THIRD SECTION

DECISION

Application no. 33874/07 by Birtane DEVECI against the Netherlands

The European Court of Human Rights (Third Section), sitting on 6 July 2010 as a Chamber composed of:

Josep Casadevall , President, Elisabet Fura , Corneliu Bîrsan , Boštjan M. Zupančič , Alvina Gyulumyan , Egbert Myjer , Luis López Guerra , judges, and Santiago Quesada, Section Registrar ,

Having regard to the above application lodged on 3 August 2007,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Birtane Deveci , is a Turkish national who was born in 1978 and lives in Zaandam . She is represented before the Court by Ms B. Anik , a lawyer practising in Utrecht . The Dutch Government (“the Government”) are represented by the ir Deputy Agent, M s L. Egmond , of the Ministry of Foreign Affairs .

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

The applicant was issued with a residence permit for the purpose of staying with her husband in the Netherlands , which permit was valid as of 20 April 1998 and had to be renewed annually. It was renewed most recently until 27 June 2002.

On 24 March 2003 the applicant applied for an extension of her residence permit. The request was not taken into consideration because the applicant failed to pay the required administrative charges ( leges ).

On 28 October 2004 the applicant again applied for an extension of her residence permit. This was rejected by the Minister for Immigration and Integration ( Minister voor Vreemdelingenzaken en Integratie ) o n 19 January 2005 because the applicant had submitted th e request more than six months after her previous residence permit had expired. In such situations a request for renewal is generally considered as a request for first admission and rejected when the person concerned is not in possession of a provisional residence visa ( machtiging tot voorlopig verblijf ). Such a visa is normally a prerequisite for the grant of a residence permit, which confers more permanent residence rights, and it has to be applied for in a person ' s country of origin. This visa requirement is only waived if the reasons for submitting the request too late cannot be attr ibuted to the person concerned.

The applicant unsuccessfully instituted administrative proceedings against the Minister ' s decision . The final decision was taken by the Administrative Jurisdiction Division of the Council of State ( Afdeling bestuursrechtspraak van de Raad van State ) on 13 February 2007.

On 24 October 2008 the applicant ' s representative forwarded a letter to the Court from the applicant ' s brother in which he state d that the applicant had originally left Turkey for the Netherlands to marry her current husband against the will of her father. She would therefore run a risk of being subjected to honour killing if she were to return to Turkey .

COMPLAINTS

The applicant complain ed of excessive formalism displayed by the Dutch authorities in insisting she return to Turkey to apply for a provisional residence visa, which was contrary to her right to respect for family life as guaranteed by Article 8 of the Convention.

She further complain ed under Article 3 of the Convention that she would face a real risk of treatment contrary to that provision if she was obliged to return to Turkey .

THE LAW

Notice of the present application was given to the respondent Government on 2 April 2009.

On 23 July 2009 the Government informed the Court that its Visa Service ( Visadienst ) had given a positive advice on the applicant ' s request for a provisional residence visa. The applicant would thus be able to request such a visa – in the Netherlands –, upon receipt of which she would be eligible to request a temporary residence permit as well. As further indicated by the Government, such a residence permit would in principle be issued to the applicant barring unforeseen circumstances.

On 5 August 2009 the Court requested the applicant to comment on the information submitted by the Government and whether, in light in of these new developments, she wished to pursue her application.

On 25 August 2009, the applicant merely confirmed the information submitted by the Government.

Despite further requests by the Court of 25 September and 14 October 2009 to indicate whether or not the applicant wished to pursue the application, no clear answer to this question has been received.

Even though it has remained ambiguous whether or not the applicant wished to pursue her application, the Court notes that, since lodging the application, the applicant has been issued a provisional residence visa, which in turn will in all likelihood lead to the issuing of a residence permit for stay in the Netherlands .

The Court considers that, in these circumstances, and having regard to Article 37 § 1 (a) and (b) of the Convention, it is no longer justified to continue the examination of the application. 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.

Santiago Quesada Josep Casadevall Registrar President