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 } .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 } .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. 29940/09 by Suleeqo MOHAMMED JELE against the Netherlands and Greece lodged on 8 June 2009 STATEMENT OF FACTS THE FACTS The applicant, Ms Suleeqo Mohammed Jele is a Somali national who was born in 1983 and is currently staying in the Netherlands. She is represented before the Court by Mr W. de Kleine, a lawyer practising in Emmen. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant, who belongs to the Abgal sub-clan of the Hawiye clan family and hails from Mogadishu, fled her country because of its conflicts. Having reached Turkey, she attempted to sail across to Greece together with 24 other people. However, this failed and 22 of her fellow travellers drowned. She and two others were saved by Turks. They asked the Turkish authorities for assistance but did not receive any; instead they were detained for three months. Upon her release she again attempted to go to Greece by boat and succeeded this time, but she was apprehended by the Greek authorities in Mytilini, the capital of the island of Lesbos, on 17 October 2007. The applicant was not given the opportunity to apply for asylum in Greece. She received a letter stating that she was to leave Greece within 30 days. After those 30 days had passed the applicant was arrested by the Greek authorities and detained for 15 days. She subsequently received another letter stating that she was to leave Greece within the next 5 days. She was later apprehended anew and ill-treated by the Greek authorities during that arrest. When not in detention, the applicant lived on the streets as a result of which she contracted tuberculosis. The applicant arrived in the Netherlands, via France, on 19 April 2008. Her asylum application in that country was rejected by the Deputy Minister of Justice ( Staatssecretaris van Justitie ) on 3 February 2009, 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 applicants’ appeal against this decision was rejected by the Regional Court ( rechtbank ) of The Hague, sitting in Almelo, on 20 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. However, it was not open to the applicant to apply for an injunction to stay her transfer to Greece pending these proceedings. B.     Events after the introduction of the application On 8 June 2009 the Acting 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 22 June 2009, the Government of Greece submitted that the applicant had been registered as having entered the country illegally on the island of Lesbos on 29 April 2008. Not carrying any travel or identity documents, the applicant had given her name as Souleka Jale. A decision had been taken to expel the applicant without a measure of deprivation of liberty being imposed, and she had been given 30 days to leave the country. The Greek Government accepted that, pursuant to the Dublin Regulation, Greece was responsible for the examination of the applicant’s asylum application. In this respect they informed the Court that the applicant would have the right to lodge such an application at Athens airport upon her arrival from the Netherlands and that she would not be detained pending the examination of her application. In conformity with national legislation, it was a priority of the Greek State to provide unhindered use of the possibility to lodge an asylum application to any alien who states, in front of any Greek authority at any point of entry or on Greek territory, that he or she wishes to seek asylum in the country or who asks not to be expelled to a particular country for fear of being persecuted on grounds of race, religion, nationality, membership of a particular social group or political opinion. The lodging of an asylum application 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. Asylum applications were examined on their merits and on an individual basis in two instances. 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 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 her asylum application and returning her to Greece, the Dutch authorities exposed her to a real risk of being returned to Somalia without a proper examination of their Article 3 claim having taken place. She alleges that, in Somalia, she runs a real risk of being subjected to treatment in breach of Article 3 and claims that her 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. The applicant, furthermore, claims that she runs a real risk of being subjected to treatment in breach of Article 3 in Greece itself. Against Greece The applicant complains of having been subjected to treatment in breach of Article 3 of the Convention during her stay in Greece. She alleges that she was ill-treated and deprived of medical care, as a result of which she contracted tuberculosis. She, furthermore, alleges that she runs a real risk to be sent back to Somalia without due consideration of her asylum claim. The applicant, under Article 13, complains that the Greek authorities will not examine her asylum claim and that she will not have an effective remedy in Greece against violations of the Convention, including the possibility to lodge a request under Rule 39 of the Rules of Court against Greece. She argues that, in Greece, she will not be enabled to elaborate her claim with the assistance of an interpreter, that she will not have an effective remedy to challenge a rejection of her asylum request, and that she will not be provided with legal assistance. The applicant bases her allegations on her experiences during her previous stay in Greece as well as on reports drawn up about the treatment of asylum seekers and the examination of asylum applications by the Greek authorities. The applicant complains that the Greek authorities have acted in breach of her rights under Article 5 §§ 2 and 4 of the Convention. The applicant also complains that she was not guaranteed a fair trial as provided for by Article 6. In particular, the Greek authorities acted in breach of the applicant’s rights as described in Article 6 § 3. 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. 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 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?   4a.     What procedure will be applied to the applicant – as an asylum seeker transferred in application of the Dublin Regulation –, upon her 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?