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FIRST
SECTION
DECISION
Application no.
57440/10
Loqman ABDOLLAHPOUR
against Norway
The
European Court of Human Rights (First Section), sitting on 29 May
2012 as a Chamber composed of:
Nina Vajić,
President,
Peer Lorenzen,
Elisabeth
Steiner,
Khanlar Hajiyev,
Mirjana Lazarova
Trajkovska,
Linos-Alexandre Sicilianos,
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:
THE FACTS
- The
applicant, Mr Loqman Abdollahpour, is an Iranian national who was
born in 1979 and lives in Lørenskog. The Norwegian Government
(“the Government”) are represented by Mrs F. Platou
Amble, Attorney, Attorney General’s Office (Civil
Matters), as their Agent, assisted by Ms K. Mellingen,
Attorney.
A. The circumstances of the case
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
1. Asylum application
- The
applicant arrived in Norway on 19 June 2003 without passport or other
recognised travel document. When applying for asylum, he stated that
he was of Kurdish ethnic origin and came from Piranshahr (a town
situated in the West Azerbaijan Province in north-western Iran), that
he was not married and had no children. He feared being imprisoned
and tortured by the Iranian authorities if returned because he had
been active in working for the Kurdish Democratic Party in Iran
(KDPI).
- The
applicant submitted that in 1996 he had been recruited by four KDPI
members. They had known that he had a cousin and a brother in Iraq
who worked for the party. The applicant formed part of a cell
together with his cousin and a nephew. The cousin had been the leader
of the group and had been the only person who had met their contact
person on the Iraqi side. The members of the cell cooperated and had
met once a month. They had selected a part of the Piranshahr town in
Iran and had mapped out escape routes so that it would be safe to
distribute leaflets. They had also tried to identify people who
worked for the regime. The applicant had been active in distributing
political materials and in recruiting new members.
- According to the applicant the KDPI’s office in
Iraq had invited him to travel to its main base there in order to
discuss with other KDPI activists. During his journey he had been
recognised by a neighbour from Iran who had acted as a guard at his
cousin’s house when the applicant had spent the night there.
The neighbour had known that the applicant had come to meet with KDPI
activists who were responsible for the party’s activities in
Piranshahr.
- After
40 to 45 days the applicant had been told that the neighbour who had
recognised him had given himself up to the authorities in Iran. The
applicant stated that the neighbour no longer wished to be a
guerrilla soldier. The applicant had then understood that the
neighbour would inform the authorities about the applicant and
therefore went into hiding for ten days. The applicant further
explained that his brother had told him that the secret services had
come to ask about him and had detained his brother for two days.
- The
applicant then felt that his life was in danger. In 2000 he had left
Iran with the help of a smuggler, to Salmas and from there to Turkey.
There he had applied for asylum through the UNHCR, but without
success. A smuggler had also assisted him to travel illegally from
Turkey to Norway.
2. Rejection by the Directorate of Immigration
- On
7 September 2004 the Directorate of Immigration rejected the
applicant’s asylum application, finding it insufficiently
probable that the applicant would be exposed to persecution for the
purposes of the Refugee Convention and national law.
- The
Directorate did not find it likely that a guerrilla soldier linked to
the party organisation in Iraq would have reported to the Iranian
authorities because he wished to break away from that organisation. A
person of such background would risk serious reactions from the
Iranian authorities. Therefore, the Directorate did not find it
sufficiently probable that the applicant would be in the authorities’
limelight because of links to the KDPI.
- Making
an assessment of the concrete circumstances as a whole, the
Directorate did not find that there were such weighty humanitarian
considerations or that the applicant had strong links to Norway as
could warrant a residence permit. Since he had relatives living in
Iran, it could not be decisive that he had a brother living in
Norway.
3. Appeal
- On
28 September 2004 the applicant, represented by the same lawyer as
before the Directorate, appealed against the latter’s
rejection, arguing that it had erroneously based itself on the
consideration that the neighbour had been a guerrilla soldier linked
to the party organisation in Iraq. The applicant pointed out that
this person had been working for the Iranian regime but had pretended
that he was a guerrilla soldier so that he could spy on the
activities of the KDPI and report on this to the Iranian authorities.
