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 } .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 } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .sA36B60A1 { font-family:Arial; font-style:italic } .sEC177689 { margin-top:0pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify } .s3B3A5DE9 { margin-top:12pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify } .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 } .s29100277 { font-family:Arial; font-weight:bold } .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 } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s3133A7C8 { font-family:Arial; color:#0069d6 }   22 July 2009   THIRD SECTION Application no. 34565/09 by Mooliid NUUR HAJI against the Netherlands and Greece lodged on 24 June 2009 STATEMENT OF FACTS THE FACTS The applicant is a Somali national, who was born in 1990 and is currently staying in the Netherlands. He is represented before the Court by Ms A.M. Westerhuis, a lawyer practising in Drachten. The facts of the case, as submitted by the applicant, may be summarised as follows. According to the information set out in the application form, the applicant is unmarried, belongs to the Jaji [1] and hails from Mogadishu. He left his country of origin to escape the bad security situation there, which had seriously affected him. In 2003 he had been taken hostage and only released after a ransom was paid. He had been ill-treated whilst deprived of his liberty. The applicant’s father had been forced to pay protection money to members of a more powerful clan. His father had been shot dead on 1   January 2004 in the applicant’s presence. Also in 2004, the applicant and his sister had been attacked and ill-treated in the street, in the course of which attack he had lost consciousness. The applicant had furthermore been threatened at gun point by a non-paying customer in the restaurant where he was working. He had taken the decision to flee the country after he was approached by the Islamic Courts who were press-ganging young men to fight against the Ethiopian army. On 16 December 2007 the applicant lodged an application for asylum in the Netherlands. In the course of the proceedings on his application he was confronted with the fact that he had previously requested asylum in the Netherlands on 23 August 2007. On that occasion he had called himself Abdirahman Mahamud Rooble and had stated that he was born in 1980 and was married. In interviews with the Dutch immigration authorities, the applicant admitted that, before coming to the Netherlands, he had been in Greece, where he had been apprehended by the authorities on the island of Samos on 28 March 2007. He submitted that he had been kept in detention for 12 days and then told that he should leave the country within 30 days. He had not been provided with any accommodation and had slept mostly in parks. He had not been enabled to request asylum. The Dutch authorities had intended to refuse the applicant’s first asylum application because they were of the opinion, pursuant to Council Regulation (EC) No. 343/2003 of 18 February 2003 (“the Dublin Regulation”), that Greece was responsible for the examination of the asylum request. However, as the applicant had left for an unknown destination in November 2007, that decision had not been taken at that time. After the applicant had once more applied for asylum, but under a different name, the Deputy Minister of Justice ( Staatssecretaris van Justitie ), on 17 July 2008, issued the decision she had intended to take previously. The applicant filed an appeal against this decision with the Regional Court ( rechtbank ) of The Hague, sitting in Zwolle, and also applied for a provisional measure in order to stay his transfer to Greece pending the appeal. On 17 June 2009, the Deputy Minister of Justice informed the applicant that he would not be allowed to await the outcome of his request for a provisional measure as the period within which his transfer to Greece had to take place under the provisions of the Dublin Regulation was about to expire. The Deputy Minister intended to transfer the applicant on 30 June 2009. On 29 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 until 8 July 2009. On 7 July 2009 the Chamber decided to maintain this interim measure until further notice. COMPLAINTS 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. 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? [1] .     According to the country report on Somalia compiled by the Netherlands Ministry of Foreign Affairs in March 2009, the Jaji are one of the groups of which it was not clear whether it was an ethnic minority group or belonged to a clan or clan family. In view of the uncertainty about the current role of the clan system in Somalia, it was also not clear whether its members could turn to other clans for protection.