THIRD SECTION
DECISION
Application no. 50613/12
Amina SAID GOOD
against the Netherlands
The European Court of Human Rights (Third Section), sitting on 23 January 2018 as a Committee composed of:
Luis López Guerra, President,
Dmitry Dedov,
Jolien Schukking, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 30 July 2012,
Having regard to the factual information submitted by the respondent Government and the submissions in reply filed by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Ms Amina Said Good, is a Somali national, who was born in 1950 and lives in Almelo. She was represented before the Court by Ms R.L.J. Reijnen, a lawyer practising in Geleen.
2. The Netherlands Government were represented by their Agent, Mr R.A.A. Böcker, and their Deputy Agent, Ms K. Adhin, both of the Ministry of Foreign Affairs.
A. The circumstances of the case
3. The facts of the case, as submitted by the applicant, may be summarised as follows.
4. The applicant’s first asylum application in the Netherlands, which she lodged in May 2009, was rejected by final decision of 22 February 2010. She was placed in immigration detention in February 2011 and lodged a second asylum application in March 2011. On 5 April 2011 the Regional Court (rechtbank) of The Hague, sitting in Maastricht, declared the placement in immigration detention unlawful as there were no prospects of the applicant being removed to Somalia within a reasonable time, given that it was not in dispute that she would not leave the Netherlands voluntarily and that forced removal was not possible at that time. Her immediate release was ordered.
5. The second asylum application was also rejected, as was the appeal which the applicant lodged against that rejection. On 17 May 2011, while a further appeal in the asylum proceedings was pending before the Administrative Jurisdiction Division of the Council of State (Afdeling bestuursrechtspraak van de Raad van State), the applicant applied to the Central Agency for the Reception of Asylum Seekers (Centraal Orgaan opvang asielzoekers; hereafter “the Central Agency”) to provide her with reception facilities as she had nowhere to stay but could also not be expelled. The Central Agency refused the application for the reason that under the legislation in force the applicant, as a rejected asylum-seeker, was not entitled to such facilities. Moreover, the fact that the applicant could, as she claimed, not be expelled did not amount to highly exceptional circumstances on the basis of which the Central Agency would nevertheless be obliged to make facilities available.
6. On 25 July 2011 the Administrative Jurisdiction Division dismissed the applicant’s further appeal against the rejection of her second asylum application.
7. In an appeal to the Regional Court of The Hague, sitting in Maastricht, against the Central Agency’s decision not to provide her with reception facilities, the applicant argued that she was in acute humanitarian need due to health problems. For this reason she had also applied for a deferral of departure for reasons of health under section 64 of the Aliens Act 2000 (Vreemdelingenwet 2000; if granted, such deferral would entitle the applicant to reception facilities including health care), but no decision had been taken yet on that application. In the course of the proceedings before the Regional Court the applicant submitted documents from doctors and other persons assisting her from which it appeared that she was suffering from, inter alia, osteoarthritis in both knees, could only walk with crutches and was taking morphine against the pain. Both knees required replacement surgery. Surgery on the right knee, which required it most urgently, was possible on 17 November 2011; however, as the applicant was homeless and had exhausted all possibilities of temporarily staying with friends, the surgery would not be able to go ahead since the required post‑operative rehabilitation could not take place while the applicant was living on the streets.
8. The Regional Court dismissed the appeal on 18 November 2011. It held, in so far as relevant, that it had not appeared that the applicant was in a medical emergency situation such that a failure to provide immediate treatment at the present stage of her condition would lead to death, disability or another form of serious psychological and/or physical damage. It had further not appeared that the applicant’s medical problems and their treatment were linked to the reception facilities which the Central Agency would be able to provide. In this context the Regional Court noted that under section 10 of the Aliens Act 2000 the applicant was entitled to treatment that was medically necessary. The fact that she was homeless did not, having regard to the nature of her medical complaints, lead to the conclusion that such treatment was not possible.
9. The applicant lodged a further appeal to the Administrative Jurisdiction Division, submitting that she found herself in acute humanitarian need due to a combination of factors, namely her medical situation of being severely disabled, the fact that she was alone and living on the streets, as well as the fact that although knee replacement surgery could take place (and in the meantime one knee had been replaced) it was not possible to rehabilitate if no reception facilities were provided.
10. The Administrative Jurisdiction Division rejected the further appeal on 30 May 2012 with summary reasoning.
11. Following the first knee replacement surgery, the applicant stayed with a Somali woman whose address she could not remember. It appears that the applicant had knee replacement surgery on her second knee in July 2012. The surgeries and rehabilitation were paid for by the Health Care Insurance Board (College voor zorgverzekeringen), an administrative body which, at the relevant time, paid medical professionals for medically required health care they had provided to persons residing unlawfully in the Netherlands when those persons were not themselves able to pay for the care received.
