M.O.S.H. v. THE NETHERLANDS
Inadmissible
Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra
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. 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. 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).