CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 10 septembre 2013

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border-right-width:0.75pt; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top } .s40B7A780 { border-top-style:solid; border-top-width:0.75pt; border-right-style:solid; border-right-width:0.75pt; border-left-style:solid; border-left-width:0.75pt; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top } .s4F2EDFF { border-top-style:solid; border-top-width:0.75pt; border-left-style:solid; border-left-width:0.75pt; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top }   THIRD SECTION DECISION Application no. 2314/10 Nuur HUSSEIN DIIRSHI against the Netherlands and Italy and 3 other applications (see list appended) The European Court of Human Rights (Third Section), sitting on 10   September   2013 as a Chamber composed of: Josep Casadevall, President,   Alvina Gyulumyan,   Guido Raimondi,   Corneliu Bîrsan,   Luis López Guerra,   Nona Tsotsoria,   Johannes Silvis, judges, and Santiago Quesada, Section Registrar, Having regard to the above applications lodged against both the Netherlands and Italy between 13 January 2010 and 7 September 2010; Having regard to the interim measures indicated in the present applications to the Netherlands Government under Rule 39 of the Rules of Court, and the fact that these interim measures have been complied with and have subsequently been lifted by the President on 16 January 2012 in applications nos. 2314/10, 18324/10 and 47851/10, and on 21 March 2012 in application no. 51377/10; Having regard to the factual information submitted by the Netherlands and/or Italian Government and the comments in reply submitted by the applicants; Having deliberated, decides as follows: THE FACTS 1.     A list of the applicants is set out in the appendix. The Government of the Netherlands were represented by their Agent, Mr R.A.A. Böcker, and/or their Deputy Agent, Ms L. Egmond, both of the Ministry of Foreign Affairs. The Italian Government were represented by their Agent, Ms E. Spatafora, and their Co-Agent, Ms P. Accardo. A.     The circumstances of the cases 2.     The facts of the cases, as submitted by the applicants, the Italian Government and the Netherlands Government, may be summarised as follows. Some of the facts are in dispute between the parties. 1.     Application no. 2314/10 3.     The applicant is a Somali national, who claims that he was born in 1992. At the time of the introduction of the application, he was staying in Baexem, the Netherlands. He was represented before the Court by Ms   J.   Niemer, a lawyer practising in Amsterdam. 4.     The applicant hails from Mogadishu and belongs to either the Abgaal or the Habar Gedir sub-clan of the Hawiye clan. After having travelled from Somalia to Libya, the applicant left Libya by boat in December 2008. A fight broke out on this boat which nearly sank. The applicant was rescued by the Italian coastguard. He entered Italy on 1 January 2009, on the island of Lampedusa. On the same date, his fingerprints and a passport photograph were taken by the Lampedusa local police, who registered him as having illegally entered the territory of the European Union. He was registered as Nuor Hussin Mohamed, a Somali national who was born on 1 January 1994. 5.     On 27 January 2009, the applicant applied for international protection at the Bari police ( questura ) immigration department. According to the information set out in the “Standard form C/3 for the recognition of refugee status according to the Geneva Convention of 28 July 1951” ( Modello C/3 per il riconoscimento dello status di rifugiato ai sensi della Convenzione di Ginevra del 28 Luglio 1951 ) and obtained from the applicant with the assistance of an interpreter, the applicant’s name was Nur Hussen Mohamed, and he was a Somali citizen of Abgaal origin, born in Mogadishu on 1 January 1990 and not in 1994 as recorded in his initial registration. He further stated that he had a sister who was living in the Netherlands and that he had fled Somalia on 29 September 2008 because of the war there. This standard form was signed by the applicant, the interpreter and the official having conducted the interview with the applicant. The applicant’s fingerprints were taken again as well as a new passport photograph. According to this form, the applicant was staying at the Bari-Palese reception centre for asylum seekers ( Centro di Accoglienza per Richiendenti Asilo ; “CARA”). 6.     On 28 January 2009, the applicant was provided with a temporary residence permit as an asylum seeker. This permit had a validity of twenty days. 7.     In its decision of 12 March 2009, the Bari Territorial Commission for the Recognition of International Protection ( Commissione Territoriale per il Riconoscimento della Protezione Internationale ) granted the applicant a residence permit for the purpose of subsidiary protection. This decision was served on the applicant in person on 16 March 2009 and the certificate of service was signed by the applicant, the interpreter and the responsible official. At the same time, the applicant was provided with a residence permit for an alien having been granted subsidiary protection which contains the applicant’s signature as well as a travel document for aliens ( Titolo di viaggio per stranieri ) which also bears his signature. Both the residence permit and the travel document were valid until 16 March 2012. 8.     On an unspecified date, the applicant left the Bari-Palese asylum seekers reception centre of his own volition. 