CEDH · CASELAW;STATEMENTOFFACTS;ENG — 23 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 } .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 } .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 } .s29100277 { font-family:Arial; font-weight:bold } .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 } .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. 37728/09 by Hassan MALAAQ SHOWRI against the Netherlands and Greece lodged on 17 July 2009   STATEMENT OF FACTS THE FACTS The applicant, Mr Hassan Malaaq Showri, is a Somali national who was born in 1980 and is currently staying in the Netherlands. He is represented before the Court by Ms S. Zwiers, a lawyer practising in Dordrecht. The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant was born and lived in Mogadishu. He is married and, together with his wife, cared for the four orphaned children of his brother. He belonged to the Abgal sub-clan of the Hawiye clan family. In May 2006, fundamentalist Muslims raided the cinema he ran together with his brother because they did not agree with the films that were being shown there. In the course of this raid, the applicant’s brother was killed and the applicant himself was shot in the arm. The applicant left Somalia in January 2007. In September 2007 the applicant, travelling by boat from Turkey, arrived on the Greek island of Samos together with some twenty other persons. The group was arrested by masked police. The applicant gave his name as Hassan Ahmed Ali. Together with the other members of the group, he was taken to a hospital for a medical check and then detained for eight days. On one of these days, a police man kicked the applicant’s injured arm, resulting in a fracture, in order to wake him. He was subsequently given a piece of paper telling him he had to leave the country within 30 days. The applicant went to Athens, where he experienced problems on a daily basis due to the fact that he had no identity or travel documents. He slept in parks and ate restaurant leftovers. Some seven months after he had first been told to leave the country, he was detained for ten days and once again told to leave Greece within 30 days. If he did not do so, he risked incurring a long prison sentence. He told the Greek authorities he would be prepared to return to Somalia if they arranged for the bullet fragments lodged in his arm and leg to be removed. In reply, he was told not to have such a big mouth. Although he attempted to, he was not given the opportunity to apply for asylum in Greece. The applicant obtained a false passport and arrived in the Netherlands, via Germany, on 4 July 2008. He applied for asylum on 17 September 2008. On 19 November 2008 the Dutch Deputy Minister of Justice ( Staatssecretaris van Justitie ) requested the Greek Ministry of the Interior to take charge of the applicant in accordance with article 10 paragraph 2 of Council Regulation (EC) No. 343/2003 of 18 February 2003 (“the Dublin Regulation”). The Head of the Aliens Division in Greece replied on 6   February 2009 that the request to take charge of the applicant had been rejected, since there was no element to suggest that he had resided in Greece for at least five months – a requirement contained in article 10 paragraph 2 of the Dublin Regulation – before submitting an asylum application in the Netherlands. According to the Head of the Aliens Division, the applicant had been arrested by the Greek authorities for illegal entry on 16 September 2007, issued an expulsion decision and released three days later. In a letter of 3 March 2009, the Dutch Deputy Minister informed the Aliens Division in Greece that, due to their failure to reply to her request within the binding time-limit of two months, Greece was now considered to have accepted the request and was therefore responsible for the determination of the applicant’s application for asylum by virtue of article 18 paragraph 7 of the Dublin Regulation. The applicant’s asylum request in the Netherlands was rejected on 1   April 2009, for the reason that Greece was responsible for the examination of this request. The applicant’s appeal against this decision was rejected by the Regional Court ( rechtbank ) of The Hague, sitting in Almelo, on 4 June 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 his transfer to Greece pending these proceedings. On 17 July 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. 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 – where he fears being subjected to treatment in breach of Article 3 – without a proper examination of that Article 3 claim having taken place. He 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 the applicant 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?