CEDH · CASELAW;COMMUNICATEDCASES;ENG — 3 novembre 2009

.s800EAC49 { font-size:12pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sCF12AA88 { width:299.85pt; display:inline-block } .sBB9EE52A { font-family:Arial } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .s662121A1 { margin-top:12pt; margin-bottom:12pt; text-align:center } .s401C450A { margin-top:12pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .s827E2BE9 { margin-top:18pt; margin-bottom:36pt; text-align:center } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s87F05BA2 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .sA36B60A1 { font-family:Arial; font-style:italic } .s11869A80 { margin-top:0pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .sEC177689 { margin-top:0pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify } .sC443675D { margin-top:36pt; margin-bottom:30pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3C0142D3 { margin-top:30pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s673A384F { margin-top:36pt; margin-bottom:24pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .sAD9CA6D3 { margin-top:24pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s37CDBE05 { margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s98A7B623 { margin-top:0pt; margin-bottom:0pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .s2D638DB { width:35.27pt; display:inline-block } .s23A41E03 { width:36pt; display:inline-block } .s69E2E442 { margin-top:0pt; margin-bottom:0pt; text-align:justify; page-break-inside:avoid } .sC83B07C { margin-top:0pt; margin-left:36pt; margin-bottom:0pt; text-align:justify }   22 July 2009   THIRD SECTION Application no. 32729/09 by Mahdi MOOSA MAHAMOUD against the Netherlands and Greece lodged on 21 June 2009   STATEMENT OF FACTS THE FACTS The applicant, Mr Mahdi Moosa Mahamoud, is a Somali national who was born in 1981 and is currently staying in the Netherlands. He is represented before the Court by Mr J.M. Walls, a lawyer practicing in Dordrecht. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant originates from southern Somalia and belongs to the Tumal minority group. He left Somalia in November 2006, in order to escape the continuing violence in that country. The applicant arrived in Greece by boat from Turkey. He was apprehended by the Greek authorities on the island of Samos on 11   December 2006 and placed in detention for three weeks. After this period he was told to leave the country within 30 days, failing which he would be detained for three months. He was not enabled to submit a request for asylum. He was given a ticket to travel to Athens, where he stayed for some 20 days but where he was provided with neither accommodation nor food. Other people told him it would be better to leave Greece as he would not be allowed to stay there in any event. The applicant arrived in the Netherlands on 11 January 2007. His asylum application in that country was rejected on 18 July 2007 since it was considered that, pursuant to Council Regulation (EC) No. 343/2003 of 18   February 2003 (“the Dublin Regulation”), Greece was responsible for examining the asylum request. The applicant appealed that decision to the Regional Court ( rechtbank ) of The Hague, sitting in Zwolle. The applicant’s request to the Regional Court to stay his expulsion pending the appeal was granted on 2 October 2007. The appeal was rejected by the Regional Court on 17 June 2009. It held, in relevant part, that the applicant had insufficiently established that he would run a real risk of being expelled by the Greek authorities to Somalia without due process, since the evidence adduced by him ( inter alia a number of reports by international organisations drawn up on the situation in Greece for asylum seekers) did not suffice to refute the firmly established principle of legitimate expectations – i.e. that Greece would abide by its obligations of non-refoulement. The applicant lodged an appeal in final instance with the Administrative Jurisdiction Division of the Council of State ( Afdeling bestuursrechtspraak van de Raad van State – “the Division”) which was still pending at the time the present application was introduced to the Court. The applicant submitted that, in view of the Division’s case-law in similar cases, this appeal stood practically no chance of success. Moreover, it was not open to him to apply for an injunction to stay his transfer to Greece pending the proceedings before the Division unless the date for his expulsion had been announced, and the decision on such an application for an injunction would be taken so close in time to the actual expulsion that there would not be sufficient time to address the Strasbourg Court. B.     Events after the introduction of the application On 25 June 2009 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. At the same time, a number of questions were put to the Government of Greece under Rule 54 § 2 (a) of the Rules of Court. In their reply of 7 July 2009, the Greek Government stated that, if transferred to Greece, the applicant would have the right to lodge an application for asylum at Athens airport upon his arrival from the Netherlands and that he would not be detained pending the examination of his application. The Greek Government further submitted that the lodging of an asylum application in Greece entailed a number of rights for the asylum seeker, such as protection from deportation until the issue of the final judgment on the application, and access to housing, work, training or education, and medical care. Even if an application for asylum was rejected, the unsuccessful asylum seeker would not be removed to a country where his or her life or freedom was in danger, in accordance with the principle of      non-refoulement. On 11 September 2009 the Administrative Jurisdiction Division of the Council of State rejected the applicant’s further appeal, finding that it raised no questions which required determination “in the interest of legal uniformity, legal development or legal protection in the general sense”. COMPLAINTS Against the Netherlands Invoking Article 3 of the Convention, as well as Article 13 in conjunction with Article 3, the applicant complains that by refusing to examine the merits of his asylum application and by returning him to Greece, the Dutch authorities exposed him to a real risk of being returned to Somalia without