He had withdrawn from the KDPI in Iraq when he feared that the party
would discover his spying activities. This had not clearly come to
light in the asylum interview and the Directorate of Immigration had
based its decision on wrong facts. The neighbour would not have
risked serious reactions from the authorities but feared the
reactions of the KDPI if he were to be revealed, which had been the
reason why he had withdrawn as a guerrilla soldier. The applicant had
received this information in Turkey where he had been in contact with
the KDPI. His brother, Salah, had also told the applicant about the
matter. Accordingly, the person in question had possessed all the
information about the applicant and had reported to the Iranian
authorities. They had come to his home an had asked for him and his
brother, Amir, had been arrested while the applicant was absent. This
showed that the authorities had been aware of the applicant’s
activities. He was convinced that he would be arrested and executed
should he be returned to Iran.
- The
applicant further submitted that his brother, Salah, had also been
linked to the KDPI in Iraq and had been granted political asylum in
Norway. This fact would worsen the applicant’s situation if
returned to Iran. Iranian authorities would also associate him with
further activities in Norway. The Directorate had in its decision
acknowledged that links to the KDPI would lead to serious reactions
form the Iranian authorities.
- The
Directorate of Immigration refused to alter its decision, finding no
new information that could warrant this.
- On
14 March 2005 the Norwegian Organisation for Asylum Seekers (NOAS)
supported the applicant’s contention that the Directorate had
based itself on an error of fact when considering that it was not
probable that a guerrilla soldier linked to the party organisation in
Iraq would report to the Iranian authorities because he wished to
break away from that organisation. NOAS further pointed to the fact
that the applicant still was a KDPI member and that during the visit
of its Secretary General, Mr Mustafa Hejris, in Norway in March 2005
the applicant had taken part in a KDPI meeting and had been
photographed together with him.
- NOAS
in addition referred to a report of the Schweizerische
Flüchtlingshilfe according to which Iranian citizens who
left the country illegally or did not follow the rules on exit risked
between one month and three years’ imprisonment and/or a fine
upon return, and would face ransacking and questioning about the
reasons for their sojourn abroad as well as electronic verification
of whether they had breached Islamic laws or criminal law.
4. Rejection by the Immigration Appeals Board
- On
13 June 2006 the Immigration Appeals Board rejected the applicant’s
appeal, stating inter alia:
“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.”
- Nor
did the Board find, even on a reduced standard of proof, any risk of
the applicant loosing his life or being subjected to ill-treatment
should he be returned.
- Finally,
the Board did not find that granting the applicant a residence permit
was warranted by strong humanitarian considerations. He was an adult
man without serious health problems who had strong links to his home
country and who did not have any particular links to Norway, although
he had a brother and a cousin living there.
5. Refusals of requests for reconsideration
- The
applicant subsequently made a number of requests for reconsideration
of the Board’s rejection of 13 June 2006, but to no avail.
After two rejections, dated 22 August and 19 December 2006,
respectively, the applicant, represented by a new lawyer, presented
several new factual arguments to the Board requesting it to
reconsider the matter. Together with his brother, he had cooperated
with the resistance movement in Iraq. Whilst the brother had obtained
asylum in Norway the applicant’s asylum request had been
refused. They had arrived in Turkey five days apart from each other
in 2000. In Turkey they had assumed that the authorities would return
them to Iraq. They had therefore decided that only one of them should
inform that they had been in Iraq working for the resistance
movement, so that one of them should have the chance to get out of
Turkey without being returned. As to why they had adopted such a
strategy, the applicant stated that he would forward documentation
that proved that he had been in Iraq working for the resistance. He
also alleged that while in Iraq, he had made political songs against
the Iranian regime that had been disseminated in Iran. He believed
that he was known in Iran also for this reason.
- On
14 December 2007 the Board rejected the request. It considered that
the new information in part expanded on the basis for his asylum
claim, in part conflicted with his earlier explanation. Neither in
the asylum interview, nor in his appeal, had the applicant stated
that he had worked for the KDPI in Iraq. On the contrary, he had
affirmed that his activities had been limited to his hometown
Piranshahr. Also the information that he and his brother had assumed
that the Turkish authorities would return them to Iraq was new and
inconsistent with what the applicant had stated during the asylum
interview. The Board did not find the applicant’s new
information credible.
- On
25 June 2008 the Board dismissed another revision request in which
the applicant had relied on a statement from the KDPI in the
Sulaymaniyah Governorate in Iraq regarding his activities for the
party.
- On
1 July 2009 it refused a further request invoking the general
security situation in Iran after the elections and that he had
married (on 24 May 2008) a Norwegian citizen, Mrs Helala Rezai,
in accordance with Islamic tradition.
- The
Board rejected yet a further petition, on 4 February 2010. The
applicant had invoked that he had left Iran twelve years ago, he had
stayed in Norway for the past seven years, he had worked lawfully and
paid taxes in Norway, his wife and brother were Norwegian citizens
and his wife was pregnant. As to the latter, the Board drew attention
to the possibility to apply for family reunification.
