THIRD SECTION

DECISION

Application no . 2303/10 Shukri IBRAHIM ALI against the Netherlands and Italy

The European Court of Human Rights (Third Section), sitting on 3 July 2012 as a Chamber composed of:

Josep Casadevall , President, Alvina Gyulumyan , Egbert Myjer , Ján Šikuta , Ineta Ziemele , Luis López Guerra , Guido Raimondi , judges,

and Marialena Tsirli, Deputy Section Registrar ,

Having regard to the above application lodged on 13 January 2010,

Having regard to the observations submitted by the respondent Governments and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant , Ms Shukri Ibrahim Ali , is a Somali national who was born in 1990 and lives in Rotterdam . She is represented before the Court by Ms I. van den Elshout , a lawyer practising in ‘ s-Hertogenbosch. The Dutch Government are represented by their Agent , Mr R.A.A. Böcker , and their deputy Agent , Ms L. Egmond , both of the Ministry of Foreign Affairs. The Italian Government are represented by their Agent , Ms E. Spatafora , and their Co-Agent , Mr N. Lettieri .

A. The circumstances of the case

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

3. The applicant applied for asylum in the Netherlands on 16 March 2009. She was eight months pregnant at the time and subsequently, on 8 April 2009, gave birth to a son. In her first interview with the Dutch immigration authorities she stated inter alia that her ex-husband – who she had married in Somalia when she was 18 years old – was her son ’ s father. The marriage had ended in divorce after one year, three months before the applicant had left Somalia .

4. Although the applicant initially stated to the Dutch immigration authorities that, accompanied by a travel agent arranged and paid for by her uncle, she had travelled to the Netherlands by airplane from Somalia via Djibouti and Dubai, it appeared from the so-called Eurodac system that before coming to the Netherlands she had been in Italy. She subsequently admitted that that was indeed the case: travelling by foot, bus and boat via Djibouti , Eritrea , Sudan and Libya she had reached the Italian island of Lampedusa in August 2008. In Italy she had been granted a residence permit on the grounds of subsidiary protection, valid for three years. She claimed that the Italian authorities had not put any questions to her about the reasons for her asylum application but only about her personal details and country of origin. After the granting of the residence permit, the applicant had no longer been eligible for State-sponsored facilities and she had found herself living on the streets, heavily pregnant.

5. The asylum application in the Netherlands was rejected because the authorities were of the opinion that pursuant to Regulation no. 343/2003/EC of 18 February 2003 (“the Dublin Regulation”), Italy was responsible for the processing of the asylum application. The applicant ’ s appeal against this decision was rejected by the Regional Court ( rechtbank ) of The Hague , sitting in Almelo , on 18 December 2009. An objection ( verzet ) lodged by the applicant was still pending before the same Regional Court at the time the application was introduced with the Court in Strasbourg, but it did not enjoy suspensive effect.

B. Developments subsequent to the lodging of the application

6. On 14 January 2010, at the request of the applicant, the President of the Chamber decided to indicate to the Government of the Netherlands that it was desirable in the interests of the parties and the proper conduct of the proceedings before the Court not to expel the applicant to Italy (Rule 39 of the Rules of Court). At the same time a number of factual questions were put to that Government (Rule 54 § 2 (a)). Subsequently, factual questions were put to both respondent Governments. These questions inter alia concerned the accommodation, if any, that would be available to the applicant and her child if they were transferred to Italy . On 14 September 2010, the Governments were invited to submit written observations on the admissibility and merits of the case.

7. The applicant gave birth to a second child on 11 December 2010.

8. In a letter of 4 November 2011 the Government of the Netherlands informed the Court that in early September 2011 it had transpired that the applicant was living with her husband (a national from Niger ) and their two children in an asylum seekers ’ centre in the Netherlands . The applicant ’ s husband had entered the Netherlands in May 2011 and had applied for asylum. In his asylum interviews he had stated that he and the applicant had met in Libya in 2007 where the applicant had been living with her family. They had married in secret – because the applicant ’ s family were opposed to the marriage – in Benghazi in 2007. The couple had left Libya by boat for Lampedusa in 2008, where they had arrived in August of that year, and been separated: the husband was ill and was admitted to hospital, while the applicant was transferred and, at a later date, departed for the Netherlands while pregnant with her husband ’ s child.