9.     On 11 May 2009, the applicant entered the Netherlands where he applied for asylum on 13 May 2009. The examination and comparison of his fingerprints by the Netherlands authorities generated a Eurodac “hit” report, indicating that the applicant had illegally entered Italy on 1 January 2009 and that on 27 January 2009 he had applied for asylum in Italy. 10.     In the course of his first interview ( eerste gehoor ) with the Dutch immigration authorities, held on 15 May 2009, the applicant wrote down his personal data, declaring that his name was Nuur Hussein Diirshi, and that he had been born in Mogadishu on 1 July 1992. He confirmed that he was thus seventeen years old. He further stated that he belonged to the Hawiye/Habar Gedir, a majority clan. After an initial denial, he admitted that he had been in Italy and that he had applied for asylum there. He declared that he had done so under his own name and that he had not been given any documents. He also declared that his father had died in 1995, and that his mother, his sister and two half-siblings were living in Mogadishu. He did not mention having a sister living in the Netherlands. He had left Somalia in March 2008 and had travelled via Ethiopia, Sudan and Libya to Italy. 11.     In his written comments on the record drawn up of his first interview, the applicant stated that he did not know whether he had applied for asylum in Italy. There had been someone who had interpreted but who had spoken Somali very badly. He had been taken to a place where he had to live but it had been very bad there. He had therefore decided to flee onwards and, for that reason, also did not wish to return to Italy. During the journey from Somalia to the Netherlands he had used the name Abdirahman. He further denied that he had ever held a passport or residence permit issued in his own name or other kind of identity document. 12.     In the applicant’s further interview with the Dutch immigration authorities, held on 16 May 2009, he stated inter alia that he objected to his transfer to Italy where he had not been provided with education or a roof over his head. 13.     On 7 July 2009 the Netherlands authorities requested the Italian authorities to take back the applicant under the terms of Article 16 § 1 (c) of Council Regulation (EC) no. 343/2003 of 18 February 2003 (“the Dublin Regulation”). As the Italian authorities failed to react to that request within two weeks, they were considered under Article 20 § 1 of the Dublin Regulation as having acceded implicitly to that request. 14.     The applicant’s asylum request filed in the Netherlands was rejected on 26 August 2009 by the Deputy Minister of Justice ( Staatssecretaris van Justitie ) who found that, pursuant to the Dublin Regulation, Italy was responsible for the processing of the asylum application. As to the applicant’s arguments that his transfer to Italy would violate his rights under Articles 3 and 13 of the Convention because the Italian asylum procedure had many flaws, because he was a minor and did not have access to an effective remedy, and because in Italy he would risk homelessness and having to live a wandering existence on the streets, the Minister held that it had not been established that Italy would fall short of its obligations under the Convention or under the 1951 Refugee Convention in respect of the applicant. 15.     The applicant’s appeal against this decision and the accompanying request for a provisional measure ( voorlopige voorziening ) were rejected on 12 January 2010 by the provisional-measures judge ( voorzieningenrechter ) of the Regional Court ( rechtbank ) of The Hague sitting in Zwolle. The judge considered inter alia that in principle the Deputy Minister could rely on the principle of mutual interstate trust ( interstatelijk vertrouwensbeginsel ) unless the applicant could demonstrate, on the basis of concrete facts and circumstances relating to his individual case, that this was different in respect of Italy. The judge found that the applicant had not done so as the mere claim that he, as a minor, had not been given reception and assistance was insufficient to demonstrate the existence of concrete indications that Italy failed to respect its international treaty obligations in respect of the applicant. 16.     On 13 January 2010, the applicant filed a further appeal to the Administrative Jurisdiction Division ( Afdeling Bestuursrechtspraak ) of the Council of State ( Raad van State ) as well as a request for a provisional measure, i.e. to stay his transfer to Italy pending the proceedings on his further appeal. On the same day, the President of the Administrative Jurisdiction Division rejected the applicant’s request for a provisional measure. 17.     On 4 June 2010, the Administrative Jurisdiction Division rejected the applicant’s further appeal on summary grounds, holding: “What has been raised in the grievances ... does not provide grounds for quashing the impugned ruling ( kan niet tot vernietiging van de aangevallen uitspraak leiden ). Having regard to article 91 § 2 of the Aliens Act 2000 ( Vreemdelingenwet 2000 ), no further reasoning is called for, since the arguments submitted do not raise questions which require determination in the interest of legal uniformity, legal development or legal protection in the general sense.” No further appeal lay against this ruling. 18.     