THIRD SECTION
DECISION
Application no. 5888/10
Yasir Cabi Qadir MUCALIM
against the Netherlands and Malta
The European Court of Human Rights (Third Section), sitting on 14 March 2017 as a Chamber composed of:
Helena Jäderblom, President,
Branko Lubarda,
Luis López Guerra,
Helen Keller,
Dmitry Dedov,
Alena Poláčková,
Georgios A. Serghides, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 29 January 2010,
Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court and the fact that this interim measure has been complied with,
Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court;
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Yasir Cabi Qadir Mucalim, is a Somali national, who was born in 1992 and lives in Almelo. He was represented before the Court initially by Mr P. Bouwman and later by Mr M.P. Ufkes, both of them lawyers practising in Helmond at relevant times.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows
3. On 24 August 2009 the applicant arrived at Schiphol (Amsterdam) Airport where he requested asylum.
4. On 29 August 2009 he was interviewed about his identity, nationality and travel itinerary (eerste gehoor). It emerged that he had lodged a previous asylum request in Malta.
5. A Dublin Claim interview (gehoor Dublinclaim) was held on 31 August 2009 in which the applicant described the conditions in which he had been detained in Malta. Asylum-seekers lived in tents, the camp was overcrowded and sanitary facilities were filthy. He objected to being sent back to Malta as he did not wish to face the same conditions of detention again.
6. On 29 September 2009 the Deputy Minister of Justice (Staatssecretaris van Justitie) rejected the applicant’s asylum request on the ground, in so far as relevant to the case before the Court, that under Article 16 of Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national (“the Dublin Regulation”) the State responsible for examining his application for asylum was Malta and Malta had agreed to take him back.
7. The applicant appealed to the Regional Court (rechtbank) of The Hague on 2 October 2009. As relevant to the case before the Court, he alleged that sending him back to Malta would expose him to conditions of detention violating Article 3 of the Convention. He submitted documents in support of this allegation. At the same time he requested a provisional measure in the form of a stay of deportation.
8. On 15 January 2010 the Regional Court of The Hague (sitting in Zwolle) dismissed both the request for a provisional measure and the appeal, finding that the applicant had failed to make out his case that Malta would fail to meet her Conventional obligations towards him.
9. The applicant lodged a further appeal (hoger beroep) with the Administrative Jurisdiction Division (Afdeling bestuursrechtspraak) of the Council of State (Raad van State) on 22 January 2010, at the same time requesting the President of the Administrative Jurisdiction Division to order a provisional measure in the form of a stay of deportation.
10. On 27 January 2010 the President of the Administrative Jurisdiction Division dismissed the request for a provisional measure on the ground that the applicant’s deportation did not appear imminent.
11. On 29 January 2010 the applicant lodged a new request for a provisional measure, stating that his deportation to Malta had been scheduled for 1 February 2010.
12. On the same day the President of the Administrative Jurisdiction Division gave a decision dismissing the request on the ground that the applicant’s further appeal was unlikely to succeed.
13. On 18 March 2010 the Administrative Jurisdiction Division dismissed the applicant’s further appeal on summary reasoning.
B. Relevant domestic and European law and practice
14. The relevant European, Maltese 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 are set out in Tarakhel v. Switzerland [GC], no. 29217/12, §§ 28-48, ECHR 2014 (extracts); Hussein Diirshi v. the Netherlands and Italy and 3 other applications ((dec.), nos. 2314/10, 18324/10, 47851/10 and 51377/10, §§ 98‑117, 10 September 2013); Mohammed Hussein v. the Netherlands and Italy ((dec.), no. 27725/10, §§ 25-28 and 33-50, 2 April 2013); Suso Musa v. Malta, no. 42337/12, §§ 23-32, 23 July 2013; and Aden Ahmed v. Malta, no. 55352/12, §§ 31-39, 23 July 2013.
C. Factual information submitted by the Maltese Government
15. By letter of 7 March 2012, the Agent of the Maltese Government submitted replies to questions of the Judge Rapporteur (Rule 44 § 3 (a) of the Rules of Court). As relevant to the case now before the Court, these included the following:
“Upon return to Malta in terms of the Dublin Regulation if an applicant is still considered to be an asylum seeker, and if he so wishes, the applicant will be housed in an open centre where he will be provided with shelter and medical care pending the determination of his request for protection in Malta.”
and
“When aliens are returned to Malta, they are not taken into police custody unless it results that an offence (not including their irregular entry into, or exit from, Malta) was committed by them in Malta.
Moreover, aliens who are rejected asylum seekers and who are returned to Malta will not be deprived of their liberty but efforts will be made for them to be returned to their country of origin.”
16. By letter of 28 June 2012, the Agent of the Maltese Government supplemented this information. His letter included the following:
“The applicant applied for refugee status and a Preliminary Questionnaire was filled [in] by the applicant on the 22nd July 2008 and the interview with the Refugee Commissioner was held on the 5th January 2009;
On the 27th January 2009, the applicant was granted Subsidiary Protection and he was released from detention on the 29th January 2009 and was transferred to the open centre. Thus, the applicant was put in detention for six months (from the 12th July 2008 till the 29th January 2009); ...”
17. The applicant did not submit any comments on either letter relevant to the case now before the Court.
COMPLAINTS
18. The applicant’s complaints were the following:
(a) Under Article 1 of the Convention, that his request for help had been refused, which exposed him to the danger of being sent back to Malta and/or his native Somalia where violations of his human rights awaited;
(b) Under Article 2 of the Convention, that he ran the risk of being killed in the internecine strife prevalent in Mogadishu;
(c) Under Article 3 of the Convention, that he would be exposed to inhuman treatment if forcibly returned to Malta and then to Somalia;
(d) Under Article 13, that the Netherlands immigration authorities and tribunals had failed seriously to consider the documents which he had submitted as evidence of the harsh conditions of detention in Malta;
(e) Under Article 18 of the Charter of Fundamental Rights of the European Union, that his right to asylum had been denied;
(f) Under the general principle of European Union law that there should be access to the asylum procedure, that such access was not guaranteed in Malta.
THE LAW
A. Complaint under Article 3 of the Convention
19. The applicant complained that he would be subjected to inhuman conditions of detention (in the context of immigration) if returned to Malta and to the perils of war if sent on from there to Somalia. He relied on Article 3 of the Convention, which provides as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
1. Malta
20. It transpires from the second letter of the Agent of the Maltese Government (see paragraph 16 above) that on 27 January 2009 the applicant was granted subsidiary protection. This removed the threat of refoulement to Somalia at that time (see Abdi Ahmed and Others v. Malta (dec.), no. 43985/13, § 79, 16 September 2014).
21. Moreover, given that the applicant’s asylum proceedings have come to an end and that he has been granted subsidiary protection in Malta, the Court accepts that there is no reason for him to be detained in an immigration context. Thus, as far as the present applicant is concerned, at this time any dispute about the conditions of detention in an immigration context is moot.
2. The Netherlands
22. From the findings set out above it follows that the Court cannot discern any risk of treatment contrary to Article 3 established in the event that the applicant should be forced to return to Malta.
3. Conclusion
23. This part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
B. Other complaints
24. The Court has examined the applicant’s other complaints. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, they are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
C. Rule 39 of the Rules of Court
25. 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.
Done in English and notified in writing on 6 April 2017.
Fatoş AracıHelena Jäderblom
Deputy RegistrarPresident
Full & Egal Universal Law Academy