a proper examination of his Article 3 claim having taken place. He alleges that, in Somalia, he runs a real risk of being subjected to treatment in breach of Article 3 and claims that his indirect removal to an intermediary country, whose authorities may decide to return him to Somalia, does not affect the responsibility of the Netherlands to ensure that he is not, as a result of its decision to expel, exposed to treatment contrary to Article 3. Against Greece The applicant complains that the Greek authorities will, once again, not examine – let alone rigorously examine – his claim that his return to Somalia would expose him to a real risk of being subjected to treatment in breach of Article 3. In this respect he also invokes Article 13 in conjunction with Article 3. He argues that, in Greece, he will not be enabled to elaborate his claim with the assistance of an interpreter, that he will not have an effective remedy to challenge a rejection of his asylum request, and that he will not be provided with legal assistance. The applicant bases his allegations on his experiences during his previous stay in Greece as well as on reports drawn up (by the Committee on Civil Liberties, Justice and Home Affairs of the European Parliament; the Frankfurt-based Stiftung Pro Asyl , the Förderverein Pro Asyl and the Athens-based Group of Lawyers for the Rights of Refugees and Migrants; UNHCR; Amnesty International; the Greek Council for Refugees; and the Council of Europe’s Commissioner for Human Rights) about the treatment of asylum seekers and the examination of asylum applications by the Greek authorities.     QUESTIONS TO THE PARTIES   A.     To the Government of the Netherlands   1.     With regard to the information provided previously that a Dutch Government official will be present during the transfer of an asylum seeker to Greece pursuant to Council Regulation (EC) No. 343/2003 of 18   February 2003 (“the Dublin Regulation”), the Government are requested to specify what exactly this presence entails. Does the official accompany the asylum seeker to the office of the police department at Athens airport? Does the official stay with the asylum seeker until an asylum application is lodged?   2.     In the light of the applicant’s claims and the documents which have been submitted, would he face a risk of being subjected to treatment in breach of Article 3 of the Convention if he were transferred to Greece, followed by a return to his country of origin?   3.     Having regard to   i) the reports referred to by the applicant, relating to the way in which asylum applications are processed in Greece and asylum seekers treated, and       ii) the applicant’s claim that, if transferred to Greece, he runs a real risk of being (indirectly) returned to his country of origin without the Greek authorities having established through a rigorous scrutiny that he will not run a real risk of being subjected to treatment in breach of Article 3 in that country,   is it compatible with Article 3 and/or Article 13 of the Convention for the Netherlands authorities to:   a)     apply the Dublin Regulation without sufficiently examining the claim, supported by the submitted reports, that Greece cannot be considered a safe third country and/or without ascertaining that Greece will actually submit the applicant’s asylum application to a rigorous scrutiny;   b)     apply the Dublin Regulation without examining the merits of the applicant’s claims?   In view of the requirement to secure effective protection of Convention rights (see e.g. Soering v. the United Kingdom , 7 July 1989, Series A no.   161, § 87, and Assenov and Others v. Bulgaria , 28 October 1998, Reports of Judgments and Decisions 1998-VIII, § 102), is it relevant to take into account in determining question 3a) that UNHCR has recently suspended its participation in the examination of more than 30,000 pending asylum applications in Greece due to reservations about new regulations?       B.     To the Government of Greece   1.     With regard to the information provided previously by the Government of Greece that an asylum seeker transferred to Greece pursuant to Council Regulation (EC) No.   343/2003 of 18 February 2003 (“the Dublin Regulation”) is able to apply for asylum at the office of the police department at Athens airport, and also having regard to the information contained in the various reports referred to by the applicant, the Government are requested to indicate   a)     whether, subsequent to the lodging of such an asylum application, the asylum seeker concerned is subjected to an obligation to report to the authorities and whether he or she has an effective means of complying with this obligation; and   b)     whether the processing of the asylum application is dependent on any other factors, such as the asylum seeker having an address.   2a.     With regard to the information provided previously by the Government of Greece that an asylum seeker has a right to housing, the Government are requested to elaborate on the kind of accommodation that will be made available to asylum seekers being returned to Greece pursuant to the Dublin Regulation and whether, in light of the current large influx of asylum seekers, the availability of accommodation can be guaranteed.   2b.     In addition, are asylum seekers provided with (the means to procure) essentials such as food and medical care during the time the asylum application has not yet been finally decided? If not, in what way are asylum seekers meant to obtain such essentials?   3.     In the light of the applicant’s claims and the documents which have been submitted, would he face a risk of being subjected to treatment in breach of Article 3 of the Convention if returned, even indirectly, to his country of origin?   4a.     What procedure will be applied to the applicant – as an asylum seeker transferred in application of the Dublin Regulation –, upon his return to Greece?   4b.     Can this procedure be considered as constituting an effective remedy before a national authority as required by Article 13 of the Convention? In particular:   i.     Will the applicant have access to the services of an interpreter at all stages of the procedure? ii.     Will the applicant have access to (State-funded) legal assistance, if required? iii.     If the asylum application is rejected, what possibilities of appeal exist?