O.M. v Norway - 888/09 [2010] ECHR 919 (27 May 2010)

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The European Court of Human Rights (First Section), sitting on 27 May 2010 as a Chamber composed of:

Christos Rozakis, President,
Nina Vajić,
Khanlar Hajiyev,
Dean Spielmann,
Sverre Erik Jebens,
Giorgio Malinverni,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,

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,

The applicant, Mr O. M., is an Iraqi national who was born in 1975 and lives in Norway. He is represented before the Court by Mr A. Berntsen, a lawyer practising in Oslo. The Norwegian Government (“the Government”) were represented by Mr M. Emberland, Attorney, Attorney-General's Office (Civil Matters), as Agent.

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

Early May 2006 the applicant arrived in Norway and applied for asylum, without producing a passport or any other travel document that could confirm his identity. In support of his asylum application he stated the following. He was a Sunni Muslim of Kurdish ethnic origin coming from the village of Ingja-w Babilan near Tuz Khurmatu, located in Central Iraq. He submitted that he feared for his life in his home country because of his participation in an Islamic terrorist group, which he had allegedly been compelled to join against his own wishes. He feared both the authorities because of his involvement in the group and its leader.

On 3 December 2007, the Directorate of Immigration rejected the applicant's asylum application finding his account not credible on the whole. Nor did the Directorate deem that general conditions in Iraq suggested that he fulfilled the conditions for asylum.

On 9 October 2008 the Immigration Appeals Board rejected the applicant's appeal against the Directorate's rejection. To its knowledge recruitment to terrorist organisations mostly occurred on a voluntary basis, though it could not be excluded that such recruitment could be forced in certain cases. As for the remainder, the Board endorsed the Directorate's assessment and conclusions as regard the applicant's individual situation.

As to whether the general security situation prevented the applicant's forcible return, the Board noted that, since the applicant's parents had moved to Tuz Khurmatu, it would be natural for him to return there. This town was situated in the so-called “boarder region” in the Governorate of Salah al-Din, in a part of Iraq where in places the Kurdish population was in a majority but which had been under Government control before the invasion in 2003. The boarder region consisted of smaller parts of the Governorates of Ninewah (with the City of Mosul) and Tamim (with the City of Kirkuk), a part of the Salah al-Din Governorate, and smaller parts of the Governorates of Dohuk, Erbil and Diayla. The Kurdish defined the autonomous provinces of Dohuk, Erbil, Sulaimaniya, and the boarder region as Kurdistan. The boarder region had a significantly higher proportion of Arabs and Turkmens than the other three autonomous provinces. There were towns and villages where ethnic groups had co-existed peacefully for generations and there were others with considerable ethic tensions.

According to available country information, during the period from 23 February to 31 May 2008, 87% of all the attacks in the country had been carried out in the five Governorates of Bagdad, Salah al-Din, Ninewah and Diyala, where 42% of the population lived. In other words it was in the areas around Bagdad and in the boarder region that the exposure to attack had been the greatest. A report by the US Department of Defence stated that most attacks had occurred in Bagdad and Ninewah, followed by Salah al-Din and Diyala.

Moreover, Tuz Khurmatu was situated clearly within the part of the boarder area where the Kurds held de facto control, generally assuming political dominance and physical control. As a Kurd the applicant would not be exposed to attacks within this area. Nor were there any other reasons for believing that he would be particularly exposed to attack. The general situation did therefore not constitute a hindrance to return.

The applicant subsequently requested the Board twice to reconsider its decision. The Immigration Appeals Board refused his requests respectively on 23 November 2008 and 13 January 2009, finding no new circumstance warranting it to do so.

The applicant, without referring to any provision of the Convention, complained that, should he be expelled to Iraq, he would risk losing his life.

In their observations of 8 September 2009 on the admissibility and merits of the application, the Government invited the Court to declare it inadmissible under Article 35 § 1 of the Convention on account of the applicant's failure to exhaust domestic judicial remedies. In any event, they argued that the application should be declared inadmissible under Article 35 §§ 3 and 4 as being manifestly ill-founded.

By a letter of 25 November 2009, the applicant's lawyer informed the Court that the applicant had decided to attempt to exhaust remaining domestic remedies in the hope of a successful outcome. If possible, he would prefer that the Court adjourn its examination pending the domestic proceedings. If not, his application ought to be considered as “withdrawn” on procedural ground.

In their observations of 12 January 2010 the Government commented that, whilst the applicant had not yet lodged proceedings before the national courts, it would be open to him to do so any time in future, there being no time limitation in respect of proceedings lodged under the Immigration Act. It would not be a viable solution were the Court to adjourn its examination of the application pending the outcome of such proceedings.

The Government moreover drew the Court's attention to the fact that, according to a statement by the International Organization for Migration dated 7 January 2010, the applicant had applied for voluntary return to his country of origin under its Voluntary Return Programme in Oslo. On this basis the Government asked the Court to strike the applicant's application out of its list of cases.

On 18 January 2010 the applicant's lawyer was requested to inform the Court by 8 February 2010 whether the applicant intended to pursue the application. The Court received no reply to this communication.

In light of the above, the Court finds that the applicant does not intend to pursue his application within the meaning of Article 37 § 1 (a) of the Convention.

Moreover, the Court discerns no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case (Article 37 § 1 in fine).

Accordingly, it is appropriate to lift the interim measure indicated under Rule 39 of the Rules of Court and to strike the case out of the list of cases in accordance with Article 37 § 1 of the Convention.

Decides to lift the interim measure indicated under Rule 39 of the Rules of Court;

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You are here: BAILII >> Databases >> European Court of Human Rights >> O.M. v Norway - 888/09 [2010] ECHR 919 (27 May 2010) URL: http://www.bailii.org/eu/cases/ECHR/2010/919.html Cite as: [2010] ECHR 919