6. Renewed expulsion order and refusal of re-entry
- On
15 September 2010 the Directorate of Immigration decided that the
applicant should be expelled from Norway indefinitely (sections 66
(a) and 71(2) of the Immigration Act 2008) on the ground of his
aggravated breaches of Norwegian immigration laws: He had avoided the
implementation of decisions that implied a duty for him to leave the
country, had resided illegally in Norway for four years, and had
worked illegally in Norway after the revocation of his work permit on
13 June 2006. The Directorate observed that this was not a
disproportionate measure. He had had no legitimate expectation of
being able to stay in Norway when he married Mrs Rezai on 24 May 2008
and no or little weight could be attached to the fact that he had a
brother living in Norway. The Directorate considered that this
decision was consistent with Article 8 of the Convention.
- By
a further decision of 7 April 2011, the Board limited the duration of
the prohibition on re-entry to five years. In this connection it
reiterated that no document had been submitted to the effect that the
couple had concluded a valid marriage (under Norwegian law). Neither
their marriage nor their parenthood had been registered in the
population register.
7. Application of Rule 39 of the Rules of Court
- In
the meantime, on 25 October 2010, the Court decided, in the interests
of the parties and the proper conduct of the proceedings before the
Court, to indicate to the Norwegian Government, under Rule 39 of the
Rules of Court, that the applicant should not be expelled to Iran
until further notice.
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 was 4,300 Norwegian Krone (NOK), corresponding to
approximately 560 euros (EUR), 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. Should that payment not be 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 initially complained that his life would be at danger and
that he would risk torture upon return if he were to be expelled to
Iran, contrary to Articles 2 and 3 of the Convention. He further
complained that since his wife, who was a Norwegian national, and his
brother lived in Norway, his expulsion to Iran would give rise to a
violation of his right to respect for private and family life under
Article 8. Later in the proceedings, he in addition pointed to
certain health problems related to high blood pressure.
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
- 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.
- On
the question of exhaustion of domestic remedies, the applicant
maintained that he expected the immigration authorities to bring his
case on his behalf before the Norwegian courts. In the course of his
submissions to the Court he also stated that he could not afford a
lawyer.
- In
reply the Government pointed out that the applicant’s view that
it was for the immigration authorities to institute proceedings in
his case before the court was due to a misunderstanding: it would be
for him as a plaintiff to bring proceedings before the courts.
Presuming that the applicant would take steps to pursue national
judicial remedies without further delay the Government invited the
Court to declare his application inadmissible.
B. 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 decisions on admissibility
in Agalar v. Norway (dec.) no. 55120/09, 8 November 2011); Ali
v. Norway (dec.) no. 22669/10, 14 February 2012) and X v.
Norway ((dec.) no. 53351/09, 17 April 2012). As in those
cases, 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; see also Hussein
v. Sweden (dec.) no. 18452/11, 20 September 2011).
- The
Court reiterates 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. For a remedy to be effective it has to be
available in theory and in practice at the relevant time, meaning
that it has to be accessible, capable of providing redress in respect
of the applicant’s complaints and offer reasonable prospects of
success. 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 (see NA, cited above, § 88, with
further references).
- 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. 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. 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 (ibid., § 89).
- In
cases where an applicant seeks to prevent his or her removal from a
Contracting State, a remedy will only be effective if it has
suspensive effect. Conversely, where a remedy does have suspensive
effect, the applicant will normally be required to exhaust that
remedy. 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 (ibid., § 90).
- 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.
- In
the event that the applicant felt unable to access the courts due to
his indigence and by the fact that legal aid was granted only in
exceptional cases, 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. The fact that Mr Abdollahpour did
not seek judicial review means that his complaints under the
Convention should in principle be declared inadmissible on the ground
of failure to exhaust domestic remedies.
- As
to the further question whether there are any special circumstances
which absolve the applicant from his normal obligation to exhaust
domestic remedies, the Court notes in particular that, like Mr Ali –
but unlike Mr Agalar and Mr X – Mr Abdollahpour did not apply
for free legal aid to the competent national legal aid authorities,
the County Governor and (on appeal) the Civil Affairs Authority. It
does not appear that the applicant in the present case took any steps
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 that it would have been entirely futile for him to apply
for legal aid (see Ali, cited above, § 71). Whilst the
Court had specifically invited the parties to address the question of
exhaustion of domestic remedies in the proceedings before it, it does
not appear that the applicant even enquired about this matter.
Finding no grounds for distinguishing between the present case and
that of Ali (cited above), it 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
