Last Updated on May 17, 2019 by LawEuro
THIRD SECTION
DECISION
Application no. 42572/15
M.A.
against the Netherlands
The European Court of Human Rights (Third Section), sitting on 16 October 2018 as a Committee composed of:
Dmitry Dedov, President,
Alena Poláčková,
Jolien Schukking, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 24 August 2015,
Having regard to the factual information provided by the respondent Government and the comments in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr M.A., claims to be a national of the Republic of the Union of Myanmar (Myanmar), that he hails from Arakan (Rakhine) and that he is of Rohingya origin. He was born in 1968 and is currently residingin the Netherlands. He was represented before the Court by Mr M.J. Verwers, a lawyer practising in Wageningen. The Committee decided of its own motion to grant the applicant anonymity pursuant to Rule 47 § 4 of the Rules of Court.
2. The Netherlands Government (“the Government”) were represented by their Deputy Agent, Ms K. Adhin, of the Ministry of Foreign Affairs.
A. The circumstances of the case
3. The following summary of the facts of the case is based on the submissions of the applicant and on replies received from the Government to factual questions put to them pursuant to Rule 49 § 3 (a) of the Rules of Court.
4. The applicant, claiming to be a national of Myanmar of Rohingya origin, applied for asylum in the Netherlands in June 2002. This request was rejected as no credence was attached to his asylum statement. The final decision in these proceedings was given on 15 September 2004 by the Administrative Jurisdiction Division (AfdelingBestuursrechtspraak) of the Council of State.
5. On 18 May 2005 the applicant filed a fresh asylum application. Pursuant to section 4:6 of the General Administrative Law Act (Algemene Wet Bestuursrecht), a repeat request such as the one submitted by the applicant must be based on newly emerged facts and/or altered circumstances (“nova”) warranting a reconsideration of the initial refusal. This fresh application was rejected on 24 May 2005 by the Minister for Immigration and Integration (Minister voorVreemdelingenzakenenIntegratie) who further decided ex officio that the applicant did not qualify for a residence permit for the purpose of residence as an alien who, through no fault of his own, cannot leave the Netherlands (buitenschuldvergunning).
6. The last decision on the applicant’s fresh asylum application was given on 17 June 2005 when the applicant’s appeal against that part of the Minister’s impugned decision was rejected by the provisional-measures judge (voorzieningenrechter) of the Regional Court (rechtbank) of The Hague, sitting in Arnhem. Although possible, there is no indication in the case file that the applicant filed a further appeal with the Administrative Jurisdiction Division.
7. The last decision as regards the applicant’s eligibility for a “no fault” residence permit was given on 15 September 2009 by the single-judge chamber (enkelvoudigekamer) of the Regional Court of The Hague, sitting in Dordrecht. There is no indication in the case file that the applicant filed a further appeal with the Administrative Jurisdiction Division.
8. In the meantime, on 5 January 2006, the Deputy Minister of Justice (Staatssecretaris van Justitie) had informed the applicant that a letter sent by the applicant on 23 December 2004 was considered as a fresh application for a residence permit. This application was rejected by the Deputy Minister on 1 July 2008. The applicant’s appeal was dismissed on 7 October 2008 by the single-judge chamber (enkelvoudigekamer) of the Regional Court of The Hague, sitting in Dordrecht. There is no indication that the applicant filed a further appeal with the Administrative Jurisdiction Division.
9. On 25 July 2008 the Deputy Minister transmitted to the applicant the report that had been drawn up on 8 May 2008 on a language analysis test carried out on 21 April 2008 by the Office for Country Information and Language Analysis (Bureau Land enTaal; “BLT”), a specialised unit of the Netherlands Immigration and Naturalisation Service (Immigratie- enNaturalisatiedienst; “IND”) of the Ministry of Justice. The conclusion of this language analysis – which had been requested as in the course of the proceedings on the applicant’s asylum applications doubts had arisen about his actual origins – was that the applicant was unequivocally identified as originating from (“eenduidigteherleiden tot”) the linguistic and cultural community in Bangladesh. The report stated that the applicant was unable to give correct, concrete en detailed information about his alleged area of origin in Myanmar, that he did not speak Rohingya but Chittagong-Bengali with an accent situating him unequivocally outside Myanmar. The applicant further had no active command of Arakanese or any other form of Burmese. The report further specified that the analyst originated from Myanmar, that his mother tongue was Rohingya and that, in addition, he spoke Arakanese and Burmese.
