THIRD SECTION

DECISION

Application no . 20651/11 H.N . against the Netherlands

The European Court of Human Rights (Third Section), sitting on 31 March 2015 as a Committee composed of:

Luis López Guerra, President, Johannes Silvis, Valeriu Griţco , judges, and Marialena Tsirli , Deputy Section Registrar ,

Having regard to the above application lodged on 31 March 2011 ,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

1. T he applicant, Ms H.N. , is an Afghan national, who was born in 1988 and lives in Oosterhout . The President decided that the applicant ’ s identity would not be disclosed to the public (Rule 47 § 4). She was initially represented before the Court by Mr A.F.J. Lemmens and subsequently by Mr J. Verstrepen , both lawyer s practising in Oosterhout .

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

3. The applicant, whose request for asylum in the Netherlands, lodged in 2011, was rejected, complained that there were substantial grounds for believing that she would be subjected to treatment in breach of Article 3 of the Convention if she were expelled to Afghanistan . She further complain ed under Article 13 of the Convention that she did not have an effective remedy in Dutch national law in terms of her complaint under Article 3 of the Convention.

4. On 4 April 2011 the President of the Section decided, under Rule 39 of the Rules of Court, to indicate to the Government that it was desirable in the interest of the parties and the proper conduct of the proceedings before the Court not to expel the applicant to Afghanistan until further notice. It was further decided that the Government should be invited to submit their written observations on the admissibility and merits of the case .

5. The Government submitted their observations on the admissibility and merits of the application on 15 November 2012. The applicant submitted her observations in reply as well as her claims for just satisfaction on 7 January 2013. The Government commented on the applicant ’ s claims for just satisfaction on 28 January 2013.

6. On 3 February 2015 the applicant informed the Court that she had been granted a temporary residence permit as a family member of an EU citizen. By the same letter she expressed her wish to maintain her application to the Court in view of the fact that she had been entitled to protection in the Netherlands from the moment of her request for asylum in 2011 and that, had she been granted a temporary residence permit for the purpose of asylum at that time, she would have been eligible for a residence permit of indefinite duration in 2016.

THE LAW

A. Whether the case should be struck out of the list

7. Article 37 § 1 of the Convention provides:

“ The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that

(a) the applicant does not intend to pursue his application; or

(b) the matter has been resolved; or

(c) for any other reason established by the Court, it is no longer justified to continue the examination of the application.

However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires. ”

8. T he Court considers that the mere fact that the applicant will not be eligible for an indefinite residence permit in 2016, which she claimed she would have been had her original asylum application been granted, is not capable of raising an issue under Article 3, either taken alone or in conjunction with Article 13. In this respect it is to be borne in mind that, although Article 3 may in certain circumstances imply the obligation not to expel a person (see Chahal v. the United Kingdom , 15 November 1996, §§ 73-74, Reports of Judgments and Decisions 1996-V; Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, §§ 67-68, ECHR 2005-I), the protection afforded by Article 3 cannot be construed as guaranteeing, as such, the right to a residence permit (see Bonger v. the Netherlands ( dec. ), no. 10154/04, 15 September 2005), let alone the right to a particular residence permit (see Ahmed Ali v. the Netherlands and Greece ( dec. ), no. 26494/09 , § 19, 24 January 2012).

9. In particular in view of the fact that a t the present time there is no risk of the applicant being expelled to Afghanistan and the alleged risk of treatment contrary to Article 3 of the Convention materialising , and in the absence of any specific indications as to why the complaint under Article 13 would still require investigation (see Mir Isfahani v. the Netherlands ( dec. ), no. 31252/03, 31 January 2008), t he circumstances of the present case lead the Court to consider that it is no longer justified to continue the examination of the applicatio n within the meaning of Article 37 § 1 (c) of the Convention . Accordingly, the case should be struck out of the list.

10. In view of the above the application of Rule 39 of the Rules of Court comes to an end.

B . Application of Rule 43 § 4 of the Rules of Court

11. Rule 43 § 4 of the Rules of Court provides :

“When an application has been struck out, the costs shall be at the discretion of the Court. ...”

12 . The applicant submitted that the legal aid which she had been granted under the Netherlands domestic legal aid scheme for proceedings before the Court had only been sufficient to cover the legal costs and expenses incurred in her request to the Court for an interim measure under Rule 39 . She therefore claimed 2,800 Euros (EUR), which amount corresponded to 25 hours ’ work by her lawyer, at an hourly rate of EUR 112, on the application itself .

13. The Government submitted that the applicant had been granted legal aid for the purposes of her proceedings both at the national level and at the level of the Court, the latter proceedings including the request for an interim measure. They further noted that the 25 hours of work allegedly carried out by the applicant ’ s lawyer had not been substantiated by any supporting documents.

14. The Court reiterates that the general principles governing reimbursement of costs under Rule 43 § 4 of the Rule of Court are essentially the same as under Article 41 of the Convention. Moreover, a ccording to its well-established case-law an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum (see Pisano v. Italy (striking out) [GC], no. 36732/97, § § 53-54, 24 October 2002 ) .

15. Having regard to the above criteria and the absence of any supporting documents submitted by the applicant in support of her claim, the Court dismisses her claim for costs and expenses .

For these reasons, the Court, unanimously,

Decides to discontinue the application of Rule 39 of the Rules of Court and to s trike the application out of its list of cases .

Done in English and notified in writing on 23 April 2015 .

Marialena Tsirli Luis López Guerra Deputy Registrar President