NDIKUMANA v. THE NETHERLANDS

THIRD SECTION

DECISION

Application no. 4714/06
Claver NDIKUMANA
against the Netherlands

The European Court of Human Rights (Third Section), sitting on 6 May 2014 as a Chamber composed of:

Josep Casadevall, President,
Alvina Gyulumyan,
Dragoljub Popović,
Luis López Guerra,
Johannes Silvis,
Valeriu Griţco,
Iulia Antoanella Motoc, judges,
and Santiago Quesada, Section Registrar,

Having regard to the above application lodged on 27 January 2006,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Claver Ndikumana, is a Burundian national, who was born in 1973 and lives in Leiden. He was represented before the Court by Mr D. Schaap, a lawyer practising in Rotterdam.

2. The Netherlands Government (“the Government”) were represented by their Agents, Mr R.A.A. Böcker and Mrs J. Schukking, both of the Ministry of Foreign Affairs.

A. The circumstances of the case

3. On 12 March 2000 the applicant arrived at Amsterdam Airport and reported at the asylum application centre (aanmeldcentrum) in Zevenaar. On 21 March 2000 he had a first interview (eerste gehoor) with officials from the Immigration and Naturalisation Service (Immigratie- en Naturalisatiedienst; hereafter “IND”) and requested asylum. He had another interview with the officials of the IND on 22 March 2000. During these interviews the applicant explained that he had come to Amsterdam via Frankfurt Airport in Germany.

4. On 23 March 2000 the IND informed the applicant that it considered his case to fall within the scope of the Convention Determining the State Responsible for Examining Applications for Asylum Lodged in one of the Member States of the European Communities that had been concluded in Dublin on 15 June 1990 (hereafter “the Dublin Convention”; see paragraphs 18-20 below) because he had travelled through Germany.

5. Additionally, the applicant was informed that he would not be provided with any reception facilities. At the material time, the Netherlands had a policy in place according to which asylum seekers in the applicant’s position (so-called “Dublin claimants”) had no access to State-sponsored reception and care facilities for asylum seekers (see paragraphs 13-15 below). Accordingly, the applicant’s request for assistance in the form of food, shelter and medical care was denied. It appears that on 23 March 2000 the police issued to the applicant a card entailing the obligation to report (meldingsregistratiekaart). The card notes two dates, 26 April and 24 May 2000 respectively.

6. On the same day, 23 March 2000, the applicant was informed by the Foundation for Legal Aid in Asylum Cases in North-East Netherlands (Stichting Rechtsbijstand Asiel Noordoost-Nederland, hereafter “the Foundation”), a non-governmental organisation engaged in assisting asylum seekers, that his asylum request would probably be declared inadmissible because pursuant to the Dublin Convention another State was responsible for the examination of that request. He was further informed that in the opinion of the Foundation it would be without avail to institute proceedings against the decision that would probably be taken by the Ministry of Justice (Ministerie van Justitie). This opinion was confirmed in writing in a letter given to the applicant by the Foundation on the same day. This letter also noted:

“The Netherlands authorities have decided not to provide you with reception facilities because there will be a [Dublin] claim in your case. We regret that you are not provided with any reception facilities but, unfortunately, we cannot change this. Proceedings previously instituted against this governmental decision (overheidsbesluit) have been lost.”

7. The applicant left the application centre and went to Amsterdam.

8. The “transfer report” drawn up at the Zevenaar application centre on 21 April 2000 notes that the applicant waited at the centre’s front gate for “several days” before he was admitted into the application centre on that day at 8.30 p.m.

9. On 15 August 2000 the applicant was granted a provisional residence permit valid from 21 March 2000 until 20 March 2001. He was later granted a residence permit for the purpose of asylum for an indefinite period (verblijfsvergunning asiel voor onbepaalde tijd). The document informing him of this last decision was dated 6 April 2004.