The application was introduced to the Court on 13 January 2010. On 13 January 2010, 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 for the duration of the proceedings before the Court. 19.     On 16 January 2012, the President decided to lift the Rule 39 indication given in the case. On the same day, a number of factual questions were put to the Government of Italy (Rule 54 § 2 (a)), which concerned the applicant’s situation in Italy before his arrival in the Netherlands. The Italian Government submitted their replies on 5 March 2012 and the applicant’s comments in reply were submitted on 2 April 2012. 20.     In the meantime, the applicant had been transferred from the Netherlands to Italy on 19 March 2012. 21.     On 5 December 2012, the applicant returned to the Netherlands where he filed a fresh asylum request. 22.     On 14 January 2013 the Netherlands authorities requested the Italian authorities to take back the applicant under the terms of Article 16 of the Dublin Regulation. As the Italian authorities failed to react to that request within two weeks, they were considered under Article 20 § 1 of the Dublin Regulation as having acceded implicitly to that request. 23.     On 13 June 2013, the Deputy Minister of Security and Justice ( Staatssecretaris van Veiligheid en Justitie ) rejected the applicant’s new asylum request filed in the Netherlands, holding that, pursuant to the Dublin Regulation, Italy was responsible for the processing of that request. The Deputy Minister did not find it established that Italy fell short of its international treaty obligations in respect of asylum seekers and refugees, and rejected the applicant’s argument that he risked treatment in breach of Article 3 of the Convention in Italy or refoulement . 24.     The applicant’s appeal against this decision and his accompanying request for a provisional measure were rejected on 12 July 2013 by the provisional-measures judge of the Regional Court of The Hague sitting in Haarlem, who found that it had not appeared that the applicant, after his removal to Italy in 2012, had made a clear attempt to file a complaint with the Italian authorities about the failure to provide reception, legal aid and other facilities. According to the judge, this finding was not altered by the fact that the applicant had filed an application with the Court as he should first turn to the Italian authorities. 25.     The applicant’s further appeal is currently pending before the Administrative Jurisdiction Division. 26.     On 24 June 2013, the applicant was notified that his transfer to Italy had been scheduled for 22 July 2013. No further information about this transfer has been submitted. 2.     Application no. 18324/10 27.     The applicant is a citizen of Somalia, who states that he was born in 1993. At the time of the introduction of the application, he was staying in Zuidlaren. He was represented before the Court by Mr P.J. Schüller, a lawyer practising in Amsterdam. 28.     On 9 October 2008, the applicant was registered in Lampedusa and Linosa as having illegally entered the territory of the European Union. He stated that he was Liban Ali Omer, a national of Somalia, and that he had been born on 1 January 1991. He was registered accordingly and his fingerprints were taken. 29.     On 24 November 2008, at the Agrigento police immigration department, his fingerprints were taken once more and he was registered as an unaccompanied minor having applied for international protection. He then stated that his name was Lubaan Cumar Cali and that he was born on 1   January 1991. Being an unaccompanied minor, the applicant was placed in the Comunità per minori “Alice” , a reception and care centre for disadvantaged and foreign minors in Palma di Montechiaro, Agrigento province. 30.     On the same day, the Agrigento police immigration department notified the Palermo Juvenile Court ( Tribunale per i minorenni ), the office of the guardianship judge at the Agrigento Tribunal ( Tribunale Ufficio del Giudice Tutelare ), the communal social services department ( Ufficio Servizi Sociali ) in Palma di Montechiaro, and the Rome Central Service for the System of Protection of Asylum Seekers and Refugees ( Servizio del Sistema di Protezione per richiedenti asilo e rifugiati ) of the presence of the applicant and four other unaccompanied minor asylum seekers in the “Alice” centre for minors pending the determination of their asylum request and other procedures, including the appointment of a legal guardian. No further information about the latter procedure has been submitted. 31.     On 12 March 2009 the applicant left the “Alice” centre without authorisation for an unknown destination. He was subsequently registered by the Agrigento police department as a missing minor in the “ SDI ” police investigation database system. 32.     The applicant having failed to appear at the hearing before it, the Trapani Territorial Commission rejected the applicant’s asylum request on 5   August 2009, finding that no assessment of the alleged risk of persecution could be made. 33.     In the meantime, the applicant had travelled to the Netherland where he arrived on 5 April 2009 and applied for asylum, stating that he was Abdale Ali Omar, a Somali national born on 5 December 1993. The examination and comparison of his fingerprints by the Netherlands authorities generated a Eurodac “hit” report, indicating that the applicant had been registered in Lampedua e Linosa on 9 October 2008 and in Agrigento on 24 November 2008. 34.     