9. The Dutch Government considered that, bearing in mind that the applicant had initially said nothing to the Dutch immigration authorities about her residence in Italy, the contradictions that had now emerged between the applicant ’ s statements and those of her husband regarding their marriage, divorce and departure for Italy, had further compromised the credibility of the applicant ’ s statements about her period in Italy and her conjecture about what would happen to her if she returned to that country. Moreover, in the present case the applicant had omitted to mention that she had kept in contact with her husband, that he was the father of her second child and that she was living with him. In view of the above information, the Dutch Government believed that the applicant ’ s position could not be described as that of a vulnerable single woman with young children.

10. Having been requested to comment on the information provided by the Dutch Government , the applicant ’ s representative informed the Court in a letter of 5 December 2011 that her client had decided to “terminate the proceedings”. In reply , the Government of the Netherlands requested the Court on 16 January 2012 to strike the case out of the list.

11. On 1 February 2012 the Acting President of the Section reconsidered the present case in the light of the information provided by the Netherlands Government and decided to lift the interim measure.

12. On 21 March 2012 the applicant ’ s representative informed the Court that her client wished to retract her withdrawal of the present application; the applicant had been emotionally unstable at the time and had taken the decision to discontinue the proceedings on the basis of what she now considered to be ill advice from people in her surroundings. Moreover, she requested the Court once more to indicate an interim measure pursuant to Rule 39 of the Rules of Court as the Dutch Government were planning to expel her and her children to Italy on 24 March 2012.

13. The applicant ’ s request for an interim measure was refused by the Acting President of the Section on 23 March 2012. In the letter informing the applicant ’ s representative of this decision, it was stated that the Court assumed that the applicant did not intend to continue with the present application but that – if this assumption was incorrect – she should inform the Court accordingly and at the latest by 10 April 2012. No further correspondence has been received on behalf of the applicant.

COMPLAINTS

Against the Netherlands

14. Invoking Articles 3 and 8 of the Convention, the applicant complained of the Dutch authorities ’ refusal to examine the merits of her asylum application. By proceeding in this manner, the Dutch authorities exposed her to a real risk of, firstly, the Italian authorities returning her to Somalia without a proper examination of her Article 3 claim having taken place and, secondly, being subjected to inhuman treatment in Italy where she and her son would not be provided with (State-sponsored) accommodation, sustenance, medical assistance or health insurance and would be forced to live on the streets.

The applicant also complained under Article 13 of the Convention that the Dutch authorities incorrectly considered that she would, upon her return to Italy , be able to put her grievances in relation to the unavailability of State-sponsored facilities before an Italian court or the Strasbourg Court .

Against Italy

15. The applicant complained of having been subjected to treatment in breach of Article 3 of the Convention during her stay in Italy and that her eligibility for asylum was not examined in that country. She feared that she would be subjected to the same treatment if returned to Italy and that, should her temporary residence permit in Italy not be prolonged, she would be expelled to Somalia where she would run a real risk of being subjected to treatment in breach of Article 3.

Referring to the same complaints raised in respect of the Netherlands , the applicant also alleged a violation of Articles 8 and 13 of the Convention in respect of Italy .

THE LAW

16. The Court observes that according to the Government of the Netherlands the applicant had omitted to submit certain information as a result of which her credibility was affected. It further notes that the applicant has not disputed the veracity of the information about her contained in that Government ’ s letter of 4 November 2011 (see paragraphs 8-10 above).

17. However , although justified in the particular circumstances of the present case , the Court considers that for reasons of expediency only (in particular its overload , see mutatis mutandis Bock v. Germany ( dec .) , no. 22051/07, 19 January 2010) , it will not proceed to an examination of the question whether the application was deliberately grounded on a description of facts omitting or distorting events of central importance , such that it should be rejected for constituting an abuse of the right of petition within the meaning of Article 35 § 3 of the Convention (see Sarmina and Sarmin v. Russia ( dec .) , no. 58830/00 , 22 November 2005 and Milošević v. Serbia ( dec .) , no. 20037/07 , § 39 , 5 July 2011).

18. The Court considers that the applicant may be regarded as no longer wishing to pursue her application (see paragraph 13 above), within the meaning of Article 37 § 1 (a) of the Convention. Furthermore, in accordance with Article 37 § 1 in fine , the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case.

In view of the above, it is appropriate to strike the case out of the list.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

Marialena Tsirli Josep Casadev all              Deputy Registrar President