10. On 12 May 2005, the applicant requested the Public Prosecutor’s Office (arrondissementsparket) of The Hague to institute criminal proceedings against the Ministry of Justice because of the denial to him of reception facilities from 23 March until 21 April 2000. In his letter the applicant stated that on 23 March 2000 he had been told by the IND that he would be sent to Germany within three months and that in the meantime he would have no right to reception facilities; he had been given the advice to go to a big city such as Amsterdam where there were “many African people” who would be willing to “help him”. The applicant further stated that on 23 March 2000 he had spent the night at Amsterdam central train station and that he had returned to the application centre on 24 March 2000. When he had been denied access to the application centre, he had remained waiting at the centre’s front gate without any food or water. After having stood there the entire day he had fallen down during the night and had been taken into the application centre by security guards. The next day he had been told by application centre officials that he would have to leave the centre or face deportation to his country of origin. In view of this threat he had decided to leave the centre and he had spent the next three weeks living on the streets, trying to survive by all possible means. He had spent most of his nights in underground stations where he had been harassed a number of times by police who had handcuffed and beaten him and on one occasion he had met a man who, after listening to his story, had offered him accommodation. When the applicant had taken this man up on his offer he had been sexually abused by the man under threat of what the applicant believed to be a gun. He had managed to escape and had gone back to the asylum application centre in Zevenaar where he had again been denied admission. He had remained at the front gate the following three days. On the night of 21 April 2000 he had gone towards the nearby railway tracks with the intention to commit suicide but had been prevented from doing so by the police who had taken him into the application centre.

11. The acting chief public prosecutor (fungerend hoofdofficier van justitie) responded to the applicant’s request to institute criminal proceedings against the Ministry of Justice by letter of 21 June 2005 stating that there were no indications of any criminal offences (strafbare feiten) having been committed and that he had therefore forwarded the applicant’s complaint to the director of the IND. By letter of 24 January 2006, the IND notified the applicant that there had not been any irregularities in the processing of his asylum application and that neither the IND nor the Minister for Immigration and Integration (Minister van Immigratie en Integratie) could be held responsible for whatever hardship he had suffered. Furthermore, the applicant was informed that in 2000, persons whose request of asylum was subject to the Dublin Convention had been refused shelter and food unless there were “reasons (i.e. medical situation)” which would have necessitated proper accommodation and care. In the applicant’s case, no such reasons had been mentioned by him during his interview.

B. Domestic law

12. Until 1 April 2001, the admission, residence and expulsion of aliens were regulated by the Aliens Act 1965 (Vreemdelingenwet 1965). Further rules were laid down in the Aliens Decree (Vreemdelingenbesluit), the Regulation on Aliens (Voorschrift Vreemdelingen) and the Aliens Act Implementation Guidelines (Vreemdelingencirculaire).

13. At the relevant time, the provision of reception facilities was laid down in the Asylum Seekers and Other Categories of Aliens (Provisions) Regulations 1997 (Regeling verstrekkingen asielzoekers en andere categorieën vreemdelingen 1997, hereafter “Rva 1997”). The Rva 1997 granted asylum seekers, in principle, a right to reception facilities. On 12 October 1998 a new provision added to the Rva 1997 entered into force (see the Official Gazette (Staatscourant) 1998, no. 194), which read as follows:

“Section 2a

...

2. These Regulations do not apply to asylum seekers in respect of whom the Minister has requested, or will request, [transfer] to another State, party to the Convention Determining the State Responsible for Examining Applications for Asylum Lodged in one of the Member States of the European Communities (Dublin, 15 June 1990), until such time as this request is rejected by the other State.”

14. This amendment of the Rva 1997 was repeated and further clarified in the Aliens Act Implementation Guidelines 1994, which clarification included the following:

“Chapter B7/6.1.1

...

If, in the IND’s view, Dublin claimants find themselves in very acute humanitarian need, the IND will notify the Central Agency for the Reception of Asylum Seekers (Centraal Orgaan opvang asielzoekers, hereafter “COA”) hereof and advise the COA to provide reception facilities despite the Dublin claim.”

