 § 1 of the Convention that “all domestic remedies have been exhausted according to the generally recognised rules of international law”. They therefore requested the Court to declare the application inadmissible under Article 35 §§ l and 4.

Although domestic judicial remedies had been readily available to individuals in situations such as that of the applicant, he had not lodged a judicial appeal against any of these decisions or taken any step towards this end. All he had done at the national level had been to lodge administrative appeals against his expulsion and the prohibition on re-entry and to address letters to a number of public authorities not mandated to consider such matters. The Government pointed out that it would still be possible for him to institute judicial proceedings.

Under the provisions of the Code of Civil Procedure, the Norwegian courts were vested with full jurisdiction to determine the lawfulness of decisions taken by administrative authorities, including those of the Immigration Appeals Board.

It was further to be noted that, by virtue of the incorporation of the Convention into Norwegian law through the Human Rights Act 1999, the Immigration Act 1988 and also the more recent Immigration Act 2008 replacing the latter, the domestic courts were fully empowered to examine and determine complaints of violations of the Convention. According to section 4 of the Immigration Act 1988 (applicable at the material time), the Act was to be applied in accordance with such international rules binding on Norway that were intended to strengthen the position of a foreign national.

Moreover, pursuant to sections 2 and 3 of the Human Rights Act, in the event of conflict between the provisions of the Convention or its protocols and national legal provisions, the former were to take precedence. Accordingly, the obligations under the Convention took precedence over national legislative and administrative acts.

The Government therefore considered that available domestic judicial remedies in the applicant’s case were fully “effective” and “adequate” within the meaning of Article 35 § 1 of the Convention as interpreted by the Court. Having failed to institute proceedings, the applicant could not be said to have satisfied the admissibility requirement in Article 35 § 1 of the Convention.

If he wanted to be represented by a lawyer before the City Court, he would probably have incurred between NOK 30,000 and 50,000 (approximately between EUR 3,900 and 6,500) in expenses for his lawyer’s work, in addition to the NOK 4,300 (EUR 560) in court fees for a one day’s hearing, or NOK 6,880 (EUR 900) for two days.

For no apparent reason, the applicant had not availed himself of the possibility to apply to the County Governor of Oslo and Akershus (and later the State Civil Affairs Authority) for free legal aid under the Free Legal Aid Act. In this connection, the Government referred to a number of examples where the legal aid authorities had granted legal aid, notably under section 16 (3) of the Free Legal Aid Act, in expulsion cases.

The Government further pointed to the fact that the Code of Civil Procedure contained no general requirement that an individual who sought a judicial order quashing an administrative decision ought to retain a lawyer to appear on his behalf before the public courts. Article 3-1 of the Code of Civil Procedure referred to a litigant’s “entitlement” to be represented by legal counsel in court proceedings. Article 3-2 of the Code only required a party to civil proceedings to retain legal counsel if he or she could not comprehensibly present his or her own case.

The Code moreover placed considerable responsibility on the courts to ensure that proceedings were carried out in accordance with the rule of law. For instance, Article 9-4 of the Code required the courts to actively oversee the proceedings so that they were properly conducted; and Article 11-5 (6) required the courts to be especially diligent in their guidance of the parties before it when one party was not represented by legal counsel. The courts were moreover not entirely bound by the parties’ arguments. For instance, the courts had full authority to interpret and apply the relevant law and legislation in question (Article 11-3); and the courts similarly had full authority with regard to the facts of the case (Article 11-2).

It was also significant that section 135 (1) of the Administration of Courts Act of 13 August 1915 No. 5 provided for the assistance of an interpreter should the party in question be unable to present his or her case in Norwegian.

In the Government’s view, the applicant in this particular case would indeed be qualified to present his own case before the Norwegian courts. The subject-matter of the dispute would be relatively straight-forward; the court would have before it, by way of the documents from the administrative proceedings, a considerable amount of written material containing legal and factual arguments, including arguments relating to the application of Articles 2, 3 and 8 of the Convention. For instance, the applicant’s extensive application to the European Court could, with or without enclosures, be submitted to the domestic court as a part of the case file.

However, the applicant had not afforded the domestic courts the opportunity, provided for in Article 35 § 1 of the Convention, to consider redress against his Convention complaints.

