THIRD SECTION

DECISION

Application no. 16380/11 Juvenal Patrick NGENDAKUMANA against the Netherlands

The European Court of Human Rights (Third Section), sitting on 5 February 2013 as a Chamber composed of:

Josep Casadevall, President, Alvina Gyulumyan, Corneliu Bîrsan, Ján Šikuta, Luis López Guerra, Nona Tsotsoria, Johannes Silvis, judges, and Marialena Tsirli, Deputy Section Registrar,

Having regard to the above application lodged on 23 February 2011,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Juvenal Patrick Ngendakumana, is a Burundian national, who was born in 1983 and lives in Joure. He was represented before the Court by Mr H.A. Limonard, a lawyer practising in Joure.

2. The facts of the case, as submitted by the applicant, may be summarised as follows. On 6 December 2007 the applicant lodged a third asylum request in the Netherlands, which, in order for its merits to be examined, must, pursuant to article 4:6 of the General Administrative Law Act ( Algemene wet bestuursrecht ), be based on newly emerged facts and/or circumstances (“ nova ”) that warrant a revision of the initial negative decision. The applicant claimed that his marriage to a Dutch citizen, his parenthood and the fact that he was suffering from Post-Traumatic Stress Disorder (PTSD) made him eligible for an asylum-based residence permit.

3. By decision of 15 May 2009 the Deputy Minister of Justice ( Staatssecretaris van Justitie ) rejected this asylum application, considering that the applicant had failed to submit any nova . The fact that he had married a Dutch citizen and that he had a child from another relationship could not be regarded as nova as both his marriage and his parenthood had already been in existence at the time of the proceedings on his second asylum request. He could and should have mentioned those circumstances in his earlier asylum application. The Deputy Minister further found that the applicant’s medical condition would, if treatment were discontinued, not lead to a medical emergency in the short term. Therefore, no issue under Article 3 of the Convention would arise in case of his return to Burundi.

4. The applicant appealed this decision. The Regional Court ( rechtbank ) of The Hague sitting in Groningen dismissed the appeal on 26 March 2010 and upheld the impugned decision.

5. The applicant’s subsequent and final appeal was dismissed by the Administrative Jurisdiction Division of the Council of State ( Afdeling Bestuursrechtspraak van de Raad van State ) on summary grounds on 24 August 2010. Also on 24 August 2010, and pursuant to article 8:79 of the General Administrative Law Act, the ruling of the Division was sent to the lawyer who had represented the applicant.

COMPLAINT

6. The applicant complained under Article 3 of the Convention that there are substantial grounds for believing that he will be subjected to a real risk of treatment contrary to this provision if he were expelled to Burundi where he will not receive the proper medical care for his mental condition.

PROCEDURE BEFORE THE COURT

7. On 23 February 2011, the lawyer representing the applicant sent an application form, printed on his law firm’s stationery, to the Court. This application form was signed “i.o.” ( in opdracht ; the Netherlands equivalent of “ per procurationem ”) by an unidentified person.

8. By letter of 14 March 2011, the Registry informed the applicant’s representative as follows:

“You should return the completed application form and all relevant documents not later than eight weeks from the date of the present letter. In other words, the date on which you send back the completed application form must not be later than 9 May 2011 . Failure to comply with this time-limit will mean that it is the date of the submission of the completed application form rather than that of your first communication which will be taken as the date of the introduction of the application. Your attention is drawn to the fact that it is the date of introduction that is decisive for compliance with the time-limit set out in Article 35 § 1 of the Convention (see para. 18 in enclosed notes to applicants).”

9. Together with the letter of 14 March 2011 the Registry sent an application package to the applicant, containing inter alia Notes for Guidance of Persons wishing to apply to the European Court of Human Rights.

10. On 6 May 2011, the applicant’s representative sent a fax to the Registry asking for an extension of the time-limit for the submission of the application form.

11. By letter of 9 May 2011, the Registry referred to its letter of 14 March 2011 and advised the representative to complete the application as soon as possible. It further stated:

“[...] it will be the date of submission of the original, duly completed application form which will be taken as the date of introduction.”

12. On 24 May 2011 the applicant’s representative submitted an original authority for representation, which was received by the Registry on 30 May 2011. It was duly signed by the lawyer representing the applicant. This authority form had already been sent to the Court by fax on 10 May 2011. The letter dated 24 May 2011 accompanying the original authority form did not contain any explanation for the delay.

13. By letter of 15 June 2011, the Registry acknowledged the receipt of the authority for representation. As regards the application form and with reference to the letter of 9 May 2011, it was pointed out to the applicant’s representative that the application form which the Court had received on 23 February 2011 had not been signed by the representative himself, but by a third person. The representative was asked whether this application form should be considered as the formal application form.

14. By letter of 14 July 2011, the representative requested the Court to clarify what was flawed about the authority for representation.

15. The Registry informed the representative, by letter of 26 July 2011, as follows:

“In reply to your letter of 14 July 2011, I would inform you that the comments in the second paragraph of my letter of 15 June 2011 concerned the formal application form (“ verzoekschriftformulier ”) and not the authority for representation (“ machtiging ”).

