THIRD SECTION
DECISION
Application no. 63469/09
M.O.S.H.
against the Netherlands
The European Court of Human Rights (Third Section), sitting on 3 February 2015 as a Chamber composed of:
Josep Casadevall, President,
Luis López Guerra,
Ján Šikuta,
Kristina Pardalos,
Johannes Silvis,
Valeriu Griţco,
Iulia Antoanella Motoc, judges,
and Marialena Tsirli, Deputy Section Registrar,
Having regard to the above application lodged on 2 December 2009,
Having regard to the interim measure indicated on the same date to the Netherlands Government under Rule 39 of the Rules of Court, the fact that this interim measure has been complied with, and that it has been lifted on 16 January 2012,
Having deliberated, decides as follows:
THE FACTS
1. The applicant states that he is a Somali national, born in 1993. At the time of the introduction of the application, he was in the Netherlands. On an unspecified date after 16 January 2012, he was removed to Italy. He was initially represented before the Court by Mr C. Chen, a lawyer practising in Alkmaar, who was succeeded by Ms P. Kramer-Ograjensek, a lawyer practising in Sittard.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. On 17 May 2009, the applicant applied for asylum in the Netherlands under the provisions of the Aliens Act 2000 (Vreemdelingenwet 2000), stating that his name was M.O.S.H., that he was a Somali national and that he was born in Mogadishu in 1993. The examination and comparison of his fingerprints by the Netherlands authorities generated a Eurodac report, indicating that on 29 September 2008 he had entered Italy where on 4 November 2008 he had applied for asylum.
4. In his interviews with the Netherlands immigration authorities he stated, inter alia, that he had arrived in Lampedusa (Italy) on 29 September 2008 and that under another identity – namely Y.J.N., born in 1989 – he had been granted a residence permit in Brindisi (Italy) on 27 January 2009 with a validity of three years. He had also been provided with an Italian travel document for refugees. After his arrival in the Netherlands, he had given these documents to a person who had taken them to Italy. The applicant further stated that, directly after having taken out of the water near Lampedusa, he had been taken to a reception centre in Policoro where he had stayed for two weeks and he had subsequently been taken to another centre in Brindisi where he had stayed for another three months pending the outcome of his request for a residence permit. After having obtained this permit, he had been asked to leave the reception centre which he had done. After having stayed in Florence and Turin, he had traveled to the Netherlands. He had told the Italian authorities that he was twenty years old because he had wanted to work in Italy. He had not succeeded in finding work and had given his real age to the Netherlands authorities.
5. On 21 May 2009, the Deputy Minister of Justice informed the applicant of her intention to reject his asylum request. The applicant filed his written comments (zienswijze) on this intention on 25 June 2009.
6. On 17 June 2009 the Netherlands authorities requested the Italian authorities to take back the applicant under the terms of Article 16 § 1 (c) of Council Regulation (EC) no. 343/2003 of 18 February 2003 (“the Dublin Regulation”). As the Italian authorities failed to react to that request within two weeks, they were considered under Article 20 § 1 of the Dublin Regulation as having implicitly acceded to that request.
7. The applicant’s asylum request filed in the Netherlands was rejected on 15 July 2009 by the Deputy Minister, who found that, pursuant to the Dublin Regulation, Italy was responsible for the processing of the asylum application. The Deputy Minister found that the applicant had not demonstrated facts and circumstances on the basis of which the Netherlands could not rely on the principle of mutual interstate trust in respect of Italy. The Deputy Minister did not find it established that Italy fell short of its international treaty obligations in respect of asylum-seekers and refugees, and rejected the applicant’s argument that he risked treatment in breach of Article 3 of the Convention in Italy.
8. The applicant’s appeal against this decision, filed on 16 July 2009, and his accompanying request for a provisional measure (voorlopige voorziening) were rejected on 27 November 2009 by the provisional-measures judge (voorzieningenrechter) of the Regional Court (rechtbank) of The Hague sitting in Zwolle. The judge rejected the applicant’s claim that his removal to Italy would be in violation of his rights under Articles 3 and 8 of the Convention and held that the applicant had not established that Italy would fail to respect its international treaty obligations vis-à-vis the applicant.