In the applicant’s first interview with the Dutch immigration authorities, held on 8 April 2009, he stated inter alia that he was an illiterate orphan, that he hailed from Mogadishu and that he had been told by his uncle and grandmother that he would turn 16 in 25 days. He held no identity documents. He had travelled by air from Mogadishu to Hargeisa (Somaliland) on 15 January 2008. He had then travelled over land, via Ethiopia and Sudan, to Libya where he had been detained for about five months. After having managed to abscond, he had travelled by boat to Italy. The applicant further stated that his real name was Libaan Ali Omar. Although his “travel agent” had told him never to reveal his true identity, he had done so in Italy due to the stress he had then been under. As he had stated in Italy that he was 17, he had been assigned a guardian and he had been placed in an Italian foster family with two other children. A man had come with papers to sign, but the applicant had not known that this was an asylum request. He had left this family because he had not been allowed to go to school or to do anything. He had had to go to sleep at 10 p.m. and even at 1 p.m. he had been told to sleep. In the company of a man known to the applicant’s uncle, the applicant had travelled by train to the Netherlands. 35.     On 10 April 2009, a subsequent Dublin Claim interview ( gehoor Dublinclaim ) was held with the applicant. He stated during this interview inter alia that he had been taken from Lampedusa to a home where several other young asylum seekers had been staying. He had not been allowed to go to school and he had been beaten when he did not go to bed on time. The rules had been very strict in the home. He had called his uncle who knew someone in Italy who had succeeded in getting him out of that home. This man had also brought the applicant to the Netherlands where he wanted to build up a future and get schooling. 36.     On 11 April 2009, the Deputy Minister of Justice informed the applicant of her intention ( voornemen ) to reject his asylum request. The applicant filed his written comments ( zienswijze ) on this intention on 13   July 2009 and 31 August 2009 in which he submitted, inter alia , that he had been detained in Libya for five months and that he had been ill-treated during his detention there, which traumatic experience had caused him to develop psychological problems. 37.     On 15 June 2009 the Netherlands authorities asked the Italian authorities to take back the applicant in accordance with Article 16 of the Dublin Regulation. On 30 June 2009, the Italian authorities accepted this request. 38.     The applicant’s asylum request filed in the Netherlands was rejected on 1 September 2009 by the Deputy Minister. Noting that the applicant had applied for asylum in Italy on 24 November 2008 and that Italy had accepted to take back the applicant, the Deputy Minister held that, in accordance with the Dublin Regulation, Italy was responsible for the processing of the applicant’s asylum request. The Deputy Minister rejected as unfounded the applicant’s arguments to the effect that Italy failed to respect its international treaty obligations in respect of asylum seekers and refugees. The Deputy Minister further rejected the applicant’s argument that he would risk treatment in breach of Article 3 of the Convention in Italy. 39.     On 4 September 2009, the applicant filed an appeal against this decision with the Regional Court of The Hague. 40.     On 3 November 2009, the applicant was notified that his removal to Italy had been scheduled for 27 November 2009. 41.     On 14 November 2009, the applicant requested the Regional Court of The Hague to issue a provisional measure prohibiting his removal pending the outcome of the appeal proceedings.   On 24 November 2009, the provisional-measures judge of the Regional Court of The Hague sitting in Zwolle granted this request. 42.     In its judgment of 22 February 2010, the Regional Court of The Hague sitting in Zwolle rejected the applicant’s appeal. It held that in principle the Deputy Minister could rely on the principle of mutual interstate trust unless the applicant could demonstrate, on the basis of concrete facts and circumstances relating to his individual case, that this was different in respect of Italy. The Regional Court found that the applicant had not done so as his mere claim that he, as a minor, would end up in an inhumane situation if transferred to Italy or that he was not able to take independent action against the Italian State whose treatment of refugees was deficient were both insufficient for finding it established that Italy would fail to respect its international treaty obligations in respect of the applicant. The Regional Court further did not find it established that the applicant, if transferred to Italy, would have no access to adequate medical care or that such a transfer should be regarded as entailing undue hardship ( onevenredige hardheid ). 43.     On 8 March 2010, Ms S., a guardian of the “Nidos” foundation (juvenile protection agency for unaccompanied minor asylum seekers), who – on an unspecified date – had apparently been entrusted with the applicant’s guardianship ( voogdij ), was notified that the applicant’s transfer to Italy had been scheduled for 22 August 2010 at the latest. 44.     