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THIRD
SECTION
DECISION
Application no. 26494/09
Hayaati AHMED ALI
against the
Netherlands and Greece
The
European Court of Human Rights (Third Section), sitting on 24 January
2012 as a Chamber composed of:
Josep
Casadevall, President,
Corneliu
Bîrsan,
Alvina
Gyulumyan,
Egbert
Myjer,
Ineta
Ziemele,
Luis
López Guerra,
Linos-Alexandre
Sicilianos, judges,
and
Santiago Quesada, Section
Registrar,
Having
regard to the above application lodged on 19 May 2009,
Having
regard to the interim measure indicated to Government of the
Netherlands under Rule 39 of the Rules of Court,
Having
regard to the parties’ submissions,
Having
deliberated, decides as follows:
THE FACTS
- The
applicant, Ms Hayaati Ahmed Ali, is a Somali national who was born in
1980 and lives in Aalten. She was represented before the Court by Ms
F.K.H. Blom, a lawyer practising in Utrecht. The Netherlands and
Greek Governments were represented by their Agents, Mr R.A.A. Böcker
of the Netherlands Ministry of Foreign Affairs and Mr F.P.
Georgakopoulos, President of the Greek State Legal Council,
respectively.
A. The circumstances of the case
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
- The
applicant is an asylum seeker who entered the European Union through
Greece. According to the applicant, she and two others had been
detained upon arrival in Greece in November 2006 by the Greek
authorities because she had no identification documents. She claimed
that the Greek authorities had not allowed her to file a written or
oral request for asylum and that she and her cellmates had been
ill-treated by the Greek authorities (beaten, deprived of food and
drink and drugged prior to deportation) during the five days she had
been detained in Greece. On the fifth day Greek officials had
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 had
been brought contained a sedative; they had subsequently been
escorted to a vehicle that took them to a white airplane. With that
aircraft the applicant had flown to a country unknown to her where
Arabic was spoken. There a transit had been made to a flight that
took the applicant to Mogadishu, where she had landed on 17 November
2006.
- According to the Greek Government, the applicant had
entered Greece illegally on 10 November 2006. She had no identity
documents and had given her name as Zara Suleiman. A decision had
been taken for her expulsion and detention, but the execution of this
decision had been suspended for the duration of one month, during
which time the applicant was to report to the police twice. The
applicant had not been expelled to Somalia or any other country.
- The
applicant arrived in the Netherlands on 10 January 2007. She is
currently staying in that country, where she applied for asylum on 15
March 2007. This application was dismissed, the Dutch administrative
and judicial authorities holding that pursuant to Council Regulation
(EC) No. 343/2003 (“the Dublin Regulation”) Greece was
competent to conduct the asylum proceedings.
B. Developments 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 to Greece until further notice
(Rule 39 of the Rules of Court).
- On
3 November 2009 the Chamber decided, under Rule 54 § 2 (b) of
the Rules of Court, that notice of the application should be given to
the Governments and that they should be invited to submit written
observations on the admissibility and merits of the case. The
applicant replied to the observations submitted by the Governments.
Written observations were further received from the Council of Europe
Commissioner for Human Rights and the United Nations High
Commissioner for Refugees, whom the Chamber had invited to intervene
as third parties in the Court’s proceedings (Article 36 §
2 of the Convention), and from the Finnish and United Kingdom
Governments, the Greek Helsinki Monitor, the Centre for Advice on
Individual Rights in Europe and Amnesty International, whom the
President had authorised to intervene (Article 36 § 2 of the
Convention and Rule 44 § 2).
- On
8 February 2011 the Court requested the Netherlands Government to
indicate what, if any, practical consequences they would draw from
the M.S.S. v. Belgium and Greece judgment ([GC], no. 30696/09,
21 January 2011). This judgment concerned the case of an Afghan
national, who had entered the European Union through Greece, had
travelled on to Belgium where he had applied for asylum, and been
returned to Greece by the Belgian authorities. In the judgment, the
Court had found inter alia, as regards Greece, violations of
Article 3 in respect of the applicant’s detention conditions in
Greece (§§ 223-234) and in respect of his living conditions
there (§§ 249-264); a violation of Article 13 taken
together with Article 3 in respect of the Greek asylum procedure (§§
294-322); and, regarding Belgium, violations of Article 3 in respect
of the Belgian authorities’ decision to expose the applicant to
the asylum procedure in Greece (§§ 338 361) and
in respect of the decision of those authorities to expose the
applicant to the detention and living conditions in Greece (§§
362-368).
