NDIKUMANA v. THE NETHERLANDS
Inadmissible
Alvina Gyulumyan;Johannes Silvis;Josep Casadevall;Luis López Guerra
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. 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. 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: ... 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: ... 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). 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: 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. 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.