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 } .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 } .s76CF415B { page-break-before:always; clear:both } .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. 32758/09 by Temei ALEM ABRAHA against the Netherlands and Greece lodged on 21 June 2009 STATEMENT OF FACTS THE FACTS The applicant, Mr Temei Alem Abraha is an Eritrean national who was born in 1987 and is currently staying in the Netherlands. He is represented before the Court by Mr J.M. Walls, 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, who was serving in the Eritrean army as a conscript, was ill-treated and detained by his superior for having requested leave to see his ailing father. He had been placed in the sun for a day with his hands and feet tied together. He absconded from prison and, as a consequence thereof, he was now considered a deserter in Eritrea. The applicant arrived in Greece in December 2007. His fingerprints were taken and he was transported from his place of arrival to Athens by boat. The applicant was not given the opportunity to apply for asylum in Greece. He was presented with a letter stating that he was to leave Greece within 30 days. He lived on the streets and was involved in skirmishes with the police. The applicant alleged that he had been beaten with clubs by Greek police during those skirmishes. Out of fear to be put in prison after the 30 days had lapsed, the applicant left for England, but was abandoned by his travel agent in the Netherlands where he arrived on 26 March 2008. His asylum application in that country was rejected by the Deputy Minister of Justice ( Staatssecretaris van Justitie ) on 13 November 2008, 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 applicant appealed that decision to the Regional Court ( rechtbank ) of The Hague, sitting in Zwolle. The applicant’s request to the Regional Court to stay her expulsion pending the appeal was granted on 14 December 2007. The appeal was rejected by the Regional Court on 17 June 2009. It held, in relevant part, that the applicant had insufficiently established that he would run a real risk of being expelled by the Greek authorities to Eritrea without due process, since the evidence adduced by him ( inter alia a number of reports by international organisations drawn up on the situation in Greece for asylum seekers) did not suffice to refute the firmly established principle of legitimate expectations – i.e. that Greece would abide by their obligations of non-refoulement. The applicant appealed that judgment to the Administrative Jurisdiction Division of the Council of State ( Afdeling Bestuursrechtspraak van de Raad van State – “the Division”) on 21 June 2009, which appeal was still pending when the present application was lodged. The applicant observed in this regard, firstly, that the Division had never before granted an appeal in cases concerning the same issue and that, secondly, applying for an injunction to the President of the Division in order to stay expulsion pending the appeal would, according to the Division’s established case-law, only be granted if a date for expulsion had been set, which was not yet the case. 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 Government of Greece submitted that the applicant had been registered as having entered the country illegally. They informed the Court that the applicant would have the right to lodge an application for asylum at Athens airport upon his arrival without being detained, in accordance with procedures set out in Greek legislation (presidential decrees 90/2008 and 220/2007). 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, 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. On 11 September 2009 the Administrative Jurisdiction Division of the Council of State rejected the applicant’s further appeal, finding that it raised no questions which required determination “in the interest of legal uniformity, legal development or legal protection in the general sense”. 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 Eritrea without a proper examination of his Article 3 claim having taken place. He alleges that, in Eritrea, he runs a real risk of being subjected to treatment in breach of Article 3 and claims that his indirect removal to an intermediary country, whose authorities may decide to return him to Eritrea, does not affect the responsibility of the Netherlands to ensure that he 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 Eritrea 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?