15. On 21 November 2002 section 2a of the Rva 1997 ceased to apply (see Official Gazette 2002, no. 223).

C. European Union law

1. The Dublin Convention

16. The Dublin Convention provided for measures to ensure that asylum seekers had their applications examined by only one of the Member States and that they were not referred successively from one Member State to another. Articles 4 to 8 set out the criteria for determining the single Member State responsible for examining an application for asylum. The Netherlands and Germany were both signatory States.

17. Article 7 of the Dublin Convention, in its relevant part, read as follows:

“Article 7

1. The responsibility for examining an application for asylum shall be incumbent upon the Member State responsible for controlling the entry of the alien into the territory of the Member States, except where, after legally entering a Member State in which the need for him or her to have a visa is waived, the alien lodges his or her application for asylum in another Member State in which the need for him or her to have a visa for entry into the territory is also waived. In this case, the latter State shall be responsible for examining the application for asylum.”

18. The Dublin Convention has been superseded by 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”), which, in its turn, has been superseded by Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013.

2. The Reception Directive

19. Directive 2003/9 of 27 January 2003, laying down minimum standards for the reception of asylum seekers in the Member States (“the Reception Directive”) requires that Member States ensure a dignified standard of living to all asylum seekers, paying specific attention to the situation of applicants with special needs or who are detained. It regulates matters such as the provision of information, documentation, freedom of movement, healthcare, accommodation, schooling of minors, access to the labour market and to vocational training. It also covers standards for persons with special needs, minors, unaccompanied children and victims of torture.

20. The deadline for transposition of the Reception Directive by the Netherlands expired on 6 February 2005.

COMPLAINTS

21. The applicant complained of a violation of Articles 2 and 3 of the Convention in that he was forced to live, between 23 March 2000 and 21 April 2000, without food, shelter and medical care.

22. Invoking Article 14 the applicant complained that he would not have been sent to live on the streets without any assistance if he had not been an asylum seeker.

THE LAW

23. The applicant’s complaints relate to his living conditions during the time that the authorities were examining his position under the Dublin Convention.

24. The Government dispute the admissibility of the application.

A. Exhaustion of domestic remedies

25. The Government submitted that the applicant had not complied with the requirement to exhaust domestic remedies and that the application should accordingly be declared inadmissible.

26. They submitted that it was unlikely that the applicant had not been informed of the circumstances under which access to reception facilities could be granted to Dublin claimants. Moreover, aliens who were sent away from reception facilities were asked whether they considered themselves to be in acute humanitarian need and in instances where an alien turned up at a centre in urgent need of medical attention, a doctor would be consulted and the alien could be admitted on his or her recommendation.

27. The applicant had had the opportunity – during the whole period in issue – to lodge a request for reception facilities with the COA (Central Agency for the Reception of Asylum Seekers, see paragraph 13 above), which in its turn would have had the possibility to obtain the IND’s advice on whether the applicant’s situation was one of acute humanitarian need; the COA could have decided to grant reception facilities even if the IND had advised against it. In the event of a refusal by the COA, the applicant would have been able to object (bezwaar) to this decision and, if his objection was dismissed, he would have been able to lodge an appeal (beroep) to the Regional Court (rechtbank) and a further appeal (hoger beroep) to the Administrative Jurisdiction Division of the Council of State (Afdeling Bestuursrechtspraak van de Raad van State). The applicant could further have applied for a provisional measure (voorlopige voorziening) to the effect that he be provided with reception facilities whilst these proceedings were pending. The Government submitted a judgment of the Arnhem Regional Court in which a Dublin claimant had applied for just such a provisional measure in order to obtain reception facilities. However, in that case the provisional measure had been refused.

28. The Government further submitted that, in the alternative, the applicant could have initiated civil proceedings for tort. The procedure chosen by the applicant – i.e. initiating criminal proceedings by lodging a criminal complaint – was the least obvious course of action since the authorities had acted in compliance with the applicable law and therefore it had been virtually certain that the Public Prosecution Service would not have been able to assist the applicant. Furthermore, it had only been in 2005 that the applicant had submitted his complaint, which suggested acquiescence on his part.

