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              30 July 2009

THIRD SECTION

Application no. 26494/09
by Hayaati AHMED ALI
against the Netherlands and Greece
lodged on 19 May 2009

STATEMENT OF FACTS

THE FACTS

The applicant, Ms Hayaati Ahmed Ali is a Somali national who was born in 1980 and is currently staying in the Netherlands. She is represented before the Court by Ms K.H. Blom, a lawyer practising in Utrecht.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant was raped by members of the Habr Gedir clan, to which she does not belong, in her house and in the presence of her family. Later they took the applicant’s husband. This was an act of revenge; the applicant’s son had been playing with the son of a Habr Gedir clan member when the latter was killed in a car accident. The applicant fled her country, forced to leave her family behind.

The applicant arrived in Greece by boat from Libya in November 2006. As she had no identification documents she and two others were detained upon arrival by the Greek authorities. The Greek authorities did not allow the applicant to file a written or oral request for asylum. The applicant and her cellmates were ill-treated by the Greek authorities (beaten, deprived of food and drink and drugged prior to deportation) during the five days she was detained in Greece. On the fifth day Greek officials informed the applicant and her cellmates orally that they had been refused asylum and were to return to their countries of origin. According to the applicant, the breakfast she and her cellmates were brought contained a sedative; they were subsequently escorted to a vehicle that took them to a white airplane. With that aircraft the applicant flew to a country unknown to her where Arabic was spoken. There a transit was made to a flight that took the applicant to Mogadishu, where she landed on 17 November 2006.

The applicant arrived in the Netherlands on 10 January 2007. Her asylum application in that country was rejected by the Deputy Minister of Justice (Staatssecretaris van Justitie) on 17 September 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.

In her appeal against this decision to the Regional Court (rechtbank) of The Hague, sitting in Zwolle, the applicant argued that the Deputy Minister could not rely on the principle of legitimate expectations in that Greece could be assumed to abide by its obligations under Article 3 of the Convention. The applicant claimed that Greece would violate Article 3 by both ill-treating her again and by sending her back to Somalia without examining her asylum claim. The applicant adduced substantial documentation in support of her claim, including documents from sources like, but not limited to, the Council of Europe Committee for the Prevention of Torture, UNHCR, Amnesty International and the Helsinki Committee.

The applicant’s request to the Regional Court to stay her expulsion pending the appeal was granted on 14 December 2007.

On 3 July 2008 the Regional Court upheld the applicant’s appeal. Quoting extensively from the above sources, it held that the applicant had sufficiently established that she would both run a risk of ill-treatment in Greece and that it could not be excluded that the Greek authorities would expel her without due process. The court had regard to the applicant’s individual circumstances – her past experiences in Greece – and how they corresponded to the realities of Greek asylum procedure as described by the documentation submitted by her. The court concluded that the Deputy Minister could not reasonably have expected the applicant to produce more evidence in support of her claims and ordered the Deputy Minister to take a new decision.

The Deputy Minister’s appeal to the Administrative Jurisdiction Division of the Council of State (Afdeling Bestuursrechtspraak van de Raad van State – “the Division”) was upheld by judgment of 29 December 2008. The Division quashed the Regional Court’s judgment and dealt with the applicant’s appeal itself. It found that the applicant had insufficiently established that she would run a real risk of being expelled by the Greek authorities to Somalia without due process, since neither the evidence adduced by her nor her own past experiences in Greece sufficed to refute the firmly established principle of legitimate expectations – i.e. that Greece would abide by their obligations under the Convention.

As regards Article 3 and the ill-treatment the applicant claimed to have suffered at the hands of the Greek authorities and which she feared to be subjected to anew upon her transfer to Greece, the Division found that since this claim had not been advanced in the appeal proceedings before the Regional Court and did not form part of the examination to be carried out by that court of its own motion, it could not be included in the examination of the further appeal. No appeal lay against this decision.

B.  Events after the introduction of the application

On 5 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 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 10 November 2006. Not carrying any travel or identity documents, the applicant had given her name as Zara Suleiman. A decision had been taken to expel the applicant without a measure of deprivation of liberty being imposed. That decision had been suspended for one month, during which time she was to report to a particular police station on the first and sixteenth day of the month. It had not appeared from the file that the applicant had been removed to her country of origin (as was claimed by her) or any other 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.

In their comments of 6 July 2009 to the replies submitted by the Greek Government, the Netherlands Government inter alia informed the Court that they had reached an agreement with the Greek authorities on practical conditions for transfer of asylum seekers from the Netherlands to Greece. It had, inter alia, been agreed that the Greek authorities would be informed of a transfer at least ten days before its scheduled date, no more than forty persons would be transferred per week, a Dutch official would accompany those transferred to facilitate the procedure, and the asylum seekers transferred would be enabled to apply for asylum upon their arrival at the airport in Greece. Furthermore, a Dutch multi-disciplinary team was set to visit Greece shortly to make an inventory of needs at the operational level on the Greek side and assess opportunities for closer cooperation.

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, deprived of food and drink, and drugged. She furthermore alleges that she was expelled, in breach of Article 3, by the Greek authorities to Somalia without due consideration of her asylum claim.

Invoking Article 13, the applicant further complains that the Greek authorities will, once again, not examine – let alone rigorously 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 (inter alia by the Frankfurt-based Stiftung Pro Asyl; UNHCR; Amnesty International; the Norwegian Organisation for Asylum Seekers, the Norwegian Helsinki Committee and the Greek Helsinki Monitor; the Council of Europe’s Commissioner for Human Rights and the Council of Europe Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment) about the treatment of asylum seekers and the examination of asylum applications by the Greek authorities.

The applicant complains that her detention upon arrival in Greece was in breach of Article 5 §§ 2 and 4 of the Convention, and that she was not provided with a fair trial as guaranteed by Article 6. In particular, the Greek authorities had acted in breach of the rights laid down 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?