Nor had he sought an interlocutory injunction to stop his expulsion under Chapters 32 and 34 of the Code of Civil Procedure.

2. The applicant’s arguments

The applicant maintained that he had exhausted all national administrative remedies by appealing against the expulsion order and the prohibition on re-entry to the Immigration Appeals Board, which by its final decision of 15 August 2008 had rejected his appeal. He had not been able to lodge an appeal against the latter to the domestic courts.

The applicant affirmed that his household’s only source of income was the social security benefits that his wife received, covering in the main expenses to the family’s subsistence and rented accommodation, plus certain additional benefits but not funds for judicial costs. The applicant was thus unable to pay the NOK 4,300 of court fees for one day in court.

Furthermore, from Circular G-12/05 it followed that in immigration cases legal aid could be granted before the courts only in exceptional cases.

Since the applicant’s case concerned expulsion from Norway on criminal grounds, his individual circumstances were different from those referred to by the Government as examples of unsuccessful asylum seekers who had been granted legal aid before the national courts. A substantial number of lawyers whom the applicant had contacted when considering the possibility of instituting judicial proceedings had affirmed that his current “illegal situation” in Norway would clearly constitute a ground for refusing him free legal aid. In the applicant’s opinion, a request for free legal aid would undoubtedly have been refused had he submitted one.

Without any legal training or knowledge of Norwegian judicial procedures, the applicant could not plead his own case comprehensively before Norwegian courts. Requiring him to do so would have violated his right to effective due process. Furthermore, the revocation of his work permit had prevented him from pursuing gainful employment lawfully.

The applicant had therefore been left with no other option but to address letters to various instances, including “the King, [the] Queen and the Prime Minister, with the expectation” of obtaining “a decree” to the effect that the Immigration Appeals Board had reached its decision on erroneous ground. Since his attempts at the national level had been ignored or rejected, he had petitioned the Court in order to seek redress for the violations of his Convention rights.

The applicant requested the Court to hold that he had exhausted all domestic remedies available to him. His financial destitution and inability to obtain legal assistance pro bono had prevented him from accessing the domestic courts.

3. Assessment by the Court

In determining whether an applicant has exhausted domestic remedies for the purposes of Article 35 § 1 of the Convention, the Court will follow the same approach as in its recent decision on admissibility in Agalar v. Norway (dec.) no. 55120/09, 8 November 2011. Like in that case, it will have regard to the general principles established in its case-law as enunciated notably in its NA. v. the United Kingdom (no. 25904/07, 17 July 2008):

“88. The Court recalls that the rule of exhaustion of domestic remedies in Article 35 § 1 of the Convention requires applicants first to use the remedies provided by the national legal system, thus dispensing States from answering before the European Court for their acts before they have had an opportunity to put matters right through their own legal system. The burden of proof is on the Government claiming non-exhaustion to satisfy the Court that an effective remedy was available in theory and in practice at the relevant time, namely, that the remedy was accessible, capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success (see T. v. the United Kingdom [GC], no. 24724/94, 16 December 1999, § 55). Article 35 must also be applied to reflect the practical realities of the applicant’s position in order to ensure the effective protection of the rights and freedoms guaranteed by the Convention (Hilal v. the United Kingdom (dec.), no. 45276/99, 8 February 2000).

89. The Court has consistently held that mere doubts as to the prospects of success of national remedies do not absolve an applicant from the obligation to exhaust those remedies (see, inter alia, Pellegrini v. Italy (dec.), no. 77363/01, 26 May 2005; MPP Golub v. Ukraine (dec.), no. 6778/05, 18 October 2005; and Milosevic v. the Netherlands (dec.), no. 77631/01, 19 March 2002). However, it has also on occasion found that where an applicant is advised by counsel that an appeal offers no prospects of success, that appeal does not constitute an effective remedy (see Selvanayagam v. the United Kingdom (dec.), no. 57981/00, 12 December 2002; see also H. v. the United Kingdom, cited above; and McFeeley and others v. the United Kingdom, no. 8317/78, Commission decision of 15 May 1980, Decisions and Reports (DR) 20, p. 44). Equally, an applicant cannot be regarded as having failed to exhaust domestic remedies if he or she can show, by providing relevant domestic case-law or any other suitable evidence, that an available remedy which he or she has not used was bound to fail (Kleyn and Others v. the Netherlands [GC], nos. 39343/98, 39651/98, 43147/98 and 46664/99, § 156, ECHR 2003 VI; Salah Sheekh v. the Netherlands, no. 1948/04, §§ 121 et seq., ECHR 2007 ... (extracts)).

