A.M.E. v. THE NETHERLANDS
Inadmissible
Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra
1. The applicant claims to be a Somali national, born in 1994. At the time of the introduction of the application, he was in the Netherlands. He is represented before the Court by Ms J. van Veelen-de Hoop, a lawyer practising in Rotterdam. 2. The Government of the Netherlands are represented by their Agent, Mr R.A.A. Böcker, of the Ministry of Foreign Affairs. The Italian Government are represented by their Agent, Ms E. Spatafora, and their CoAgent, Ms P. Accardo. 3. The facts of the case, as submitted by the parties and the Italian Government, may be summarised as follows. Some of the facts are disputed. 4. The applicant claims to hail from Mogadishu and that he belongs to the Gaaljecel clan, a Hawiye sub-clan. He further claims that in August 2008 members of al-Shabaab came to his school where they called upon the applicant and his brother I. to join al-Shabaab. The applicant and I. refused. Some days later, on 17 August 2008, the applicant’s parental home had been attacked and I. killed. Considering that it had been a targeted attack owing to the refusal to join al-Shabaab, the applicant left Somalia on 20 August 2008 and, via Kenya, Uganda, Sudan and Libya, travelled to Italy. 5. On 11 April 2009 the applicant entered Italy in a group of about 200 persons who had landed in Ibleo Pozzallo (Ragusa province). The next day the local police took his fingerprints and registered him as having illegally entered the territory of the European Union. He stated that his name was M.A., that he was a Somali national and that he was born on 1 January 1985. On 14 April 2009, the applicant was transferred to the BariPalese Reception Centre for Asylum Seekers (Centro di Accoglienza per Richiedenti Asilo; “CARA”), where he applied for international protection, giving slightly different personal details, namely that his name was A.M.I., that he was a Somali national and that he was born on 1 January 1990. 6. On an unspecified date, the applicant was granted an Italian residence permit for subsidiary protection under Article 15(c) of the European Union Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (“Qualification Directive”). This residence permit was valid for three years, i.c. until 23 August 2012. On 7 May 2009, the applicant left the Bari-Palese reception centre of his own volition for an unknown destination. 7. On 29 October 2009, the applicant applied for asylum in the Netherlands, stating that his name was A.R.M.E., that he was a Somali national and that he was born in Mogadishu on 28 May 1994. The next day, the Netherlands immigration authorities conducted a first interview (eerste gehoor) with the applicant, during which he declared inter alia that he had travelled by road from Somalia to Kenya from where he had travelled by air, with a stopover in Egypt, to the Netherlands. He wrote down his name, his date and place of birth and his last address, and signed this document. 8. The examination and comparison of the applicant’s fingerprints by the Netherlands authorities generated a Eurodac report on 29 October 2009, indicating that he had been registered in Pozzallo on 13 April 2009 and in Bari on 7 May 2009. 9. On 31 October 2009, a Dublin Claim interview (gehoor Dublinclaim) was held with the applicant. After the results of the Eurodac report had been put to him, he confirmed that he had been in Italy. He had lied about his age in Italy. He had stated that he was an adult. He had further been forced to give his fingerprints. He denied having applied for asylum in Italy and further stated that he had not had shelter or food in Italy. 10. On 1 November 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 November 2009. 11. On 16 April 2010 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 acceded implicitly to that request. 12. The applicant’s asylum request filed in the Netherlands was rejected on 2 June 2010 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 rejected the applicant’s argument that 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. 13. The applicant’s appeal against this decision, filed on 2 June 2010, was rejected on 29 July 2010 by the single-judge chamber (enkelvoudige kamer) of the Regional Court (rechtbank) of The Hague. It rejected, as insufficiently substantiated, the applicant’s claim that the reception of minor aliens in Italy was deficient and also rejected his argument that, in his case, the Italian authorities had fallen short of their international obligations in respect of asylum seekers. It noted inter alia that the applicant had been given the opportunity to apply for asylum in Italy and found that it did not appear that the applicant had no access to adequate legal remedies. As regards the alleged risk of refoulement from Italy to Somalia, the Regional Court considered that he should and could raise this in proceedings in Italy and did not find it established that, where it concerned his possible removal from Italy, he would not be given the possibility to use a legal remedy against removal, including requesting the Court for an interim measure under Rule 39 of the Rules of Court. 14. On 27 August 2010, the applicant filed an objection (verzet) against this ruling with the Regional Court. 15. On 6 September 2010, the Minister of Justice notified the applicant of his intention to transfer the applicant to Italy on 22 September 2010 and not later than 1 November 2010. 16. The application was introduced to the Court on 7 September 2010. On 10 September 2010, the President of the Section decided, under Rule 39 of the Rules of the Court, to indicate to the Netherlands Government that it was desirable in the interest of the parties and the proper conduct of the proceedings before the Court not to remove the applicant to Italy. 17. On 22 December 2010, following a hearing held on 7 December 2010 and apparently after a decision to accept the applicant’s objection of 27 August 2010, a three-judge chamber (meervoudige kamer) of the Regional Court of The Hague examined and rejected the applicant’s appeal of 2 June 2010. The Regional Court held that the applicant had not demonstrated that Italy would fall short of its obligations under the 1951 Refugee Convention or Article 3 of the Convention. This finding was not altered by the fact that, on 10 September 2010, a Rule 39 indication had been given to the Netherlands as this temporary measure could not be interpreted as an indication about the eventual finding on the merits by the Court. 18. On 20 January 2011, the applicant filed a further appeal with the Administrative Jurisdiction Division (Afdeling bestuursrechtspraak) of the Council of State (Raad van State). On 11 November 2011, the Administrative Jurisdiction Division accepted the further appeal, quashed the judgment of 22 December 2010, accepted the applicant’s appeal against the Deputy Minister’s decision of 2 June 2010, and quashed this decision but ordered that its legal effects were to remain entirely intact. In view of the Court’s judgment of 21 January 2011 in the case of M.S.S. v. Belgium and Greece [GC], no. 30696/09, ECHR 2011, it noted that the applicant had relied from the outset on documents containing general information and found that these had not been examined in the manner as described in the M.S.S. v. Belgium and Greece judgment. As it did, however, not find any reason for reaching a different decision in the applicant’s case, the Administrative Jurisdiction Division decided that the legal consequences of the impugned decision of 2 June 2010 were to remain intact. No further appeal lay against this decision. 19. On 18 January 2012, the President of the Section decided that information was required from the Italian Government and a number of factual questions were put to the Government of Italy which concerned the applicant’s situation in Italy before his arrival in the Netherlands. The Italian Government submitted their replies on 12 March 2012 and the applicant’s comments in reply were submitted on 13 May 2012. He stated, inter alia, that he had lied about his age at the time of his initial arrival in Italy as well as when he later applied for asylum, fearing that admitting that he was a minor would entail his separation from his countrymen with whom he had arrived in Italy. The applicant denied having left the Bari-Palese centre of his own volition. He was forced to leave this centre because it was about to be closed down. As no subsequent reception facilities were provided to him, he had been forced to live in the streets in horrendous circumstances. 20. 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.