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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
