THIRD SECTION

DECISION

Application no . 32452/14 E.M . against the Netherlands

The European Court of Human Rights ( Third Section ), sitting on 3 November 2015 as a Chamber composed of:

Luis López Guerra, President , George Nicolaou , Helen Keller, Helena Jäderblom , Johannes Silvis, Dmitry Dedov, Branko Lubarda , judges , and Marialena Tsirli , Deputy Section Registrar ,

Having regard to the above application lodged on 28 April 2014,

Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court and the fact that this interim measure has been complied with,

Having regard to the factual information submitted by the respondent Government and the written comments in reply submitted by the applicant,

Having regard to the decision of 24 March 2015 to lift the interim measure under Rule 39 of the Rules of Court,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Ms E.M., is an Angolan national, who was born in 1993 and is currently in the Netherlands. The President of the Section decided that the applicant ’ s identity should not be disclosed to the public (Rule 47 § 4 of the Rules of Court). The applicant was represented before the Court by Mr P. Krauth , a lawyer practising in Zwolle.

2. The Netherlands Government (“the Government”) were represented by their Agent, Mr R.A.A. Böcker , of t he Ministry of Foreign Affairs.

3. The facts of the case, as submitted by the parties, may be summarised as follows.

4. On 22 August 2013, the applicant applied for asylum in the Netherlands. On 25 November 2013, the Deputy Minister for Security and Justice ( Staatssecretaris van Veiligheid en Justitie ) rejected the applicant ’ s asylum request. The Minister found that, pursuant to Council Regulation (EC) no. 343/2003 of 18 February 2003 (“the Dublin Regulation”), Italy was responsible for the processing of the asylum request. The Minister rejected the applicant ’ s argument that she risked treatment in breach of Articl e 3 of the Convention in Italy.

5. The applicant ’ s appeal against this decision and the accompanying request for a provisional measure were rejected on 18 April 2014 by the provisional measures judge ( voorzieningenrechter ) of the Regional Court of The Hague sitting in Zwolle, who upheld the Deputy Minister ’ s decision and underlying reasoning. In addi tion, the applicant ’ s argument that her removal would entail a violation of Article 8 of the Convention as she was expecting a child the paternity of which had already been recognised by a Netherlands national was rejected. Given the strict separation in the system under the Aliens Act 2000 ( Vreemdelingenwet 2000 ) between an asylum-based application for a residence permit and a regular application ( reguliere aanvraag ) for a residence permit, it was considered that, if the applicant wished to reside in the Netherlands on the basis of Article 8 of the Convention, she should file a regular application for a residen ce permit based on family life.

6. The applicant filed a further appeal with the Administrative Jurisdiction Division ( Afdeling Bestuursrechtspraak ) of the Council of State, together with a request for a provisional measure. A further appeal to the Administrative Jurisdiction Division 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. On 28 April 2014, the President of the Administrative Jurisdiction Division rejected the applicant ’ s request for a provisional measure, finding no reasons for assuming that the challenged ruling would be quashed on appeal. On the same day, the applicant was notified that her transfer to Italy had been scheduled for 29 April 2014.

7. The application was introduced to the Court on 28 April 2014 and, on the same day, 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 until further notice. The President also decided under Rul e 54 § 2 (a) to put factual questions the Government.

8. On 30 May 2014, the applicant gave birth to a daughter whose paternity had been recognised by the applicant ’ s partner. As the father is a Netherlands national, the daughter holds Netherlands nationality. The applicant and her partner jointly exercise parental authority.

9. The Government submitted their answers on 6 June 2014 and the applicant ’ s written comments in reply were submitted on 22 July 2014. On 3 December 2014, additional factual questions were put to the Government. The Government submitted their answ ers on 7 January 2015 and the a pplicant ’ s comments in reply were submitted on 6 February 2015. Having noted these submissions, the Chamber decided on 24 March 2015 to lift the Rule 39 indication.

10. On 22 July 2015, the applicant informed the Court that, on 16 July 2015, the Deputy Minister had decided to withdraw the decision that Italy was responsible for deciding the applicant ’ s asylum request , that the Netherlands would take responsibility for the processing of her asylum request and that, consequently, it was no longer intended to transfer her to Italy. The applicant further informed the Court that she had withdrawn her still pending further appeal to the Administrati ve Jurisdiction Division. On 21 August 2015, she further informed the Court that, nevertheless, she wished to pursue her application to the Court as the fact that the Netherlands had accepted to take responsibility for the processing of her asylum request did not guarantee that her rights under Article 8 of the Convention would be respected.

COMPLAINTS

11. The applicant complained that her transfer to Italy would be in violation of Article 3 in that she would risk exposure to bad living conditions in Italy. She further complained that the refusal of the Netherlands authorities to take responsibility for the processing of her asylum request was contrary to Article 8 as her consequential transfer to Italy would separate her from her child.

THE LAW

12. The applicant complained that her transfer to Italy under the Dublin Regulation would be contrary to Article 3, which reads:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

13. The Court notes that the applicant no longer risk s be ing transferred to Italy under the Dublin Regulation as the Netherlands have accepted responsibility for the processing of her asylum request. Reiterating the relevant principles as set out recently in M.E. v. Sweden ((striking out) [GC], no. 71398/12, §§ 32-35, 8 April 2015), the Court finds that, in respect of this part of the application, the matter has been resolved within the meaning of Article 37 § 1 (b) of the Convention. Furthermore, in accordance with Article 37 § 1 in fine, the Court has found no special circumstances relating to respect for human rights as defined in the Convention and its Protocols which require it to continue the examination of the application. Accordingly, it is appropriate to strike this part of the application out of the list of cases.

14. The applicant further complained that the refusal of the Netherlands authorities to take responsibility for the processing of her asylum request and her consequential removal to Italy would be in breach of Article 8 , as this would separate her from her child. Article 8 of the Convention provides in its relevant part:

“1. Everyone has the right to respect for his ... family life ...”

15. As noted above, the applicant no longer risk s being transferred to Italy under the Dublin Regulation . The Court further notes that there is no indication in the case file that a final decision has been taken on the applicant ’ s asylum request in the Netherlands or that she has filed a regular application for a residence permit on the basis of her family life within the meaning of Article 8 of the Convention. C onsequently, the applicant ’ s complaint under Article 8 of the Convention must be regarded as premature and rejected as inadmissible pursuant to Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases in so far as it concerns the complaint raised under Article 3 of the Convention;

Declares the remainder of the application inadmissible.

Done in English and notified in writing on 26 November 2015 .

Marialena Tsirli Luis López Guerra Deputy Registrar President