90. In determining whether the applicant in the present case has exhausted domestic remedies for the purposes of Article 35 § 1 of the Convention, the Court first observes that where the applicant seeks to prevent his removal from a Contracting State, a remedy will only be effective if it has suspensive effect (Jabari v. Turkey (dec.), no. 40035/98, 28 October, 1999). Conversely, where a remedy does have suspensive effect, the applicant will normally be required to exhaust that remedy (Bahaddar v. the Netherlands, judgment of 19 February 1998, Reports of Judgments and Decisions 1998 I, §§ 47 and 48). Judicial review, where it is available and where the lodging of an application for judicial review will operate as a bar to removal, must be regarded as an effective remedy which in principle applicants will be required to exhaust before lodging an application with the Court or indeed requesting interim measures under Rule 39 of the Rules of Court to delay a removal. This is particularly so when a claim for judicial review is defined in the domestic law of the respondent State, inter alia, as a claim to review the lawfulness of a decision (see paragraph 28 above) and section 6 (1) of the Human Rights Act provides that it is unlawful for a public authority, which would include the Secretary of State, to act in a way which is incompatible with a Convention right (see paragraph 27 above).”

As also observed in Agalar (cited above), the Court notes that under the relevant provisions of the Code of Civil Procedure, an appeal against the Immigration Appeals Board’s rejection of the applicant’s asylum request lay with the City Court, from there to the High Court and ultimately to the Supreme Court. The national courts had full jurisdiction to examine the lawfulness of the Board’s decision, including its compatibility with the Convention. The competent court was empowered to quash the Board’s decision if it found the latter to be contrary to the Convention or otherwise unlawful. Reference is made in this respect to the Human Rights Act, which incorporates the Convention into Norwegian law (section 2) and provides that, in the event of conflict between a national legal provision and a provision of the Convention, the latter is to take precedence (section 3).

Furthermore, under the provisions of Chapters 32 and 34 of the Code of Civil Procedure, it was open to the applicant under certain conditions to apply to the courts for an interlocutory injunction ordering the immigration authorities to stay the execution of his expulsion. If granted, such a measure would have an immediate and suspensive effect on his expulsion.

As to the applicant’s argument that he had been unable to access the courts due to his indigence and the fact that legal aid was granted only in exceptional cases not extending to cases such as his, the Court reiterates its following findings in Agalar (cited above):

“[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).”

In the Court’s view, the above considerations apply with equal force to the present application. As the applicant did not seek judicial review, his complaints under the Convention should in principle be declared inadmissible on the ground of failure to exhaust domestic remedies.

Like in Agalar, the Court will also in the case now under consideration consider whether there are any special circumstances which absolve the applicant from his normal obligation to exhaust domestic remedies (see also Akdivar, cited above, § 67; and Van Oosterwijck, cited above, §§ 36 to 40). In this regard, it notes in particular that, unlike Mr Agalar, the applicant in the instant case did not apply for free legal aid to the competent national legal aid authorities, the County Governor and (on appeal) the Civil Affairs Authority, with a view to obtaining national judicial review of the impugned decisions. Although the Ministry of Justice and Home Affairs’ Circular G 12/05 laid down that in cases such as here “the practice should be very restrictive”, the Court is not convinced by the applicant’s suggestion that it would have been entirely futile for him to apply for legal aid to the relevant authorities (see paragraphs 52 and 62 above). Instead he opted to lodge, with the assistance of a lawyer in the USA, an application to the European Court directly.

In light of the above, the Court discerns no special circumstances that could arguably dispense the applicant from his normal obligation to exhaust domestic remedies.

It follows that the application must be rejected under Article 35 §§ 1 and 4 of the Convention for failure to exhaust domestic remedies in respect of the applicant’s Convention grievances.

In view of the above, it is appropriate to discontinue the application of Rule 39 of the Rules of Court.

For these reasons, the Court unanimously

Declares the application inadmissible.

Søren Nielsen Nina Vajić
Registrar President