THIRD SECTION
DECISION
Application no. 7149/12
K.O.J.
against the Netherlands
The European Court of Human Rights (Third Section), sitting on 2 June 2015 as a Committee composed of:
Luis López Guerra, President,
Johannes Silvis,
Valeriu Griţco, judges,
and Marialena Tsirli, Deputy Section Registrar,
Having regard to the above application lodged on 1 February 2012,
Having regard to the interim measure indicated to the Netherlands Government under Rule 39 of the Rules of Court and the fact that this interim measure has been complied with,
Having regard to the factual information submitted by the Italian Government and the comments in reply submitted by the applicant,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
1. The applicant, Ms K.O.J., stated that she is a national of Somalia, born in 1991. She lives in the Netherlands. She was represented before the Court by Mr F. Hogewind, a lawyer practising in Amsterdam. The President decided not to disclose the applicant’s identity to the public (Rule 47 § 4).
2. The Dutch Government (“the Government”) were represented by their Agent, Mr R.A.A. Böcker, of the Ministry of Foreign Affairs. The Italian Government were represented by their Agent, Ms E. Spatafora, and their Co-Agent, Ms P. Accardo.
The circumstances of the case
3. The facts of the case, as submitted by the parties and the Italian Government may be summarised as follows. Some facts are disputed.
4. In March 2009, the applicant’s fingerprints were taken in Italy, where she was registered as an asylum seeker. She stated that her name was H.M., and that she was born in Somalia. She was admitted to a reception centre for asylum seekers.
5. In May 2009 the competent territorial commission for the recognition of international protection (Commissione Territoriale per il Riconoscimento della Protezione Internationale) granted the applicant a residence permit for subsidiary protection under Article 15(c) of the European Union Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (“Qualification Directive”). This decision was notified to the applicant. In July 2009, she was provided with a residence permit for an alien having been granted subsidiary protection, valid until June 2012. She was further provided with a travel document for aliens (Titolo di viaggio per stranieri) which was valid until June 2012.
6. In August 2009, the applicant moved to other accommodation, operated under the Protection System for Asylum Seekers and Refugees (Sistema di protezione per richiedenti asilo e rifugiati). According to the Italian Government, the applicant left this accommodation in April 2010 on her own volition and without giving anyone an explanation for so doing. According to the applicant, she was evicted from this accommodation and, until April 2010, lived on the streets in Italy without any assistance whatsoever from the Italian authorities.
7. In May 2010, the applicant applied for asylum in Finland, stating that her name was H.J.B. At the request of the Finnish authorities, the Italian authorities agreed to take the applicant back in accordance with Council Regulation (EC) no. 343/2003 of 18 February 2003 (“the Dublin Regulation”). However, the applicant having left for an unknown destination in the meantime, her transfer from Finland to Italy never took place. In July 2010, the applicant and her husband travelled from Finland to Germany where, later that year, she gave birth to a daughter.
8. In March 2011, the applicant and her daughter entered the Netherlands where the applicant applied for asylum, stating that her name was K.O.J., and that she was a Somalian national.
9. The examination and comparison of the applicant’s fingerprints by the Netherlands authorities in the Eurodac database was unsuccessful due to insufficient fingerprint quality.
10. In her interviews with the Netherlands immigration authorities, she stated inter alia that she had previously applied for asylum in Italy. She further indicated repeatedly that she did not wish to return to Italy.
11. In July 2011, the Netherlands authorities requested the Italian authorities to take back the applicant in accordance with Article 16 of the Dublin Regulation. As the Italian authorities failed to react to that request within two weeks, they were considered to have implicitly acceded to that request.
12. In September 2011, the Netherlands Minister for Immigration, Integration and Asylum Policy (Minister voor Immigratie, Integratie en Asiel) rejected the applicant’s asylum request. The Minister found that, pursuant to the Dublin Regulation, Italy was responsible for the processing of the asylum application. The Minister rejected the applicant’s argument that she and her baby risked treatment in breach of Article 3 of the Convention in Italy. Also in September 2011, the applicant was informed that Italy had agreed to take her back in accordance with Article 16 of the Dublin Regulation.
13. The applicant’s appeal against this decision and the accompanying request for a provisional measure were rejected on 17 November 2011 by the provisional measures judge (voorzieningenrechter) of the Regional Court of The Hague.
14. In December 2011, the applicant filed a further appeal with the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State). On 31 October 2012, the Administrative Jurisdiction Division rejected the applicant’s further appeal. No further appeal lay against this ruling.
15. The application was introduced to the Court on 1 February 2012. On 3 February 2012, the Acting President of the Section decided, under Rule 39 of the Rules of the Court, to indicate to the Netherlands Government that it was desirable in the interest of the parties and the proper conduct of the proceedings before the Court not to remove the applicant and her child to Italy. The Acting President further decided under Rule 54 § 2 (b) to give notice of the application to the Netherlands Government. The Acting President also decided that information was required from the Italian Government and a number of factual questions were put to the Government of Italy (Rule 44 § 3 (a)), which concerned the applicant’s situation in Italy before her arrival in the Netherlands. The Italian Government submitted their replies on 21 and 23 March 2012 and 21 September 2012, and the applicant’s comments in reply were submitted on 13 July 2012 and 22 October 2012.
16. On 8 January 2015, the President of the Section decided to invite the Netherlands Government to submit written observations on the admissibility and merits of the case. The Government submitted their observations on 24 February 2015. These were transmitted on 26 February 2015 to the applicant for the purposes of her comments in reply.
17. On 30 March 2015, the applicant informed the Court that she wanted to withdraw the application as she had been granted an asylum-based residence permit on 27 March 2015.
THE LAW
18. The Court notes that the applicant has been granted a residence permit in the Netherlands. In these circumstances, the matter has been resolved within the meaning of Article 37 § 1 (b) of the Convention. The Court also notes that the applicant does not wish to pursue the application within the meaning of Article 37 § 1 (a) of the Convention. In accordance with Article 37 § 1 in fine, the Court further finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case.
19. In view of the above, it is appropriate to strike the application out of the list of case and, consequently, to discontinue the application of Rule 39 of the Court.
For these reasons, the Court, unanimously,
Decides to strike the application out of its list of cases.
Done in English and notified in writing on 25 June 2015.
Marialena TsirliLuis López Guerra
Deputy RegistrarPresident
Full & Egal Universal Law Academy