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 } .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 } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .s98A7B623 { margin-top:0pt; margin-bottom:0pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .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. 32256/09 by Ali YAHIA YASIR against the Netherlands and Greece lodged on 18 June 2009 STATEMENT OF FACTS THE FACTS The applicant, Mr Ali Yahia Yasir, is an Iraqi national who was born in 1980 and is currently staying in the Netherlands. He is represented before the Court by Ms M. Rinkes, a lawyer practicing in Arnhem. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant belongs to the minority Mandean religion which has suffered serious persecution in Iraq. He was unable to obtain protection against the problems this entailed for him. In April 2007 he was kidnapped, and when his family was unable to pay a ransom in order to secure his release, his kidnappers let him go after ten days on the condition that his mother sell her house. In April 2007 the applicant fled Iraq and went to Syria, shortly thereafter followed by his mother and his two sisters, after his mother had indeed sold her house. While in Syria, the family applied to the UNHCR. In October 2007, the applicant was no longer allowed to stay in Syria (the temporary visa held by his mother and sisters was extended in view of his mother’s medical situation). He went to Turkey where he stayed for 12 days before being “smuggled” into Greece, where he was apprehended by the Greek authorities and detained from 20 October 2007 until 24 January 2008 and subsequently from 5 February 2008 until 5 May 2008 in overcrowded and unhygienic conditions. He did not receive sufficient food and water. When he requested medical attention he was beaten. He did not receive any legal assistance and was not enabled to file a request for asylum. He further claims lawyers pretended to help him in order to get money out of him. The applicant arrived in Belgium on 18 May 2008 by plane from Athens. He applied for asylum in that country the following day and was placed in aliens’ detention. However, his asylum application was not processed as on 18 June 2008 the Greek authorities agreed that they were responsible for the examination of the asylum request pursuant to Council Regulation (EC) No.   343/2003 of 18 February 2003 (“the Dublin Regulation”). The applicant was released from detention in Belgium on 1 August 2008. As the applicant subsequently travelled to the Netherlands, the Belgian authorities were unable to transfer him to Greece. The applicant lodged an application for asylum in the Netherlands on 29   September 2008. It was rejected on 11 March 2009 since it was considered that, pursuant to the Dublin Regulation, Greece was responsible for examining the asylum request. The applicant’s appeal against this decision was rejected by the Regional Court ( rechtbank ) of The Hague, sitting in Almelo, on 28 May 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. The applicant has heard that his mother and sisters have been recognised as refugees within the meaning of Article 1 of the Convention relating to the Status of Refugees by Germany and invited by the German authorities to live there, and that they arrived in that country in April 2009. B.     Events after the introduction of the application On 23 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 further notice. 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 6 July 2009 the Greek Government stated that, if transferred to Greece, the applicant would have the right to lodge an application for asylum at Athens airport upon his arrival from the Netherlands and that he would not be detained pending the examination of his application. The Greek Government further submitted that the lodging of an asylum application in Greece 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. 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. 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 Iraq without a proper examination of his Article 3 claim having taken place. He alleges that, in Iraq, 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 Iraq, 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 Iraq 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   1a.     Are the Government able to confirm that the applicant’s mother and two sisters have been recognised as refugees within the meaning of Article 1 of the Convention relating to the Status of Refugees and that they have been admitted to Germany?   1b.     If this information is indeed correct, is there a possibility for the applicant to apply for asylum in Germany? 2.     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?   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 he were transferred to Greece, followed by a return to his country of origin?   4.     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?