You will note from the enclosed copy of the last page of the form sent by your office on 23 February 2011 that it has not been signed by yourself but by a third person. With reference to the contents of the Court’s letters of 9 May 2011 and 15 June 2011 as regards the determination of the date of introduction of an application, I would once more request you to inform me whether or not the form submitted on 23 February 2011 is to be considered as the formal application form. If so, it will then be for the Court to determine whether that form complies with the applicable procedural requirements. If not, you are requested to ensure that a formal application form, signed by yourself, is submitted as soon as possible and it will also be for the Court to determine whether it has been filed in compliance with the applicable procedural rules.”

16. On 12 August 2011, received by the Court on 17 August 2011, the applicant’s representative sent a completed application form which had been signed by him. The accompanying letter did not contain any explanation for the delay, nor did it disclose who had signed the application form submitted to the Court on 23 February 2011 or why this form had not been signed by the applicant’s representative.

THE LAW

17. The applicant raised a complaint under Article 3 of the Convention in relation to the refusal of the Netherlands authorities to grant him asylum. Firstly, however, it is to be considered whether the application has been lodged within a period of six months from the date on which the final decision was taken, pursuant to Article 35 § 1 of the Convention.

18. Article 35 § 1 of the Convention, in so far as relevant, reads:

“The Court may only deal with the matter ... within a period of six months from the date on which the final decision was taken.”

Rule 45 of the Rules of Court, in so far as relevant, reads:

“1. Any application made under Articles 33 or 34 of the Convention shall be submitted in writing and shall be signed by the applicant or by the applicant’s representative. ...

3. Where applicants are represented in accordance with Rule 36, a power of attorney or written authority to act shall be supplied by their representative or representatives.”

Rule 47 § 5 of the Rules of Court reads:

“5. The date of the introduction of the application for the purposes of Article 35 § 1 of the Convention shall as a general rule be considered to be the date of the first communication from the applicant setting out, even summarily, the subject matter of the application, provided that a duly completed application form has been submitted within the time-limits laid down by the Court. The Court may for good cause nevertheless decide that a different date shall be considered to be the date of introduction.”

19. Paragraphs 1, 4 and 5 of the Practice Direction on the Institution of Proceedings, appended to Rules 45 and 47 of the Rules of Court and issued by the President of the Court in accordance with Rule 32 of the Rules of Court on 1 November 2003 and amended most recently on 24 June 2009 [1] , provide as follows:

“1. An application under Article 34 of the Convention must be submitted in writing. No application may be made by phone. ...

4. If an application has not been submitted on the official form or an introductory letter does not contain all the information referred to in Rule 47, the applicant may be required to submit a duly completed form. It must be despatched within eight weeks from the date of the Registry’s letter requesting the applicant to complete and return the form.

Failure to comply with this time-limit will have implications for the date of introduction of the application and may therefore affect the applicant’s compliance with the six-month rule contained in Article 35 § 1 of the Convention.

5. Applicants may file an application by sending it by fax. However, they must despatch the signed original by post within eight weeks from the date of the Registry’s letter referred to in paragraph 4 above.”

20. In this context the Court would emphasise that in principle it is to be provided with the original, duly completed and signed application form, and also of the original authority form duly completed and signed if the applicant is represented in the Strasbourg proceedings. Transmissions by fax of these documents are, without the originals of these documents being provided to the Court, insufficient to constitute a complete or valid application. Reference is made in this respect to paragraphs 1, 4 and 5 of the Practice Direction on the Institution of Proceedings, quoted above. The last ‑ mentioned paragraph states specifically that it is the signed, original application which is to be despatched by post within eight weeks from the date of the Registry’s letter requesting the applicant to complete and return the form.

21. Reiterating its considerations in the case of Sabri Güneş v. Turkey ([GC], no. 27396/06, §§ 39-59, 29 June 2012); as well as its decision in the case of David Kokhreidze and Shalva Ramishvili v. Georgia (dec., nos. 17092/07 and 22032/07, 25 September 2012) and noting that, in accordance with national law, the ruling handed down by the Administrative Jurisdiction Division on 24 August 2010 was sent to the applicant on that same day (see paragraph 5 above), the Court finds that the six-month period within the meaning of Article 35 § 1 of the Convention started to run on 25 August 2010 (see Sabri Güneş , cited above, § 60).

22. The Court notes that, pursuant to Rule 45 § 1 of the Rules of Court an application has to be signed by the applicant or the applicant’s representative. Accordingly, an application form – even if it contains all the data and documents as set out in Rule 47 § 1 of the Rules of Court – can only be considered to have been validly introduced on a particular date when this application form is signed by either the applicant or by his or her representative. Consequently, the application form as submitted in the instant case on 23 February 2011 cannot be accepted as a valid application but only as an introductory submission to the Court, interrupting the running of the six-month period.

23. As the application form, signed by the applicant’s lawyer, was only submitted on 12 August 2011 and thus after the applicable time-limits, the application must be considered to have been introduced validly on this date and thus out of time. It follows that the application must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Marialena Tsirli Josep Casadevall Deputy Registrar President

[1] Practice Directions are appendices to the Rules of Court. They are available on the Court’s website and are sent to applicants on request.