THIRD SECTION
DECISION
Application no. 199/10
by Saif Ali Hassan Yousif Darwash AHMED AL SAADY
against the Netherlands
The European Court of Human Rights (Third Section), sitting on 14 September 2010 as a Chamber composed of:
Josep Casadevall, President,
Elisabet Fura,
Corneliu Bîrsan,
Alvina Gyulumyan,
Egbert Myjer,
Ineta Ziemele,
Ann Power, judges,
and Santiago Quesada, Section Registrar.
Having regard to the above application lodged on 4 January 2010,
Having regard to the information submitted by the Government of Greece and the Government of the Netherlands,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Saif Ali Hassan Yousif Darwash Ahmed Al Saady, is an Iraqi national who was born in 1981 and, at the time of the introduction of the application, staying in the Netherlands. He was represented before the Court by Mr A.H. Hekman, a lawyer practising in Utrecht.
The circumstances of the case
The facts of the case, as submitted by the applicant as well as by the Government of Greece and the Government of the Netherlands, may be summarised as follows.
The applicant entered the Netherlands on 4 March 2007 and, on 3 April 2007, applied for asylum. The Deputy Minister of Justice (Staatssecretaris van Justitie) rejected this request on 3 September 2007, holding that, pursuant to Council Regulation (EC) No. 343/2003 of 18 February 2003 (“the Dublin II Regulation”), Greece was responsible for determining the asylum request. The applicant's appeal to the Regional Court (rechtbank) of The Hague, sitting in Zwolle, was rejected on 3 August 2009. The applicant's subsequent appeal to the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State) was rejected on 30 September 2009. No further appeal lay against this ruling.
On 22 December 2009, the Deputy Minister informed the applicant, in a letter to his lawyer, that the applicant's transfer to Greece would take place on 3 February 2010 at the latest and that, to this end, the police had been instructed to apprehend the applicant on 20 January 2010 and to take him to the Zestienhoven aliens' removal centre (uitzetcentrum).
On 29 January 2010, the applicant was transferred from the Netherlands to Greece where he arrived at Athens international airport and applied for asylum. He was provided with a provisional residence title for asylum seekers, valid until 5 August 2010. The applicant informed the Greek immigration authorities on 5 February 2010 of his address in Greece. On the same day, the applicant was informed that his asylum application would be heard before the Consultative Asylum Committee on 21 September 2010. He was invited to attend this hearing. No further information about these proceedings or the applicant has been submitted.
COMPLAINTS
In his introductory submissions of 4 January 2010, the applicant complained that his transfer to Greece was contrary to his rights under Article 3 of the Convention. He further alleged a violation of Article 13 of the Convention in respect of the quality of the asylum procedure in Greece.
PROCEDURE BEFORE THE COURT
The application was lodged with the Court on 4 January 2010 by facsimile from the applicant's lawyer, containing a request to indicate to the Government of the Netherlands, under Rule 39 of the Rules of Court, that the applicant should not be transferred to Greece pending the proceedings before the Court. As the facsimile contained no supporting documents, the Court contacted the applicant's lawyer who indicated on 5 January 2010 that the determination of the Rule 39 request could await the arrival by regular mail of the supporting documents. After receipt by mail of these required documents, the Rule 39 request was rejected by the President of the Section on 18 January 2010.
The applicant's lawyer was informed of this decision by letter of 18 January 2010 and asked, in case the applicant wished to pursue the application, to return by 15 March 2010 a duly completed formal application form and other required documents, including an authority for representation. He was further informed that the case-file would be destroyed without being submitted for judicial decision, six months from the date of the Court's letter, unless the duly completed application form would have been received in the meantime.
By letters of the same date, both the Government of the Netherlands and the Government of Greece were informed of this decision. In addition the Netherlands Government were requested to inform the Court when the applicant would be transferred to Greece and the Greek Government were requested to inform the Court of the progress of the applicant's asylum claim in Greece as well as his place of detention, should he be detained on arrival in Greece.