10. According to a counter-expertise report of 20 December 2012, the applicant originated most probably from Arakan, Myanmar. This counter‑expertise was carried out by an expert holding a PhD and working as an associate professor in Linguistics, who originated from Bangladesh and had a command of Standard Bengali and Chittagonian Bengali.
11. On 21 March 2013 the applicant filed another asylum application, which was rejected on 3 September 2013 by the Deputy Minister of Security and Justice (Staatssecretaris van VeiligheidenJustitie) who found that the applicant had not demonstrated that he was a Rohingya from Myanmar.
12. The applicant’s appeal against this decision was rejected on 4 November 2014 by the single-judge chamber of the Regional Court of The Hague, sitting in Arnhem. After having noted the language analysis report by BLT of 8 May 2008, the counter-expertise report of 20 December 2012 and the reply to the latter report of BLT on 19 April 2013 – stating that the counter-expertise did not give it any cause to reconsider its findings –, the Regional Court agreed that the applicant had not established his claimed geographical and ethnic origins. It further did not find that, for medical reasons, there was an obstacle under Article 3 of the Convention for the applicant’s removal from the Netherlands.
13. The applicant’s further appeal against this judgment was rejected on 25 February 2015 by the Administrative Jurisdiction Division. It held that under section 91 § 2 of the Aliens Act 2000 (Vreemdelingenwet 2000), no further reasoning was called for, as the arguments submitted did not raise any questions requiring determination in the interest of legal unity, legal development or legal protection in the general sense. No further appeal lay against this ruling.
B. Subsequent developments
14. On 7 June 2018 a number of factual questions were put to the Government which concerned practical aspects of removals to Myanmar or Bangladesh, including the applicant’s removal. The Government submitted their replies on 5 July 2018 and the applicant’s comments in reply were submitted on 20 July 2018.
15. The Government submitted that rejected asylum-seekers can only be removed to Myanmar or Bangladesh if they hold a valid travel document (passport or laissez-passer), and that attempts to obtain a travel document for the applicant from the authorities of either Myanmar or Bangladesh had remained unsuccessful as the applicant was unable to provide them with documents required. As without these required documents there was no prospect in the near future of the applicant being removed to Bangladesh or Myanmar, the Netherlands authorities were currently not taking any steps aimed at the applicant’s removal.
16. In his reply, the applicant only submitted – referring to the report on the counter-expertise (see paragraph 10 above) – that in his submissions to the Court he had sufficiently proven that he was a Rohingya from Myanmar.
C. Relevant domestic law and practice
17. A general overview of the relevant domestic law and practice in respect of enforcement of removals has been set out in K. v. the Netherlands ((dec.), no. 33403/11, §§ 25-32, 25 September 2012).
COMPLAINT
18. The applicant complained that his removal to Myanmar would expose him to a real risk of being subjected to treatment in violation of Article 3 of the Convention.
THE LAW
19. The applicant complained that, if removed to Myanmar, he would be exposed to a real risk of being subjected to treatment proscribed by Article 3 of the Convention. Article 3 of the Convention reads:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
20. The Court reiterates at the outset that, according to its established case-law in cases concerning the expulsion of an applicant from a respondent State, once the applicant no longer risks being expelled from that State, it considers the case to have been resolved and strikes it out of its list of cases, whether or not the applicant agrees (see M.E. v. Sweden (striking out) [GC], no. 71398/12, § 32, 8 April 2015).
21. The Court notes that the Netherlands authorities do not, at least not for as long as he has no valid travel document, intend to proceed effectively with the applicant’s removal from the Netherlands. It further notes that, should any practical steps aimed at the applicant’s removal from the Netherlands nevertheless be taken in the future, it is possible for the applicant to challenge this. He may also, pursuant to Article 37 § 2, seek to have his application to the Court restored should no domestic remedies capable of staying such a removal be available to him.
22. In the light of the foregoing, and in the absence of any special circumstances regarding respect for the rights guaranteed by the Convention or its Protocols, the Court, in accordance with Article 37 § 1 (c) of the Convention, considers that it is no longer justified to continue the examination of the application. Accordingly, the case should be struck out of the list.
For these reasons, the Court, unanimously,
Decides to strike the application out of its list of cases.
Done in English and notified in writing on 15 November 2018.
Fatoş Aracı Dmitry Dedov
Deputy Registrar President
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