Communicated on 8 January 2015

THIRD SECTION

Applications no . 7149/12 K.O.J. against the Netherlands lodged on 1 February 2012

STATEMENT OF FACTS

1 . The applicant , Ms K.O.J. , states that she is a national of Somalia, born in 1991. At the time of the introduction of the application, she was in the Netherlands. She is represented before the Court by Mr F. Hogewind , a lawyer practising in Amsterdam .

A. The circumstances of the case

2 . The facts of the case, as submitted by the parties and the Italian Government may be summarised as follows. Some facts are disputed.

3 . In March 2009, the applicant ’ s fingerprints were taken in Italy , where she was registered as an asylum seeker. She stated that her name was H.M., and that she was born in Somalia. She was admitted to a reception centre for asylum seekers.

4 . In May 2009 the competent territorial commission for the recogniti on of international protection ( Commissione Territoriale per il Riconoscimento della Protezione Internationale ) granted the applicant a residence permit for subsidiary protection under Article 15(c) of the European Union Cou ncil Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (“Qualification Directive”) . This decision was notified to the applicant . In July 2009, she was provided with a residence permit for an alien having been granted subsidiary protection, valid until June 2012. She was further provided with a travel document for aliens ( Titolo di viaggio per stranieri ) which was valid until June 2012.

5 . In August 2009, the applica nt moved to other accommodation , operated under the Protection System for Asylum Seekers and Refugees ( Sistema di protezione per richiedenti asilo e rifugiati ; “ SPRAR ” ) . According to the Italian Government, the applicant left this accommodation in April 2010 on her own volition and without giving anyone an explanation for so doing. According to the applicant, she was evicted from this accommodation and, until April 2010, lived on the streets in Italy without any assistance whatsoever from the Italian authorities.

6 . In May 2010, the applicant applied for asylum in Finland, stating that her name was H.J.B. At the request of the Finnish authorities, the Italian authorities agreed to take the applicant back in accordance with the Dublin Regulation. However, the applicant having left for an unknown destination in the meantime, her transfer from Finland to Italy never took pl ace. In July 2010, the applicant and her husband travelled from Finland to Germany where, later that year, she gave birth to a daughter.

7 . In M arch 2011, the applicant and her daughter entered the Netherlands where the applicant applied for asylum, stating that her name was K.O.J., and that she was a Somalian national.

8 . The examination and comparison of the applicant ’ s fingerprints by the Netherlands authorities in the Eurodac database was unsuccessful due to insufficient fingerprint quality.

9 . In her interviews with the Netherlands immigration authorities, she stated inter alia that she had previously applied for asylum in Italy . She further indicated repeatedly that she did not wish to return to Italy.

10 . In J uly 2011 the Netherlands authorities requested the Italian authorities to take back the applicant in ac cordance with Article 16 of the Dublin Regulation. As the Italian authorities failed to react to that request within two weeks, they were considered to have implicitly acceded to that request.

11 . In September 2011, the Netherlands Minister for Immigration, Integration and Asylum Policy ( Minister voor Immigratie , Integratie en Asiel ) rejected the applicant ’ s asylum request. The Minister found that, pursuant to the Dublin Regulation, Italy was responsible for the processing of the asylum application. The Minister rejected the applicant ’ s argument that she and her baby risked treatment in breach of Article 3 of the Convention in Italy. Also in September 2011, the applicant was informed that Italy had agreed to take her back in accordance with Article 16 of the Dublin Regulation.

12 . The applicant ’ s appeal against this decision and the accompanying request for a provisional measure were rejected in November 2011 by the provisional measures judge ( voorzieningenrechter ) of the Regional Court of The Hague.

13 . In December 2011, the applicant filed a further appeal with the Administrative Jurisdiction Division ( Afdeling Bestuursrechtspraak ) of the Council of State ( Raad van State ) . As this appeal did not have an automatic suspensive effect, the applicant and her child were placed in aliens ’ detention for removal purposes and a date for their transfer to Italy was fixed.

14 . The application was introduced to the Court on 1 February 2012. On 3 February 2012, the Acting 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 and her child to Italy. The Acting President further decided under Rule 54 § 2 (b) to give notice of the application to the Netherlands Government. The Acting President also decided that information was required from the Italian Government and a number of factual questions were put to the Government of Italy (Rule 44 § 3 (a)), which concerned the applicant ’ s situation in Italy before her arrival in the Netherlands. The Italian Government submitted their replies on 21 and 23 March 2012 and the applicant ’ s comments in reply were submitted on 13 July 2012.

15 . No information about the outcome of the proceedings before the Administrative Jurisdiction Division has been submitted.

B. Relevant domestic law and practice

16 . The relevant European, Italian and Netherlands law, instruments, principles and practice in respect of asylum proceedings, reception of asylum seekers and transfers of asylum seekers under the Dublin Regulation have recently been summarised in Tarakhel v. Switzerland ( [GC], no. 29217/12 , §§ 28-48, 4 November 2014); Hussein Diirshi v. the Netherlands and Italy and 3 other applications (( dec. ), nos. 2314/10, 18324/10, 47851/10 & 51377/10, §§ 98-117, 10 September 2013) ; Halimi v. Austria and Italy (( dec. ), no. 53852/11, §§ 21-25 and §§ 29-36, 18 June 2013); Abubeker v. Austria and Italy ( dec. ) , no. 73874/11, §§ 31-34 and §§ 37-41, 18 June 2013 ); Daybetgova and Magomedova v. Austria (( dec. ), no. 6198/12, §§ 25 29 and §§ 32-39, 4 June 2013); and Mohammed Hussein v. the Netherlands and Italy (( dec. ), no. 27725/10, §§ 25-28 and 33-50, 2 April 2013) .

COMPLAINT

17 . T he applicant c omplain s that the removal to Italy of herself and her young child would be contrary to Article 3 of the Convention in that they would be exposed to bad living conditions in Italy.

QUESTIONS TO THE parties

1. The Government are invited to submit their observations in light of the Court ’ s judgment in Tarakhel v. Switzerland ([GC], no. 29217/12, 4 November 2014). In particular, your Government are invited to clarify whether they envisage taking any steps in response to the judgment, including any that may affect directly the applicant ’ s status in the Netherlands.

2. If no such steps are envisaged, in the light of the Court ’ s findings in the above-mentioned case of Tarakhel v. Switzerland , what guarantees, if any, have been obtained by your Government from the Italian Government in connection with the applicant ’ s transfer to Italy?

3. In the light of the applicant ’ s claims, the contents of the case and the Court ’ s findings in the case of Tarakhel v. Switzerland , would the applicant face a risk of being subjected to treatment in breach of Article 3 of the Convention if transferred to Italy?