On 21 January 2010, the Netherlands Government informed the Court that the applicant's removal to Greece had been scheduled for 29 January 2010.
The applicant's representative informed the Court on 28 January 2010 that the applicant wished to pursue his application. The applicant's representative was reminded on 5 February 2010 that, as the applicant wished to pursue the application, he should submit a completed formal application form and an authority for representation by 15 March 2010.
On 9 February 2010, having noted that no reaction had been received from the Government of Greece to the request for information in the present case and identical requests made in other similar cases, the Court decided to remind the Government of Greece of the outstanding request. It further decided to put further factual questions to both the Government of the Netherlands and the Government of Greece.
On 23 March 2010, the Netherlands Government submitted their reply to the Court's additional request for factual information and the reply of the Government of Greece, containing inter alia the applicant's stated address in Greece, was submitted on 23 March 2010. Although no application form nor an authority for representation had been submitted, both sets of replies were transmitted for comments to the applicant's lawyer on 1 April 2010.
In his letters of 30 July 2010 and 10 August 2010, the applicant's lawyer informed the Court that he wished to withdraw the application as he had lost contact with the applicant after the latter's removal from the Netherlands.
THE LAW
Rule 36 of the Rules of Court reads, in the relevant part:
“1. Persons, non-governmental organisations or groups of individuals may initially present applications under Article 34 of the Convention themselves or through a representative. ...
4. (a) The representative of the applicant shall be an advocate authorised to practise in any of the Contracting Parties and resident in the territory of one of them, or any other person approved by the President of the Chamber.”
Rule 45 §§ 1 and 3 of the Rules of Court reads as follows:
“1. Any application made under Articles 33 or 34 of the Convention shall be submitted in writing and shall be signed by the applicant or by the applicant's representative. ...
3. Where applicants are represented in accordance with Rule 36, a power of attorney or written authority to act shall be supplied by their representative or representatives.”
Rule 47 §§ 1 and 4 of the Rules of Court provides in its relevant part:
“1. Any application under Article 34 of the Convention shall be made on the application form provided by the Registry, unless the President of the Section concerned decides otherwise. It shall set out ...
4. Failure to comply with the requirements set out in paragraphs 1 and 2 of this Rule may result in the application not being examined by the Court.”
The Court notes that the application was lodged on 4 January 2010 in the form of an introductory letter signed and sent by the applicant's representative who stated that he was acting on the applicant's behalf in the proceedings before the Court. The Court considers that this introductory letter of 4 January 2010 contained sufficient information to interrupt the running of the six-month time-limit set out in Article 35 § 1. Accordingly, the Court accepts the introduction date as being that of the introductory letter of 4 January 2010. The case was therefore introduced within six months of the final decision, namely the ruling given by the Court of Appeal on 30 September 2009 by the Administrative Jurisdiction Division.
The Court further notes that, by letters of 18 January 2010 and 5 February 2010, the applicant's representative was informed about the need to supply, inter alia, a duly completed and signed formal application form and an authority for representation before 15 March 2010 and that failure to do so within a non-extendible period of six months to be counted from 18 January 2010 would result in the destruction of the case file without examination of the case by the Court. The Court lastly notes that, to date, no formal application form nor an authority for representation has been submitted and that the applicant's lawyer has lost contact with the applicant.
As the applicant has never been in contact with the Court directly and introduced his application through his representative Mr Hekman whereas the case file contains no document in which the applicant himself has indicated that he wishes Mr Hekman to file an application with the Court on his behalf, the Court cannot but conclude that there is neither an “application” nor an “applicant” for the purposes of Article 34 of the Convention. Accordingly, it is appropriate to strike the case out of the list.
For these reasons, the Court by a majority
Decides to strike the application out of its list of cases.
Santiago QuesadaJosep Casadevall Registrar President
Full & Egal Universal Law Academy