Mariam and Basil YOUSSEF v the Netherlands - 11936/08 [2011] ECHR 1743 (27 September 2011)

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The European Court of Human Rights (Third Section), sitting on 27 September 2011 as a Chamber composed of:

Josep Casadevall, President,
Alvina Gyulumyan,
Egbert Myjer,
Ineta Ziemele,
Luis López Guerra,
Mihai Poalelungi,
Kristina Pardalos, judges,

Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court,

Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

1. The applicants, Ms Mariam Youssef and her brother Mr Basil Youssef, are Syrian nationals who were born in 1961 and 1970 respectively and live in Hoorn. They were represented before the Court by Mr E.M. Hoorenman, a lawyer practising in Zwaag. The Dutch Government (“the Government”) were represented by their Agent, Mr R.A.A. Böcker, and their Deputy Agent, Ms L. Egmond, of the Ministry of Foreign Affairs.

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

3. The applicants arrived in the Netherlands on 22 October 2002 and unsuccessfully applied for asylum. In April 2007, three of their brothers, who had come to the Netherlands before the applicants, were granted residence permits. The final decision on the applicants’ asylum applications, in which the rejection of those applications was upheld, was taken by the Administrative Jurisdiction Division of the Council of State (Afdeling Bestuursrechtspraak van de Raad van State) on 28 November 2007.

4. On 20 March 2008 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 remove the applicant from their territory until further notice (Rule 39 of the Rules of Court). At the same time, the President decided under Rule 54 § 2 (b) that the Government should be invited to submit written observations on the admissibility and merits of the case. Two application forms were further sent to the applicants’ representative who was requested to complete and return them, which he did on 25 April 2008, followed, on 30 April 2008, by a further elaboration relating to the complaint under Article 6 of the Convention.

5. Following receipt of the Government’s observations as well as of the applicants’ observations in reply, the Government indicated on 15 February 2010 that – in view of the fact that the applicants’ parents, who had in the meantime arrived in the Netherlands, had been granted asylum – the decisions taken with regard to the applicants were being reviewed. On 12 October 2010 the Government informed the Court that by decision of 20 September 2010 the applicants had been granted a residence permit, valid until 20 September 2015.

6. The applicants were subsequently asked whether, in view of this development, they wished to pursue their application or agreed to its being struck out of the Court’s list of cases. On 28 October 2010 the applicants informed the Court that they wished to withdraw their complaints under Articles 2, 3, 5 and 14 of the Convention and under Article 1 of Protocol No. 12, but that they maintained their complaints of a violation of Articles 6 and 13 of the Convention.

7. The applicants originally complained under Articles 2, 3 and 5 of the Convention that their expulsion to Syria would expose them to a real risk of death, torture, disappearance and/or deprivation of liberty. Invoking Article 14 of the Convention and Article 1 of Protocol No. 12, the applicants also originally complained that they had been treated differently from their brothers who had been granted residence permits.

8. Under Article 6 they complained that the Administrative Jurisdiction Division of the Council of State was not an independent tribunal but an advisory body of the Government. Finally, the applicants claimed that they had not had an effective remedy for the alleged violations of their Convention rights as guaranteed by Article 13 in that relevant information had not been taken into account in the decisions on their asylum applications.

A. Complaints under Articles 2, 3, 5 and 14 of the Convention and Article 1 of Protocol No. 12

9. The Court notes that the applicants are no longer at risk of being expelled to Syria and that, for this reason, they do not intend to pursue their complaints under the above provisions of the Convention. In these circumstances, and having regard to Article 37 § 1 (a) and (b) of the Convention and in the absence of any special circumstances regarding respect for the rights guaranteed by the Convention or its Protocols, the Court is of the opinion that it is appropriate to strike this part of the application out of the list.

10. The applicants complained that the proceedings on their applications for asylum did not comply with the requirements of Article 6.

11. However, it is well-established in the Court’s case-law that decisions regarding the entry, stay and deportation of aliens do not concern the determination of an applicant’s civil rights or obligations, or of a criminal charge, within the meaning of Article 6 § 1 of the Convention (see Maaouia v. France [GC], no. 39652/98, § 40, ECHR 2000-X and Szabó v. Sweden (dec.), no. 8578/03, ECHR 2006-VIII). The complaint under Article 6 must therefore be declared inadmissible for being incompatible ratione materiae with the provisions of the Convention.

12. The applicants further alleged that they had not had an effective remedy for their Convention complaints as guaranteed by Article 13.

13. The Court reiterates its case-law to the effect that Article 13 cannot reasonably be interpreted so as to require a remedy in domestic law in respect of any supposed grievance under the Convention that an individual may have, no matter how unmeritorious his or her complaint may be: the grievance must be an arguable one in terms of the Convention (see Boyle and Rice v. the United Kingdom, 24 April 1988, § 52, Series A no. 131).

14. The applicants having withdrawn their complaints under Articles 2, 3, 5 and 14 of the Convention and Article 1 of Protocol No. 12, and there not being an arguable claim of a violation of Article 6, it must be concluded that no issue arises under Article 13 in conjunction with those provisions. It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must thus be rejected pursuant to Article 35 § 4 of the Convention.

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

16. The applicants claimed reimbursement of an amount of 11,781 euros (EUR) in respect of costs of legal assistance and of an amount of EUR 2,539.50 in respect of translation costs (16,930 words at EUR 0.15 per word) incurred in the proceedings before the Court. Although they had been granted Government-funded legal aid, this would not result in any compensation being paid to them if there was a right to reimbursement of these costs by either the opposing or a third party and the applicants were therefore under an obligation to seek such compensation when possible.