29. The Government concluded that according to the available information the applicant had not voiced any complaints about the denial of access to the reception facilities during the time that he was excluded from them or in the course of his asylum proceedings when he had been in regular contact with legal advisers. As a consequence, there had never been any investigation into the applicant’s complaints at the time and given the amount of time elapsed since the alleged events it was difficult to find any concrete information on the exact course of events.

30. The applicant submitted that when he had arrived in the waiting room of the Zevenaar application centre for his first interview with the IND, there had been persons present there offering legal assistance; yet at no point had he been informed about the COA or where he could find the COA in time of need. In addition, when he had been ordered to leave the premises of the application centre he had complained to the persons offering legal assistance that he would not be able to live on the streets without any humanitarian assistance. However, these persons had convinced him that it would be without avail to object to the IND’s decision. He further submitted a letter from the Foundation, which also noted that they could not help him receive humanitarian assistance since other proceedings against such decisions of the IND – i.e. to deny reception facilities – had met with failure (see paragraph 6 above). Furthermore, he had never received any written or oral information about a hardship clause or about the possible legal procedures open to him to challenge the IND’s decision not to provide him with reception facilities. In this respect he submitted that he had been in good health at the time of his first interview, which had made him ineligible for humanitarian assistance at that time, and that during the days he had spent outside the front gate of the application centre the authorities had failed to examine his condition.

31. As to why he had not raised his complaints until May 2005, the applicant submitted that it had not been until a few weeks into the asylum proceedings that he had started to feel different, that by the end of 2001 his health had deteriorated, that he had had to see a doctor who had prescribed anti-depressants, and that in 2002 he had been sent to a psychiatric hospital. In the course of his therapy he had discovered that his physical and mental illness had resulted from the period during which he had been waiting for his transfer to Germany. He further submitted that it had taken him some time to find out about the legal procedures, so that he had sent his letter to the Public Prosecution Service only in 2005.

32. The Court observes at the outset that the course of action undertaken by the applicant to address his complaints at the national level did not offer much prospect of success, if any. The question is therefore legitimate whether the applicant chose to exhaust an effective domestic remedy (see, among many other authorities, Van Oosterwijck v. Belgium, 6 November 1980, § 27, Series A no. 40; Tsomtsos and Others v. Greece, 15 November 1996, § 32, Reports 1996‑V, Iatridis v. Greece [GC], no. 31107/96, § 47, ECHR 1999‑II; and Tarantino and Others v. Italy, nos. 25851/09, 29284/09 and 64090/09, § 29, ECHR 2013 (extracts)). However, the Court sees no need to address it as the application is in any event inadmissible on other grounds.

B. Alleged violation of Articles 2 and 3 of the Convention

33. The applicant alleged that the failure of the State to provide for his basic needs such as water, food and shelter during the time that the authorities were examining his position under the Dublin Convention had violated his right to life under Article 2 and had amounted to inhuman and degrading treatment within the meaning of Article 3 of the Convention. The Articles mentioned provide as follows:

Article 2

“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

(a) in defence of any person from unlawful violence;

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”

Article 3

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

1. The parties’ submissions

(a) The Government

34. The Government submitted that the applicant’s account of the events between 23 March and 21 April 2000 was unsubstantiated. It was very unlikely that an IND official would have told the applicant he would be transferred to Germany within a particular period of time or that he would have been told that he would be sent back to his country of origin if he did not leave the application centre. No mention of the applicant had been made in the incident books (dagrapporten) of the Amsterdam-Amstelland regional police force during the period in issue, nor was there any indication in the IND files of the applicant’s foiled suicide attempt. Moreover, there was no question that if such an incident had taken place it would have been recorded.

35. As to the applicant’s admission to the application centre on 21 April 2000, the Government submitted that in view of the result of the examination of other Member States’ responsibility under the Dublin Convention, the authorities had decided on that date to admit the applicant to the Netherlands asylum procedure in principle even though the examination pursuant to the Dublin Convention had not been fully concluded. It had been possible to inform the applicant of this decision the same day as he had been waiting at the front gate of the application centre at the time.