Between 4 and 22 March 2010, the applicant’s guardian Ms S. sent messages to inter alia the Central Service of the SPRAR ( Sistema di Protezione per Richiendenti Asilo e Rifugiati ; “Protection System for Asylum Seekers and Refugees”), the Department responsible for Dublin requests at the Italian Ministry of the Interior ( Ministero dell’Interno ) and to the Italian Council for Refugees ( Consiglio Italiano per i Rifugiati ), requesting information about the applicant’s situation after his transfer to Italy (accommodation, guardianship, schooling). On 22 March 2010, Ms S. sent a letter by fax to the Netherlands immigration authorities, informing them that Nidos held the applicant’s guardianship and that Nidos had contacted the Italian authorities on 15 March 2010 for information about the applicant’s reception conditions in Italy in order to assess whether it could accept his transfer to Italy. Since no information about this had been received yet, Nidos disagreed with the applicant’s removal from the Netherlands until clarity was obtained on how he would be received and accommodated in Italy. 45.     On 22 March 2010, the applicant filed a further appeal with the Administrative Jurisdiction Division against the Regional Court’s judgment of 22 February 2010. 46.     On 23 March 2010, the Nidos foundation was notified that the applicant would be handed over to the (Italian) authorities on 8 April 2010. The foundation was further informed that the applicant would be escorted on his journey to Italy and that, after his arrival there, he would be handed over to the Italian authorities. 47.     On 26 March 2010, the applicant requested the Administrative Jurisdiction Division to issue a provisional measure, staying his removal to Italy pending the determination of his further appeal. This request was rejected on 1 April 2010 by the President of the Administrative Jurisdiction Division. 48.     On 14 July 2011, following hearings held on 19 October 2010 and 21 April 2011, the Administrative Jurisdiction Division rejected the applicant’s further appeal of 22 March 2010. No further appeal lay against this ruling. 49.     The application was introduced to the Court on 1 April 2010. On the same day, after the rejection of the applicant’s request for a provisional measure by the President of the Administrative Jurisdiction Division, 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 for the duration of the proceedings before the Court. 50.     On 16 January 2012, the President decided to lift the Rule 39 indication given in the case. On the same day, a number of factual questions were put to the Government of Italy (Rule 54 § 2 (a)), which concerned the applicant’s situation in Italy before his arrival in the Netherlands. The Italian Government submitted their replies on 5 March 2012 and comments in reply were submitted by the applicant’s representative on 25 April 2012. 51.     In the meantime, on 22 February 2012, the Minister for Immigration, Integration and Asylum Policy ( Minister voor Immigratie, Integratie en Asiel ) had rejected the applicant’s fresh asylum request, finding that it was not based on any newly emerged facts and circumstances – within the meaning of section 4:6 of the General Administrative Law Act ( Algemene wet bestuursrecht ) – warranting a revision of the initial negative decision. On the same day, the applicant filed an appeal with the Regional Court of The Hague. 52.     Also on 22 February 2012, the applicant filed an objection ( bezwaar ) against an act aimed at his effective removal ( daadwerkelijke uitzettingshandeling ) within the meaning of section 72 § 3 of the Aliens Act 2000 in respect of his imminent transfer to Italy. The applicant further filed two requests with the Regional Court of The Hague to issue a provisional measure to the effect that his removal to Italy would be stayed pending the proceedings on his appeal and objection. 53.     On the same day, the provisional-measures judge of the Regional Court of The Hague sitting in Almelo rejected the applicant’s requests for a provisional measure. The judge found there were no reasons to allow the applicant to await the outcome of his fresh asylum request or of his application to the Court in the Netherlands. No further information about the proceedings on the applicant’s appeal and objection has been submitted. 54.     On 23 February 2012, the applicant was transferred to Milan (Italy). According to the applicant’s representative, the applicant has been left to his own devices in Italy and nobody has explained to him what he should do or where he should go to get advice or legal aid in order to apply for asylum again. 55.     In a letter of 23 April 2012 (the mention of 2011 seems to be a typing error), the Italian NGO “Save the Children; Italia Onlus” informed the lawyer representing the applicant in the proceedings before the Court, at the latter’s request, that their field operators had found and met the applicant. He had been destitute. No assistance or accommodation had been made available by the public authorities after his arrival in Italy, and neither had he been provided with information on how to access services for asylum seekers in the municipality of Rome. Due to the very limited number of places within the asylum seekers reception facilities in that municipality, they had been unable to find shelter for the applicant. However, he had recently found shelter in a dormitory run by a private charity in Latina, about 70 km south of Rome, where volunteers were trying to help him obtain basic social assistance and medical care. However, this facility was due to close on 30 April 2012. In this letter, it was further pointed out that accommodation was a prerequisite for the admissibility of any asylum request and that, therefore, the applicant’s request for international protection or for review of the rejection of his initial request would not be taken up for examination by the authorities if he did not have accommodation and an address. The letter further expressed concern that in that case - although removals to Somalia were usually not enforced – the applicant risked being denied access to the Italian international protection system, detention for removal purposes and possibly the issuance of a removal order against him. 56.     