9. Although possible, the applicant did not file a further appeal with the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State). Such a further appeal does not have automatic suspensive effect. Suspensive effect can be requested by applying for a provisional measure to the President of the Administrative Jurisdiction Division. A request for a provisional measure does not have automatic suspensive effect either.
10. On 9 December 2014, the applicant’s representative informed the Court that the applicant had been removed to Italy by the Netherlands authorities without specifying on what date this removal had taken place. She further stated that she was still in contact with the applicant. Her letter contained no information about the applicant’s whereabouts or current situation.
B. Relevant domestic law and practice
11. The relevant European, Italian and Netherlands law, instruments, principles and practice in respect of asylum proceedings, reception of asylum-seekers and transfers of asylum-seekers under the Dublin Regulation have recently been summarised in Tarakhel v. Switzerland ([GC], no. 29217/12, §§ 28-48, 4 November 2014); Hussein Diirshi v. the Netherlands and Italy and 3 other applications ((dec.), nos. 2314/10, 18324/10, 47851/10 & 51377/10, §§ 98-117, 10 September 2013); Halimi v. Austria and Italy ((dec.), no. 53852/11, §§ 21-25 and §§ 29-36, 18 June 2013); Abubeker v. Austria and Italy ((dec.), no. 73874/11, §§ 31-34 and §§ 37-41, 18 June 2013); Daybetgova and Magomedova v. Austria ((dec.), no. 6198/12, §§ 25 29 and §§ 32-39, 4 June 2013); and Mohammed Hussein v. the Netherlands and Italy ((dec.), no. 27725/10, §§ 25-28 and 33-50, 2 April 2013).
COMPLAINTS
12. The applicant complained that his removal to Italy would be contrary to Article 3 of the Convention in that no reception and care facilities are available for asylum-seekers.
13. The applicant further complained that his removal from the Netherlands to Italy would violate Article 8 of the Convention in that he has a relative living in the Netherlands who is willing to care for him whereas he has no one in Italy.
THE LAW
14. The applicant complained that he, if transferred to Italy, would be exposed to a risk of being subjected to treatment proscribed by Article 3 of the Convention due to the difficult living conditions of asylum-seekers in Italy.
Article 3 of the Convention reads:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
15. The Court observes at the outset that the applicant has not filed a further appeal to the Administrative Jurisdiction Division of the Council of State. Noting that neither a further appeal nor a request for a provisional measure have automatic suspensive effect, the question arises whether a further appeal to the Administrative Jurisdiction Division is an effective remedy which must be exhausted in order to comply with the requirements of Article 35 § 1 of the Convention. On this point the Court would emphasise, in view of the importance which it attaches to Article 3 of the Convention and the possible irreversible nature of the damage which may result if the risk of treatment proscribed by Article 3 materialises, that the effectiveness of a remedy for the purposes of Article 35 § 1 imperatively requires that the person concerned should have access to a remedy with automatic suspensive effect (see Al Hanchi v. Bosnia and Herzegovina, no. 48205/09, § 32 with further references, 15 November 2011; and Čonka v. Belgium, no. 51564/99, §§ 79-83, ECHR 2002‑I). The Court does, however, not find it necessary to determine this question as the application is in any event inadmissible for the following reasons.
16. The Court has given the relevant principles under Article 3 of the Convention most recently in its judgment in the case of Tarakhel (cited above, §§ 93-99 and §§ 101-104), including that to fall within the scope of Article 3 the ill‑treatment must attain a minimum level of severity. The assessment of this minimum is relative; it depends on all the circumstances of the case, such as the duration of the treatment and its physical or mental effects and, in some instances, the sex, age and state of health of the victim.
17. As regards the applicant’s age, which is one of the relevant factors in making this assessment, the Court cannot but take into account that the applicant himself deliberately told the Italian authorities that he was an adult and sought to mislead the authorities. The Court finds that the authorities processing asylum claims must be entitled to rely on the personal information given by the claimants themselves save where there is a flagrant disparity of some kind or the authorities have otherwise been put on notice of a special need for protection. However there is nothing in the present case to suggest that the Italian authorities did not themselves act in good faith in that regard.