17. In respect of the translation costs it was submitted that these had been necessarily incurred also at the initial stage of the proceedings before the Court. Even if it was the case that, at that stage, the submissions could have been made in the Dutch language, the applicants would then have been dependent for the evaluation of their case on a summary made from their submissions. Moreover, they considered that the submission of all their arguments in the English language enhanced or at least favourably influenced their chances of success before the Court.

18. The Government were of the opinion that the applicants had been sufficiently compensated as regards the costs of legal assistance by the monetary allowances (toevoegingen) granted to them in respect of the request for an interim measure and of the application to the Court. The exact amount of that compensation would be determined after the proceedings for which the allowances had been granted had come to an end; any compensation which the Court ordered the Government to pay to the applicants would then be deducted from the compensation granted under the legal-aid scheme.

19. The Government acknowledged that translation expenses were not covered by the legal-aid scheme. However, referring to Rule 34 of the Rules of Court, they argued that it had not been necessary for the applicants to produce English translations of their submissions lodged prior to notice of the application being given to the Government. As regards the costs claimed in respect of translation of documents submitted after notice of the application had been given to them, the Government had serious doubts as to whether those costs had actually been incurred. They observed in this connection that the translator’s invoice was dated 10 March 2011 and inter alia concerned a translation made three years previously; the name of the translator did not appear in the registry of sworn translators (register beëdigde tolken en vertalers); the company name on the invoice did not appear in the online register of the Chamber of Commerce (Kamer van Koophandel); and, as the translator and the applicants’ representative shared the same surname, the Government could not exclude that they were related and that the invoice had been drawn up at the representative’s request for the sole purpose of substantiating his claim that translation costs had been incurred.

20. Commenting on the Government’s submissions, the applicants argued that the translations in question had been produced by a translator who was fully qualified for that purpose since she held a standard university degree as well as a PhD in English Language and Culture. The fact that the translator was the daughter of the applicants’ representative in no way meant that no costs had been incurred. In view of the applicants’ limited financial position, the translator had agreed to carry out the work on a “no cure, no pay” basis, which explained that an invoice for her work had only been drawn up when it appeared that the proceedings had been successful.

21. The Court reiterates that the general principles governing reimbursement of costs under Rule 43 § 4 are essentially the same as under Article 41 of the Convention (see Pisano v. Italy (striking out) [GC], no. 36732/97, §§ 53-54, 24 October 2002 and Voorhuis v. the Netherlands (dec.), no. 28692/06, 3 March 2009). According to the Court’s 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 were reasonable as to quantum. Furthermore, under Rule 60 § 2 of the Rules of Court, itemised particulars of any claim must be submitted, together with the relevant supporting documents or vouchers, failing which the Court may reject the claim in whole or in part (see Kovačić and Others v. Slovenia (striking out) [GC], nos. 44574/98, 45133/98 and 48316/99, § 276, 3 October 2008).

22. Noting that the applicants are entitled to compensation of costs of legal assistance incurred in the present proceedings under the Netherlands domestic legal-aid scheme, the Court perceives no cause to make an award in this respect.

23. The Court observes, however, that – as explicitly acknowledged by the Government – translation costs are not covered by the domestic legal-aid scheme. As regards the question whether such costs may be eligible for an award of compensation under Rule 43 § 4, the Court notes that prior to notice of an application being given to a Government, applicants may, pursuant to Rule 34 § 2, lodge their submissions in a language other than one of the Court’s official languages (i.e. English or French, see Rule 34 § 1) as long as they are in one of the official languages of the Contracting Parties. Even though submissions in English or French of good linguistic quality certainly assist the Court in its work, the Court nevertheless agrees with the Government that translation costs made at that stage of the Court’s proceedings cannot be said to have been “necessarily incurred”.

24. The Court does not share the Government’s doubts on whether the costs, claimed in respect of the translation of submissions after notice of the application had been given to them, were “actually incurred”. While translations must evidently be of good quality, a requirement that they be certified or produced by a sworn translator is neither contained in, nor flows from, the Convention, the Rules of Court or the Court’s case-law. Having regard to the qualifications of the translator as well as to the linguistic quality of the translations submitted in the present case, the Court considers that there can be no objection to the choice of the applicants’ representative for this particular translator; it does not consider relevant, without more, the fact that the translator also happened to be related to the representative.

25. Given that notice of the present application was given to the Government on 20 March 2008, costs relating to the translation of submissions lodged after that date are therefore in principle eligible for compensation. These submissions concern the application (containing 9,092 translated words), the further elaboration of the application (1,789 words) and the observations in reply (3,001 words; see above). However, the document containing the further elaboration of the application concerned only the complaint under Article 6 of the Convention. Given that this complaint is being declared inadmissible rather than struck out of the list, the translation costs of this document cannot be compensated pursuant to Rule 43 § 3 or any other provision of the Convention or the Rules of Court.

26. Applying the rate claimed by them, the Court accordingly awards the applicants jointly EUR 1,815 for the costs of translation of their application and observations in reply. To this amount is to be added any tax that may be chargeable to the applicants. As to default interest, the Court considers it appropriate that it should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

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You are here: BAILII >> Databases >> European Court of Human Rights >> Mariam and Basil YOUSSEF v the Netherlands - 11936/08 [2011] ECHR 1743 (27 September 2011) URL: http://www.bailii.org/eu/cases/ECHR/2011/1743.html Cite as: [2011] ECHR 1743