36. In relation to the applicant’s complaint under Article 3 the Government acknowledged that the applicant had been classified as a Dublin claimant and that he therefore did not have any right to reception or other benefits, at the material time. They further submitted that this policy flowed from an anticipated influx of asylum seekers, who had been expected to number 60,000 to 67,000 in 1999. In view of this number certain measures had been imposed such as the denial of reception facilities to specific groups of asylum seekers including Dublin claimants. The Government conceded that, in principle, it had not been possible for the applicant to generate means of subsistence by lawful means. However, it had remained possible for persons falling within those groups to receive reception facilities in case of acute humanitarian need (see paragraph 27 above).

37. Referring to Pančenko v. Latvia ((dec.), no. 40772/98, 28 October 1999) the Government argued that the applicant’s living conditions between 23 March 2000 and 21 April 2000 had not attained a minimum level of severity and, referring to O’Rourke v. the United Kingdom ((dec.), no. 39022/97, 26 June 2001) and Bonger v. the Netherlands ((dec.), no. 10154/04, 15 September 2005) that the Convention did not establish a right to shelter or social security.

38. They maintained that the refusal to grant reception facilities had not been, in itself, an exceptional circumstance so as to attain the minimum level of severity needed to fall within the scope of Article 3. Furthermore, the applicant had failed adequately to demonstrate or adduce substantial evidence supporting the alleged events or his allegations that he had suffered inhuman or degrading treatment as a result of the authorities’ refusal to grant him reception facilities. He had also failed to demonstrate that a violation of Article 3 was likely to result from the refusal to grant access to reception facilities. It had not been established that the applicant had been experiencing acute humanitarian need on the occasions when he was standing outside the front gate of the application centre, so the Government argued.

39. Furthermore, an informal network had been in place to look after asylum seekers and in most cases the organisation connected to this network was able to provide shelter and other necessities. This was, however, not an official arrangement.

(b) The applicant

40. The applicant maintained that the authorities’ refusal to provide him with any of his basic needs such as water, food and shelter, instead sending him to live on the streets with the knowledge that he would have no lawful way of providing for himself, constituted a violation of Article 3 of the Convention. He further stated that his case was not similar to Pančenko (cited above) since he was not complaining about being denied a certain standard of living but about the very essentials a person needed in order to stay alive. Nor was it similar to O’Rourke (cited above) since he had not once refused assistance. He submitted that during the days he spent outside the front gate of the application centre prior to 21 April 2000, he had been told several times to find a solution for his problems himself since no one else was going to find one for him.

2. The Court’s assessment

(a) General principles

41. Article 3 enshrines one of the fundamental values of the democratic societies making up the Council of Europe and it makes no provision for exceptions to the prohibition of torture and of inhuman or degrading treatment or punishment under the terms of the Convention (see, among many other authorities Soering v. the United Kingdom, 7 July 1989, § 88, Series A no. 161; Chahal v. the United Kingdom, 15 November 1996, § 96, Reports of Judgments and Decisions 1996‑V; Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, no. 13178/03, § 48, ECHR 2006 XI; and M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 218, ECHR 2011).

42. In order to fall within the scope of Article 3, the ill-treatment must attain a minimum level of severity, the assessment of which depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Raninen v. Finland, 16 December 1997, § 55, Reports 1997‑VIII; Saadi v. Italy [GC], no. 37201/06, § 134, ECHR 2008; and M.S.S. v. Belgium and Greece, cited above, § 219).

43. Article 3 does not oblige the Contracting States to give asylum seekers financial assistance to enable them to maintain a certain standard of living (see Müslim v. Turkey, no. 53566/99, § 85, 26 April 2005 and M.S.S. v. Belgium and Greece, cited above, § 249), nor can this provision be interpreted as obliging the Contracting States to provide everyone within their jurisdiction with a home (see, mutatis mutandis, Chapman v. the United Kingdom [GC], no. 27238/95, § 99, ECHR 2001‑I, and more recently, M.S.S. v. Belgium and Greece, loc. cit., § 249).