18. In any event, as regards the material date, the existence of the alleged exposure to a risk of treatment contrary to Article 3 must be assessed primarily with reference to those facts which were known or ought to have been known to the Contracting State at the time of expulsion. However, if an applicant has not yet been removed when the Court examines the case, the relevant time for assessing the existence of the risk of treatment contrary to Article 3 will be that of the proceedings before the Court (see Saadi v. Italy [GC], no. 37201/06, § 133, ECHR 2008, and A.L. v. Austria, no. 7788/11, § 58, 10 May 2012).
19. Noting that the applicant was removed to Italy on an unspecified date but after he had come of age, he is thus to be considered as an adult asylum-seeker in Italy, even if he has already been granted a residence permit for the purpose of international protection in Italy in the past, as the validity of this permit has expired in the meantime. Consequently, after his removal to Italy he was required to file a fresh asylum request there.
20. It therefore has to be determined whether the applicant’s situation after removal to Italy can be regarded as incompatible with Article 3, taking into account his situation as an asylum-seeker and, as such, belonging to a particularly underprivileged and vulnerable population group in need of special protection (see Tarakhel, cited above, § 97; and M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 251, ECHR 2011).
21. In this connection, the Court has noted that, immediately after having entered Italy in Lampedusa in 2008, the applicant was admitted to a reception centre for asylum-seekers in Policoro and subsequently to a reception centre in Brindisi and that he continued to be provided with accommodation in this reception centre pending the determination of his asylum request. The Court has found no substantiation of the applicant’s claim that he was asked to leave this reception centre as soon as he had been provided with a residence permit and a travel document for refugees. The Court further notes that the applicant has not submitted any information about his current whereabouts and situation.
22. The Court observes that, unlike the applicants in the case of Tarakhel, cited above, who were a family with six minor children, the applicant is an able young man with no dependents and that, as regards transfers to Italy under the Dublin Regulation, the Netherlands authorities decide in consultation with the Italian authorities how and when the transfer of an asylum-seeker to the competent Italian authorities will take place and that in principle three working days’ notice is given (see Mohammed Hussein, cited above, § 30).
23. The Court reiterates that the current situation in Italy for asylum-seekers can in no way be compared to the situation in Greece at the time of the M.S.S. v. Belgium and Greece judgment, cited above, and that the structure and overall situation of the reception arrangements in Italy cannot in themselves act as a bar to all removals of asylum-seekers to that country (see Tarakhel, cited above, §§ 114-115).
24. The Court therefore finds, bearing in mind how he was treated by the Italian authorities after his arrival in Italy in 2008 and his failure to inform the Court of his situation after this removal to Italy, that the applicant has not established that his situation in Italy, whether taken from a material, physical or psychological perspective, entails a degree of hardship severe enough to fall within the scope of Article 3. The Court has found no basis on which it can be assumed that the applicant will not be able to benefit from the available resources in Italy for asylum-seekers or that, in case of difficulties, the Italian authorities would not respond in an appropriate manner.
25. It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and therefore inadmissible pursuant to Article 35 § 4.
26. The applicant further complained that his removal from the Netherlands would be contrary to Article 8 of the Convention in that he has a relative in the Netherlands who is willing to care for him. Article 8 provides in its relevant part:
“Everyone has the right to respect for his private and family life ...”
27. The case file contains, however, no indication that the applicant has raised this complaint, either in form or substance, before the domestic authorities.
28. It follows that this part of the application is inadmissible for non-exhaustion of domestic remedies within the meaning of Article 35 § 1 of the Convention and must be rejected pursuant to Article 35 § 4.
For these reasons, the Court unanimously
Declares the application inadmissible.
Done in English and notified in writing on 26 February 2015.
Marialena TsirliJosep Casadevall
Deputy RegistrarPresident
Full & Egal Universal Law Academy