In his submissions of 25 April 2012, the applicant’s representative informed the Court that, after the applicant’s removal to Italy, the lawyer who had assisted the applicant in the domestic proceedings had managed to speak to the applicant twice. The applicant’s representative further informed the Court that he had not had the opportunity to discuss with the applicant the replies submitted by the Italian Government on 5 March 2012. 3.     Application no. 47851/10 57.     The applicant is a citizen of Somalia, who states that he was born in September 1993. At the time of the introduction of the application, he was staying in Oude Pekela. He was represented before the Court by Mr   W.   Eikelboom, a lawyer practising in Amsterdam. 58.     After having left Somalia and after a traumatic journey through Kenya, Uganda, Sudan and Libya, the applicant arrived on the island of Lampedusa in Italy on 1 December 2008. His fingerprints were taken by the Lampedusa local police, who registered him as having illegally entered the territory of the European Union. The applicant indicated that he wished to apply for international protection. Having been advised by others to do so and believing that this this would increase his chances, he gave a false identity to the Lampedusa police. Accordingly, he was registered as Yusuf Mohamed Osman, a Somali national who was born on 5 December 1980. 59.     On 4 March 2009, under the identity given by the applicant to the Lampedusa police, the Taranto Territorial Commission granted the applicant a residence permit for the purpose of subsidiary protection, which permit was valid for three years. 60.     On 26 April 2009, the applicant left Italy and travelled to the Netherlands where he arrived on 27 April 2009 and applied for asylum. 61.     In his first interview with the Netherlands immigration authorities, held on 30 April 2009, the applicant stated that his name was Yusuf Madi Sheekh and that he had been born on 6 September 1994 in Mogadishu. He later corrected this to 6 September 1993. He further stated that he had no identity or other document and that his mother had sent him to Kenya in 2005, where he had lived from 2005 until his departure on 27 April 2009 when he had travelled to the Netherlands by air. When it was put to him that his fingerprints had been taken in Italy in December 2008, he admitted that he had been in that country where he had been provided with a residence permit with a validity of three years as well as with a travel document allowing him to travel in Europe in March 2009. He further stated that he had applied for asylum in Italy under the name Yusuf Mohamed Osman and a date of birth in 1980. He had left Somalia in September 2005 and had travelled, via Kenya, Uganda, Sudan and Libya, to Lampedusa in Italy. He had been taken from Lampedusa to Sicily. After he had lost his papers, he had travelled to Palermo and then to Turin and subsequently to the Netherlands. As the applicant claimed that he hailed from Mogadishu, a number of questions about this city were put to him. 62.     In the written comments on the record drawn up of this interview, the lawyer assisting the applicant in the asylum proceedings explained inter alia that the applicant did not know his exact year of birth but only that his mother had told him in a telephone conversation held in October 2008 that he was 16 years old. 63.     On 1 May 2009, a Dublin Claim interview was held with the applicant. He stated during this interview inter alia that he had stayed in Italy from 1 December 2008 to 25 April 2009 and that he had been provided with an Italian residence permit and a kind of passport which had been stolen from him five days later. Apart from to the office where he had been provided with these documents, he had not reported the theft to any other authority. When he had tried to obtain a new residence permit, he was told that this was not possible. Because he had been unable to find food and a place to sleep, he had decided to leave Italy. When he had gone to the reception centre where he had presented his problem, other asylum seekers had advised him to go to the Netherlands which he had done. 64.     On 2 May 2009 the Deputy Minister of Justice gave notice of her intention to reject the applicant’s asylum request. Noting that it had appeared from the Eurodac database that the applicant had applied for asylum in Italy on 5 December 2008 and that he had stated that he had been granted international protection until 2012, the Deputy Minister held that Italy was responsible for the applicant under the terms of the Dublin Regulation and that there were no reasons warranting the use of the “sovereignty clause” contained in the Dublin Regulation and consequently determine the asylum application in the Netherlands and refrain from transferring the applicant to Italy. The applicant, represented by a lawyer in the asylum proceedings, was given the opportunity to submit written comments on the notice of intention. He did not avail himself of this opportunity. 