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 } .s3E839E41 { margin-top:12pt; margin-bottom:30pt; text-align:center } .sDA30A789 { margin-top:30pt; 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 } .s401C450A { margin-top:12pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .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 } .s3B3A5DE9 { margin-top:12pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify } .sD547F9D2 { margin-top:36pt; margin-bottom:42pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s947B417C { margin-top:42pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s2E2EB3D2 { margin-top:12pt; margin-bottom:0pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .s98A7B623 { margin-top:0pt; margin-bottom:0pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s2D638DB { width:35.27pt; display:inline-block } .s23A41E03 { width:36pt; display:inline-block } .sEC880A83 { margin-top:0pt; margin-bottom:18pt; text-align:justify } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s9C156EF7 { margin-top:0pt; margin-left:14.2pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .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. 33212/09 by Shukri ALI ELMI against the Netherlands and Greece lodged on 23 June 2009 STATEMENT OF FACTS THE FACTS The applicant, Ms Shukri Ali Elmi, is a Somali national who was born in 1979 and is currently staying in Echt. She is represented before the Court by Mr B.J. Manspeaker, a lawyer practising 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 was born and lived in Mogadishu. She belongs to the Tumal minority group. She is married and has two children. In July 2007 she was held for one day and one night by soldiers of President Abdulahi Yusuf Ahmed. The applicant left Somalia in mid-August 2007. She arrived on the Greek island of Leros in September 2007. She was apprehended by the Greek authorities and detained for four days. Upon her release she was given a document by police and told to go to Athens. Once in Athens, she was not enabled to apply for asylum and, not being provided with accommodation, she was forced to live on the streets. For this reason she decided to leave Greece. The applicant arrived in Sweden in November 2007 and applied for asylum in that country on 3 December 2007. The asylum application was rejected, the Swedish authorities considering that, pursuant to Council Regulation (EC) No. 343/2003 of 18 February 2003 (“the Dublin Regulation”), Greece was responsible for examining the asylum request. On 16 April 2008 the applicant was transferred back to Greece. Upon her arrival at Athens airport, the applicant was detained for four days. She lodged an application for asylum on 17 April 2008. No Somali interpreter being available, a fellow detainee assisted the authorities in explaining to the applicant in Arabic – which language she is able to speak a little bit – that she had to sign a document which constituted her asylum application. The applicant indicated that she wished to talk about the reasons for her flight, and she was told to put her account on paper. However, when she was halfway through, she was told that was enough. She signed the paper and it was taken away from her. She was not given a copy. Upon her release she was handed a red card and told to go to the Greek Refugee Council. She was once more not provided with accommodation and forced to live on the streets. The applicant heard nothing more about her asylum application. As a contact address, she had given the Greek authorities the address of a Sudanese man. The applicant tried to seek help from the Greek Refugee Council on a number of occasions but never succeeded in gaining entry to that organisation’s premises. On 24 July 2008, police raided the house where she was staying and ill-treated her. All inhabitants – mainly illegal aliens – were arrested. Police took away from her the card showing that she had lodged an asylum application and she was told to leave the country. This incident was reported in the Rizospastis newspaper of 25 July 2008. In late August 2008 the applicant left Greece again, travelling to the Netherlands via Italy. She applied for asylum in the Netherlands on 18   November 2008. Her asylum application was rejected by the Dutch authorities who, like their Swedish counterparts, considered that Greece was responsible for the examination of that application pursuant to the Dublin Regulation. The applicant’s appeal against this decision was rejected by the Regional Court ( rechtbank ) of The Hague, sitting in Almelo, on 28 May 2009. The Regional Court having reached its decision without a hearing, the applicant lodged an objection ( verzet ) against it, which proceedings are currently still pending. Her request for an injunction to stay her transfer to Greece pending these proceedings was declared inadmissible by the provisional measures judge ( voorzieningenrechter ) of the Regional Court of The Hague, sitting in Almelo, on 19 June 2008, as Dutch law did not provide for the possibility of an injunction pending objection proceedings. 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 pending the proceedings before the Court. 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 confirmed that the applicant had been transferred to Greece from Sweden on 16 April 2008. She had lodged an application for asylum at the competent asylum office of the police department at Athens airport, which application was still pending. 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. COMPLAINTS Against the Netherlands The applicant complains that her transfer to Greece would expose her to a real risk of being subjected to treatment in breach of Article 3 of the Convention, having regard to the conditions of detention on the island of Leros as well as at Athens airport, and to the fact that she was previously ill-treated by police. Moreover, the applicant’s indirect removal to an intermediary country, whose authorities may decide to return her to Somalia, does not affect the responsibility of the Netherlands to ensure that she is not, as a result of its decision to expel, exposed to treatment contrary to Article 3. Invoking Article 5 of the Convention, the applicant further complains of the lack of a remedy which can be employed in order to stay her expulsion to Greece. Against Greece The applicant complains that, if returned to Somalia, she will be exposed to a real risk of being subjected to treatment in breach of Article 3 of the Convention. She invokes the same provision of the Convention in relation to the treatment which she has suffered in Greece, and which she expects to suffer again if returned to that country. She further complains under Article   5 that she was detained on two occasions, even though Greek legislation does not allow for the detention of asylum seekers. 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 she face a risk of being subjected to treatment in breach of Article 3 of the Convention if she were transferred to Greece, followed by a return to her 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, she runs a real risk of being (indirectly) returned to her country of origin without the Greek authorities having established through a rigorous scrutiny that she 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.     Can the Government confirm whether the following of the applicant’s submissions are correct:   –     that she was detained for four days upon her arrival at Athens airport from Sweden; –     that no interpreter was available when she lodged an application for asylum at Athens airport; –     that she informed the Greek authorities of the reasons for her flight in writing; –     that no accommodation was made available to her?   2.     Has a decision on the merits of the applicant’s asylum application been taken in the meantime?   The Government are requested to submit a copy of all documents relating to the applicant’s request for asylum as lodged by her at Athens airport upon her return from Sweden.   3.     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.   4a.     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.   4b.     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?   5.     In the light of the applicant’s claims and the documents which have been submitted, would she face a risk of being subjected to treatment in breach of Article 3 of the Convention if returned, even indirectly, to her country of origin?   6a.     What procedure will be applied to the applicant – as an asylum seeker transferred in application of the Dublin Regulation –, upon her return to Greece?   6b.     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?