44. However, in M.S.S. v. Belgium and Greece, cited above, the Court stated that it did not exclude the possibility that the responsibility of the State under Article 3 might be engaged in respect of treatment where an applicant, who was wholly dependent on State support, found himself faced with official indifference in a situation of serious deprivation or want incompatible with human dignity (§ 253). In that case, the applicant, an asylum seeker, and as such “a member of a particularly underprivileged and vulnerable population group in need of special protection”, had spent months living in a state of the most extreme poverty, unable to cater for his most basic needs: food, hygiene and a place to live. In addition, the Court noted the applicant’s ever-present fear of being attacked and robbed and the total lack of any likelihood of his situation improving (§ 254). It held that the conditions in which the applicant was living reached the Article 3 threshold and found Greece to be responsible for the breach of that Article due to the inaction of the Greek authorities despite their positive obligations under both the European Reception Directive and domestic legislation regarding the provision of accommodation and decent material conditions to asylum seekers (§ 264). The Court also found Belgium to be in breach of Article 3 because, inter alia, it had transferred the applicant to Greece and thus knowingly exposed him to living conditions which amounted to degrading treatment (§ 367) (see also S.H.H. v. the United Kingdom, no. 60367/10, § 67, 29 January 2013).

(b) Application of the above principles in the present case

45. Before turning to the Netherlands authorities’ obligations under the Convention the Court notes that pursuant to the national legislation applicable at the relevant time the applicant had no right to reception facilities (see paragraphs 13-14 above) and that the respondent State was not yet under a positive obligation under the European Reception Directive to provide for asylum seekers’ most basic needs (see paragraphs 19-20 above).

46. The applicant does not deny that there were informal charitable structures in place that offered assistance to asylum seekers in the applicant’s position as the Government state. In the circumstances, which include a delay of no less than five years before the applicant lodged his complaint with the public prosecutor (see paragraph 10 above), the Court considers that it has insufficient evidence to assume that the applicant had to live on the streets for an uninterrupted period from the day he was sent away from the application centre, 23 March 2000, up until the moment he presented himself at the gate of the application centre on 19 April 2000. In respect of the alleged physical and sexual abuse before 19 April 2000 the Court finds that the information in its case file does not allow it to accept the applicant’s allegations as fact. The same finding applies to the alleged foiled suicide attempt on 21 April 2000. It has however remained uncontested that the applicant stayed at the gate of the application centre from 19 April until 21 April 2000, i.e. for the duration of two nights; this the Court accepts as established.

47. Having regard to the fact that the applicant did not avail himself of any of the official remedies to request reception (see paragraph 27 above) the Court finds that the authorities could have only become aware of the applicant’s needs when he presented himself at the gate on 19 April 2000. Given that the authorities offered him reception two nights later, it cannot be said that the applicant was faced with official indifference in a situation of serious deprivation or want incompatible with human dignity. On the contrary, the authorities’ admission of the applicant to the application centre thus prevented any possible deterioration of his circumstances.

48. It follows that 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.

49. In the light of that conclusion and the circumstances of the case, the Court finds that there is no need to examine the applicant’s complaint under Article 2.

C. Alleged violation of Article 14 of the Convention taken together with Articles 2 and 3

50. The applicant complained that he would not have been sent to live on the streets without any assistance if he had not been an asylum seeker. He relied on Articles 2 and 3 taken together with Article 14 of the Convention.

51. The Government disputed this. They argued that since, in their opinion, the applicant’s complaints under Articles 2 and 3 did not fall within the scope of these provisions, Article 14 of the Convention could not be invoked.

52. In the light of all the material in its possession, and in so far as the matter complained of is within its competence, the Court finds that it does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

53. It follows that 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.

For these reasons, the Court by a majority

Declares the application inadmissible.

              Santiago QuesadaJosep Casadevall
RegistrarPresident

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