65.     On 20 May 2009, the Juvenile Court judge ( kinderrechter ) at the civil law section of the Leeuwarden Regional Court, noting the applicant’s stated date of birth and with his consent, entrusted the Nidos foundation with the temporary guardianship ( tijdelijke voogdij ) of the applicant. 66.     On 23 June 2009 the Netherlands authorities requested the Italian authorities to take back the applicant under the terms of Article 16 § 1 (c) of the Dublin Regulation. As the Italian authorities failed to react to that request within two weeks, they were considered under Article 20 § 1 of the Dublin Regulation to have implicitly acceded to that request. 67.     The applicant’s asylum request filed in the Netherlands was rejected on 29 July 2009 by the Deputy Minister. Noting that the applicant had not filed any comments on the notice of intention, the Deputy Minister referred to the reasons given in that notice. 68.     The applicant’s appeal against this decision was rejected on 19   March 2010 by the Regional Court ( rechtbank ) of The Hague sitting in Zwolle. It considered inter alia that in principle the Deputy Minister could rely on the principle of mutual interstate trust unless the applicant could demonstrate, on the basis of concrete facts and circumstances relating to his individual case, that this was different in respect of Italy. The court found that, by merely claiming that, while a minor, he had been left to his own devices in Italy where no housing had been allocated to him and no food provided, the applicant had not demonstrated that there were concrete indications that Italy failed to respect its international treaty obligations in respect of the applicant. This finding was further not found to be altered by the applicant’s claim that his interests as a child would be harmed if his tie with his guardian was severed, as it had not appeared that there were no guardianship arrangements in Italy for unaccompanied minor asylum seekers. It further did not find it established that there was a risk that Italy would fall short of its obligations under the 1951 Refugee Convention or the Convention. 69.     On 12 April 2010, the applicant filed a further appeal to the Administrative Jurisdiction Division. 70.     On 2 June 2010, the applicant requested the Minister of Justice for deferment of removal ( uitstel van vertrek ) on medical grounds under section   64 of the Aliens Act 2000. 71.     On 13 July 2010, the Medical Assessment Section ( Bureau Medische Advisering ) of the Ministry of Justice drew up an advice based on the findings of an inquiry into the applicant’s state of health. According to this advice, the applicant was suffering from a post-traumatic stress disorder (PTSD) entailing sleeping problems, reliving past events, nightmares, headaches and concentration problems. He was receiving temporary treatment in the Netherlands in the form of Eye Movement Desensitisation and Reprocessing (EMDR) and specific forms of cognitive behavioural therapy. Although it was found that the applicant was fit to travel and that a discontinuation of this treatment would not result in a medical emergency situation in the short term, it was advised – as in any event an escort was indicated given his young age – that the applicant be accompanied by a psychiatric nurse. 72.     On 27 July 2010, having noted the advice of 13 July 2010, the Minister of Justice rejected the applicant’s request for deferment of removal on medical grounds. 73.     On 29 July 2010 the Administrative Jurisdiction Division rejected the applicant’s further appeal of 12 April 2010 and confirmed the impugned judgment of 19 March 2010. No further appeal lay against this ruling. 74.     The application was introduced to the Court on 20 August 2010. 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 for the duration of the proceedings before the Court. 75.     On 30 March 2011, the applicant filed a fresh asylum request in the Netherlands, which was rejected by the Minister for Immigration, Integration and Asylum Policy. The applicant filed an appeal with the Regional Court of The Hague. 76.     On 16 January 2012, the President decided to lift the Rule 39 indication given in the case. On the same day, a number of factual questions were put to the Government of Italy (Rule 54 § 2 (a)), which concerned the applicant’s situation in Italy before his arrival in the Netherlands. The Italian Government submitted their replies on 6 March 2012 and the applicant’s comments in reply were submitted on 25 April 2012. 77.     After the President’s decision of 16 January 2012, the applicant requested the Regional Court of The Hague to issue a provisional measure aimed at staying his transfer to Italy pending the appeal proceedings. On 15   March 2012 a hearing was held before the Regional Court of The Hague. No further information about these proceedings has been submitted. 4.     Application no. 51377/10 78.     The applicant is a citizen of Somalia, who states that he was born in March 1994. At the time of the introduction of the application, he was staying in Oude Pekela. He was represented before the Court by Ms   M.   Haanstra, a lawyer practising in Groningen. 79.     The applicant hails from Mogadishu and belongs to the minority Sheikal clan. In order to evade pressure to join the al-Shabaab militants he fled Somalia in 2008. 80.     