B. Developments following the lodging of the application
12. On 12 September 2012 the Court put a number of questions to the Government concerning the applicant’s living conditions in the Netherlands. On 19 October 2012 the Government informed the Court that the Medical Advisor’s Office of the Immigration and Naturalisation Service (Bureau Medische Advisering van de Immigratie- en Naturalisatiedienst) had been requested to assess the applicant’s medical situation and that the applicant was – as of 2 August 2012, as appears from documents subsequently submitted to the Court by the applicant – being provided with accommodation pending the examination of her request for deferral of departure for reasons of health.
13. According to the report that was drawn up by the Medical Advisor’s Office on 25 October 2012 and which was submitted by the applicant, she had undergone replacement surgeries on both knees and had recovered well: she had reasonable knee function, was in no pain and had good mobility. She was also suffering from high blood pressure which, without treatment, could lead to a medical emergency in the short term.
14. On 30 October 2012, the Government informed the Court that on the basis of the assessment carried out by the Medical Advisor’s Office, the Minister for Immigration, Integration and Asylum (Minister voor immigratie, integratie en asiel) had granted the applicant a deferral of departure of one year, that is until 30 October 2013. The applicant would be provided with accommodation for the duration of this period. The Government requested the Court to strike the application out of its list of cases in view of this development.
15. In a letter of 22 November 2012 the applicant expressed her desire to pursue the application given that she had had to live on the streets for a long time and whilst in bad health.
16. The deferral of departure granted to the applicant on 30 October 2012 (see paragraph 14 above) was prolonged annually, with the most recent prolongation being valid until 23 March 2018.
C. Relevant domestic law
17. The relevant domestic law and practice are set out in Hunde v. the Netherlands (dec.), no. 17931/16, §§ 25-32, 5 July 2016.
COMPLAINTS
18. The applicant complained that the failure to provide reception facilities to rejected Somali asylum-seekers who could not be expelled, such as herself, amounted to inhuman treatment in breach of Article 3 of the Convention. Her individual situation was even more acute as she was an elderly, single, homeless woman with serious medical problems.
The situation complained of also constituted a violation of Article 5 in that it had put her security at stake.
THE LAW
19. The Court considers that it is not necessary to decide whether the case should be struck out of its list of cases in accordance with the Government’s request and in view of the applicant’s being provided with accommodation, since it is, in any event, inadmissible for the reasons set out below.
A. Complaint under Article 3 of the Convention
20. The applicant complained that the refusal to provide her with reception facilities amounted to inhuman treatment in breach of Article 3 as it was not possible to expel her and she was suffering from serious health problems. Article 3 reads:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
21. The relevant general principles are set out in the decision in the case of Hunde, cited above, at paragraphs 45‑52.
22. The Court notes in the first place that in the abovementioned Hunde decison, it found that Article 3 did not impose an obligation on the Government to provide for more facilities for failed asylum-seekers than those which they had put in place. The question arises whether the particular circumstances of the present case should lead to a different conclusion.
23. The Court observes that it appears that the applicant did not receive reception facilities in the period between 5 April 2011, when she was released from immigration detention, and 2 August 2012, when she was provided with accommodation pending the assessment of the question if she was eligible for a deferral of departure (see paragraphs 4 and 12 above). During this time she sometimes lived on the streets but also stayed with friends. Although the applicant feared that such would be the case, this situation nevertheless did not stand in the way of her being enabled to undergo two knee replacement surgeries, which were paid for by the State. Other than that she stayed with a fellow Somali woman after the first operation (see paragraph 11 above), the case file does not disclose where exactly the applicant spent the time following the surgical interventions. In any event, the fact that she was not entitled to reception facilities at that time does not appear to have hampered the rehabilitation process, the facilities for which were also financed by the State, as the applicant was subsequently found to have recovered well, with reasonable knee function and improved mobility (see paragraph 13 above). In these circumstances, the Court considers that it has not been established that the applicant was subjected to treatment which attained the threshold of severity engaging Article 3 of the Convention.
24. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 (a) and must be rejected, pursuant to Article 35 § 4 of the Convention.
B. Complaint under Article 5 of the Convention
25. The applicant further complained under Article 5 of the Convention that her right to security of person had been violated. The relevant part of the first sentence of Article 5 § 1 provides:
“1. Everyone has the right to liberty and security of person. ...”
26. The Court notes that this complaint concerns neither a deprivation of liberty nor “security of person” within the meaning of Article 5 as interpreted by the Convention organs (see Bozano v. France, 18 December 1986, §§ 54 and 60, and Dyer v. the United Kingdom, no. 10475/83, Commission decision of 9 October 1984, Decisions and Reports 39, p. 256). Even assuming that the applicant may be considered as having exhausted domestic remedies in this respect – which is doubtful –, the Court considers that no appearance of a violation of Article 5 of the Convention is disclosed by the facts of the case.
27. It follows that this part of the application is likewise manifestly ill-founded within the meaning of Article 35 § 3 (a) and must be rejected, pursuant to Article 35 § 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 15 February 2018.
Fatoş AracıLuis López Guerra
Deputy RegistrarPresident
Full & Egal Universal Law Academy