Information Note on the Court’s case-law No. 144
August-September 2010
Hamidovic v. Italy (dec.) - 31956/05
Decision 13.9.2011 [Section II]
Article 34
Hinder the exercise of the right of petition
Inadvertent but not irremediable failure to comply with interim measure indicated in respect of Article 8: inadmissible
Facts – The applicant, a national of Bosnia and Herzegovina of Roma origin, was married in Rome in 1991 and had five children. A deportation order was made against her in July 2005 because she was living in Italy illegally. She was placed in a temporary holding centre. She lodged an application with the Court by fax on Friday 2 September 2005 and applied for protection under Rule 39 of the Rules of Court, alleging that her deportation would be violate her right to respect for her family life under Article 8 of the Convention. The same day the Court decided to apply Rule 39 and sent a fax at 6.36 p.m. to the Permanent Representation of Italy to the Council of Europe. By a fax of 6 September 2005 the applicant’s representative informed the Registry of the Court that he had sent a fax to the holding centre at 1.08 p.m. on 5 September 2005, informing them that the Court was applying Rule 39 to the applicant. On 6 September 2005 the applicant was expelled to Bosnia and Herzegovina. On 8 September 2005 she filed a request with the Italian Ministry of the Interior for special authorisation to return to Italy. At the request of the Permanent Representation of Italy in Strasbourg, on 9 September 2005 the Ministry of the Interior sought clarification from the police headquarters in Rome regarding the transmission of the information concerning the application of the interim measure by the Court. They replied that because the relevant notice had not been flagged as urgent and no prior warning of it had been received, it had been processed as ordinary mail, which would explain the delay in the transmission of the information to the relevant services. The Italian Government then took steps to allow the applicant back into Italy, where she returned in November 2006. In March 2007 the deportation order was cancelled.
Law – Article 34: There had been a regrettable delay by the Permanent Representation of Italy in Strasbourg in sending the information concerning the application of Rule 39 to the Interior Ministry, notably during the morning of 5 September 2005, and subsequently on the part of the Ministry in forwarding it to the competent authorities. However, the lapse of time between the application of the interim measure and the applicant’s deportation was relatively short – just one working day. In addition, regarding the transmission of the interim measure to the holding centre by the applicant’s representative at 1.08 p.m. on Monday 5 September, the holding centre had no power to override the deportation order. Also, unlike in other cases, the fact that the Italian authorities had disregarded the Rule 39 measure did not lead to the loss of contact between the applicant and her counsel. Nor did it undermine the possibility for the Court to properly ascertain whether the applicant’s right to respect for her private and family life had been affected. On the contrary, although attributable to a regrettable mistake on the part of the Government in its handling of the domestic procedure, the failure to act on the interim measure had no irreversible consequences that prevented the Court from duly proceeding with its examination of the application and protecting the applicant from a potential violation of Article 8 of the Convention. Furthermore, the Government had immediately taken steps to elucidate the circumstances of the case and permit the applicant’s return to Italy. Lastly, the risk to the applicant’s Convention rights did not concern any of the “core” rights under the Convention, such as the right to life (Article 2) or the right not to be subjected to torture or inhuman treatment (Article 3).
Conclusion: inadmissible (manifestly ill-founded).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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