After having suffered serious hardships during his flight, he eventually reached – via Libya – the coast of Sicily on 10 October 2008 where the Catania local police took his fingerprints and registered him as having illegally entered the territory of the European Union. The applicant stated that his name was Negib Ise, that he was a Somali citizen and that he had been born on 1 January 1992. He was registered accordingly. Also on 10 October 2008, the Deputy Prosecutor of the Catania Juvenile Court entrusted the temporary care and custody of the applicant and four others, who – like the applicant – had been found to be unaccompanied minor asylum seekers, to the manager of the Caltagirone “First Assistance Service of the SPRAR Service” where these five minors were to be accommodated. 81.     On 1 December 2008, the Catania local police took the applicant’s fingerprints again and registered him as an asylum seeker. He then indicated that his name was Najib Ise Ali and that he had been born on 1 January 1989, and was thus an adult. On 23 December 2008, assisted by an interpreter, the applicant completed his formal asylum request. According to the information set out in the “Standard form C/3 for the recognition of refugee status according to the Geneva Convention of 28 July 1951”, as obtained from him with the assistance of this interpreter, the applicant’s name was Najib Ise and he was born on 1 January 1989 in Mogadishu. 82.     On 13 March 2009, under the identity given by the applicant on 23   December 2008 to the Italian authorities, the Syracuse Territorial Commission granted the applicant a residence permit for the purpose of subsidiary protection. This decision was served on the applicant in person on the same day. He was provided with a residence permit for an alien granted subsidiary protection and a travel document for aliens. Both the residence permit and the travel document were valid until 31 May 2012. The applicant continued to reside, at least until 1 June 2009, in the Casa Serena SPRAR reception centre in Caltagirone. 83.     On an unspecified date but on or around 10 June 2009, the applicant left Italy and travelled to the Netherlands where he arrived shortly afterwards and, on 18 June 2009, applied for asylum. 84.     In his first interview with the Netherlands immigration authorities, held on 20 June 2009, the applicant stated that his name was Aange Isse Ali and that he had been born on 4 March 1994 in Mogadishu, and that he was thus a minor. He further stated that he had never held a passport or residence document in his own name. He had left Somalia about one year previously. His father had been killed by a stray bullet in August 2008 and his mother, 6 siblings and 5 half-siblings were still living in Mogadishu. He had had the most recent conversation with his mother seven days earlier. He further admitted that he had been in Italy where he had been placed in a refugee camp. He had been sick in Italy and had been admitted to hospital for an operation. He had left before a decision had been taken on his asylum request because his mother had told him to go to a better country. He further stated that his family had told him to leave Italy and go to another country; in that way he could work and attend school in order to be of use to his family later. 85.     On 22 June 2009, a further interview was held with the applicant. He stated during this interview inter alia that he had come to Europe for a good education, good facilities and good medical care which he had not obtained in Italy. That was why he had left Italy. 86.     On 2 May 2009 the Deputy Minister of Justice gave notice of her intention to reject the applicant’s asylum request. Noting that it had appeared from the Eurodac database that the applicant had applied for asylum in Italy on 1 December 2008, that he had stated that he had stayed in Italy from 10 October 2008 until 12 June 2009 when he had left Italy for the Netherlands, and that in Italy he had stayed in a reception centre and had stayed in hospital for three days for medical treatment purposes, the Deputy Minister held that Italy was responsible for the applicant under the terms of the Dublin Regulation and that there were no reasons warranting the use of the “sovereignty clause” contained in the Dublin Regulation and consequently determine the asylum application in the Netherlands and refrain from transferring the applicant to Italy. The applicant, represented by a lawyer in the asylum proceedings, did not submit any written comments on the notice of intention. 87.     On 5 August 2009 the Netherlands authorities requested the Italian authorities to take back the applicant under the terms of Article 16 § 1 (c) of the Dublin Regulation. As the Italian authorities failed to react to that request within two weeks, they were considered under Article 20 § 1 of the Dublin Regulation to have implicitly acceded to that request. 88.     The applicant’s asylum request filed in the Netherlands was rejected on 7 September 2009 by the Deputy Minister. Noting that the applicant had not filed any comments on the notice of intention, the Deputy Minister referred to the reasons given in that notice. 89.     The applicant’s appeal against this decision was rejected on 29   March 2010 by the Regional Court of The Hague sitting in Almelo. It considered inter alia that in principle European Union Member States should be considered as respectful of the principle of non-refoulement and of their obligations under the Convention and the 1951 Refugee Convention (the p