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. 32212/09 by Safiya MOHAMED ILMI against the Netherlands and Greece lodged on 18 June 2009   STATEMENT OF FACTS THE FACTS The applicant, Ms Safiya Mohamed Ilmi, is a Somali national who was born in 1983 and is currently residing in ‘s-Gravendeel. She is represented before the Court by Ms J.A. Pieters, a lawyer practising in Utrecht. 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 Habr Gedir sub-clan of the Hawiye clan family. Her nephew wanted to marry her, but her father refused permission because the applicant wanted to marry somebody else, which she did, in July 2007. Shortly after her marriage, the applicant was kidnapped by her nephew, and during her detention she was raped by him as well as by other men. After three days, her father succeeded in freeing her. In January 2008 the applicant’s father and elder brother passed away, leaving her without protection. She had lost contact with her husband of whose whereabouts she was unaware. Her younger brothers were not able to protect her. The applicant left Somalia in January 2008. After having travelled through Syria and Turkey, she was apprehended by the Greek authorities in Mytilini, the capital of the island of Lesbos, on 23 March 2009. Her fingerprints were taken. She told the Greek authorities her name was Aamino Mohamed. She had to appear before a court, for reasons unknown to her. While minors were released, adults, including the applicant, were sent to prison for three months. She was ill-treated in detention. In prison she was given notice that she had to leave Greece within three months. The applicant arrived in the Netherlands, via France, on 26 June 2008. She applied for asylum in the Netherlands on 23 September 2008. This application was rejected on 20 March 2009, for the reason that Greece was responsible for the examination of this request pursuant to Council Regulation (EC) No. 343/2003 of 18 February 2003 (“the Dublin Regulation”). 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 her transfer to Greece pending these proceedings. On 30 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 applicants 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 her asylum application or of her claims relating to the treatment she received in Greece and by returning her to the latter country, the Dutch authorities exposed her to a real risk of being subjected to treatment in breach of Article 3 in Greece and/or of being returned to Somalia – where she also fears being subjected to treatment in breach of Article 3 – without a proper examination of that Article 3 claim having taken place. She also complains of the fact that the proceedings on her objection against the decision of the Regional Court of The Hague, sitting in Almelo, did not enjoy suspensive effect, which, in her view, rendered that remedy ineffective. The applicant further 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 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 – her claim that her return to Somalia would expose her to a real risk of being subjected to treatment in breach of Article 3. In this respect she also invokes Article 13 in conjunction with Article 3. 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. She further claims that she will be subjected to treatment contrary to Article 3 in Greece since she will not be provided with housing or medical care and will be forced to live on the streets where she may fall victim to police violence or criminals. The applicant bases her allegations on her experiences during her previous stay in Greece as well as on reports drawn up (by inter alia the United States Department of State; Human Rights Watch; Amnesty International; UNHCR; the Greek Council for Refugees; the Frankfurt-based Stiftung Pro Asyl, the Förderverein Pro Asyl and the Athens-based Group of Lawyers for the Rights of Refugees and Migrants; the Norwegian Organisation for Asylum Seekers, the Norwegian Helsinki Committee and the Greek Helsinki Monitor; the Ecumenical Refugee Programme; the European Council for Refugees and Exiles; 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. Invoking Articles 5 and 6 of the Convention, the applicant further complains of her detention in Greece and the court proceedings in that country, in the course of which she was not assisted by an interpreter, did not receive legal aid and was not given an information on paper. 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?