- By
letter of 25 March 2011 the Netherlands Government replied that the
applicant would be admitted to the Dutch asylum procedure and that
her asylum application would be assessed on its merits. As the
applicant had exhausted domestic remedies in respect of the decision
that Greece was responsible for examining the asylum application, she
would be required to submit a new asylum application.
- Subsequently
the applicant was requested to inform the Court whether, in the light
of the Dutch Government’s reply, she wished to maintain her
application. In a letter of 13 April 2011 the applicant informed the
Court that indeed she did. She explained that, if her asylum
application of 15 March 2007 had been examined on its merits straight
away, she would have qualified for a temporary residence permit for
the purpose of asylum pursuant to a policy concerning Somalis
originating from South and Central Somalia in place at the time. Five
years later, i.e. in March 2012, she would then have been eligible
for an indefinite residence permit. Withdrawing her application to
the Court would mean losing that entitlement as the starting date for
any eligibility of this nature would now be counted from the moment
she submitted a new asylum application.
- In
their comments of 9 and 31 May 2011 respectively, the Netherlands and
Greek Governments reiterated that the applicant would not be
transferred to Greece; since such transfer was central to the
application, they considered that the application had become without
substance. Moreover, they submitted that the legal question in the
case of M.S.S. was whether a Contracting Party was free to
transfer a person to another Contracting Party without an examination
of the grounds on which the asylum application was based. The refusal
of a residence permit, let alone the modalities of a residence
permit, were not part of that question, and nor could they have been
as the Court only had jurisdiction to decide on the question whether
an asylum seeker would be exposed to a real risk of a violation of
Article 3 of the Convention upon return to his country of origin. The
question of how the State avoided that risk, so the Governments
submitted, was up to the State itself.
COMPLAINTS
Against the Netherlands
- The
applicant complained that her expulsion to
Greece would be in breach of Article 3 of the Convention because of
the danger of refoulement by the Greek authorities to her
country of origin without proper asylum proceedings. The applicant
also complained that she would run a real risk of being subjected to
treatment in breach of Article 3 in Greece itself.
The
applicant further complained under Article 13 that the Dutch
authorities had not evaluated in substance the risk of refoulement
from Greece to Somalia and the risk of a violation of Article 3 in
case of a return to that country.
Against Greece
- The
applicant complained of having been subjected to treatment in breach
of Article 3 of the Convention during her stay in Greece. She also
complained 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.
Invoking
Article 13, the applicant further complained that the Greek
authorities would, once again, not examine – let alone
rigorously examine – her asylum claim and that she would 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.
THE LAW
A. Complaints under Articles 3, 5 and 6 against Greece
- The
Court reiterates that under Article 35 § 1 of the Convention it
examines a complaint if “all domestic remedies have been
exhausted” and if it has been submitted “within a period
of six months from the date on which the final decision was taken”.
Where no effective remedy is available to an applicant, the
time-limit expires six months after the date of the acts or measures
about which he or she complains, or after the date of knowledge of
that act or its effect or prejudice on the applicant (see Younger
v. the United Kingdom (dec.), no. 57420/00, ECHR 2003-I).
- The
Court notes that the alleged events in Greece of which the applicant
complained occurred in November 2006 and that they culminated in her
alleged expulsion to Somalia where she claimed to have arrived on
17 November 2006. Having regard to her claim that no effective
remedies for her Convention complaints are available in Greece, this
complaint under Article 3 should thus at the latest have been
introduced with the Court in May 2007, by which time she had already
been in the Netherlands for some four months. This complaint was,
however, not introduced until 19 May 2009. It follows that this
complaint has been introduced out of time and must be rejected
pursuant to Article 35 §§ 1 and 4 of the Convention.
B. The remainder of the application
- The
Court notes that the applicant has been or will be admitted to the
asylum procedure in the Netherlands, entailing that she will not be
returned to Greece or any other country without a full examination of
her asylum claims by the Dutch authorities. The question therefore
arises whether there is an objective justification for continuing to
examine the application or whether it is appropriate to apply Article
37 § 1 of the Convention, which provides as follows:
“The Court may at any stage of the proceedings
decide to strike an application out of its list of cases where the
circumstances lead to the conclusion that
(a) the applicant does not intend to pursue
his application; or
(b) the matter has been resolved; or
(c) for any other reason established by the
Court, it is no longer justified to continue the examination of the
application.
However, the Court shall continue the examination of the
application if respect for human rights as defined in the Convention
and the Protocols thereto so requires.”
- The
applicant wishing to pursue her application, the Court must, in order
to ascertain whether Article 37 § 1 (b) applies to the present
case, answer two questions in turn: first, whether the circumstances
complained of directly by the applicant still obtain and, second,
whether the effects of a possible violation of the Convention on
account of those circumstances have also been redressed (see Sisojeva
and Others v. Latvia (striking out) [GC], no. 60654/00, §
97, 15 January 2007, and El Majjaoui and Stichting Touba Moskee v.
the Netherlands (striking out) [GC], no. 25525/03, § 30, 20
December 2007). In the present case, that entails first of all
establishing whether the applicant still risks being returned to
Greece and, from there, to Somalia, without her asylum application
being assessed on its merits; after that, the Court must consider
whether the measures taken by the authorities constitute sufficient
redress for the applicant’s complaints.
- As
to the first question, it is clear that the merits of the applicant’s
asylum application are being, or will be, assessed in the Netherlands
and that there is no question of the applicant being expelled to
Greece.
- As regards the second question, the Court considers
that the mere fact that the applicant will not be eligible for an
indefinite residence permit in 2012, which she claimed she would have
been had her original asylum application been examined on its merits,
is not capable of raising an issue under Article 3, either taken
alone or in conjunction with Article 13. In this respect it is to be
borne in mind that, although Article 3 may in certain circumstances
imply the obligation not to expel a person (see Chahal v. the
United Kingdom, judgment of 15 November 1996, Reports of
Judgments and Decisions 1996-V, p. 1853, §§ 73-74;
Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99
and 46951/99, §§ 67-68, ECHR 2005-I), the protection
afforded by Article 3 cannot be construed as guaranteeing, as such,
the right to a residence permit (see Bonger v. the Netherlands
(dec.), no. 10154/04, 15 September 2005), let alone the right to
a particular residence permit. As the Court has previously held, the
Convention does not lay down for the Contracting States any given
manner for ensuring within their internal law the effective
implementation of the Convention (see Sisojeva and Others v.
Latvia (striking out) [GC], no. 60654/00, § 90, ECHR
2007-I). Accordingly, if an applicant receives protection against
being returned to a country in respect of which substantial grounds
have been shown for believing that he or she would face a real risk
of being subjected to treatment contrary to Article 3, the Court is
not empowered to rule on whether the individual concerned should be
granted one particular legal status rather than another, that choice
being a matter for the domestic authorities alone (see mutatis
mutandis Sisojeva and Others, cited above, § 91).
Whether or not the applicant in the present case requires such
protection will, as noted above, be assessed in the asylum
proceedings to which she will now be admitted in the Netherlands.
- Having
regard to the facts, therefore, that the applicant will not be
expelled to Greece, that the merits of her asylum claim will be
examined by the Dutch authorities, and that – should those
authorities decide that a return to her country of origin would not
expose her to a real risk of being subjected to treatment in breach
of Article 3 – it is open to the applicant to apply to the
Court once more, the Court considers that the present complaints have
been adequately and sufficiently remedied.
- Consequently,
the Court finds that both conditions for the application of Article
37 § 1 (b) of the Convention are met. The matter giving rise to
the applicant’s complaints can therefore now be considered to
be “resolved” within the meaning of Article 37 § 1
(b). Finally, no particular reason relating to respect for human
rights as defined in the Convention requires the Court to continue
its examination of the application under Article 37 § 1 in
fine.
- Accordingly,
this part of the application should be struck out of the Court’s
list of cases.
For these reasons, the Court unanimously,
Declares inadmissible the applicant’s complaints under
Articles 3, 5 and 6 directed against Greece;
Decides to strike the remainder of the application out of its
list of cases.
Santiago Quesada Josep Casadevall
Registrar President
