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URL: http://www.bailii.org/eu/cases/ECHR/2011/1558.html
Cite as: [2011] ECHR 1558

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THIRD SECTION

DECISION

Application no. 28631/09
by Mohamed DJELANI SUFI and HASSAN GUDUUD
against the Netherlands and Greece
and 12 other applications
(see list appended)

The European Court of Human Rights (Third Section), sitting on 20 September 2011 as a Committee composed of:

Luis López Guerra, President,
Egbert Myjer,
Mihai Poalelungi, judges,
and Marialena Tsirli, Deputy Section Registrar,

Having regard to the applications lodged on the dates listed in the annex to this decision,

Having regard to the interim measures indicated to the Government of the Netherlands under Rule 39 of the Rules of Court,

Having regard to the information submitted by the respondent Governments and the comments submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants’ personal data and the names of their representatives are listed in the annex to this decision. The Netherlands and Greek Governments (“the 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 cases

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

The applicants are asylum seekers who entered the European Union via Greece. They are currently staying in the Netherlands. Their asylum applications in the Netherlands were 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 applications

In all except one of the present applications 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 applicants to Greece until further notice (Rule 39 of the Rules of Court). In application no. 34565/09 the President issued such an interim measure initially only for a limited period, but the measure was subsequently prolonged by the Chamber until further notice.

On 3 November 2009 the Chamber decided, under Rule 54 § 2 (b) of the Rules of Court, that notice of the applications should be given to the Governments and that they should be invited to submit written observations on the admissibility and merits of the cases. The applicants 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 applicants would be admitted to the Dutch asylum procedure and that their asylum applications would be assessed on their merits.

Subsequently, on 30 March 2011, the applicants’ representatives were requested to inform the Court whether, in the light of the Dutch Government’s reply, the applicants wished to maintain their applications; if no reply to that query was received by a certain time-limit, it would be assumed that the applicants did not object to their cases being struck out of the Court’s list of cases.

No reply was received in application nos. 29936/09 and 34565/09.

In application no. 32729/09 the Court’s letter of 30 March 2011 had erroneously not been sent to the applicant’s representative but to a lawyer working at the same law firm. That lawyer replied on 11 April 2011 that the applicant wanted to withdraw his application. No reply was received to the Court’s subsequent letter of 18 April 2011 requesting either a reply to the letter of 30 March 2011 by the applicant’s representative or a power of attorney by which the applicant authorised the lawyer who had replied to the letter of 30 March 2011 to represent him in the present proceedings.

The representatives in the other applications informed the Court that their clients wished to withdraw their applications.

COMPLAINTS

The applicants complained that their expulsion to Greece would be in breach of Article 3 of the Convention because of the danger of refoulement by the Greek authorities to their countries of origin without proper asylum proceedings. The applicants also complained about the lack of support of asylum seekers in Greece and of a risk of violent treatment by the Greek authorities.

With one exception (application no. 33212/09), the applicants further complained under Article 13 that the Dutch authorities had not evaluated in substance the risk of refoulement from Greece to their countries of origin and the risk of a violation of Article 3 in case of a return to those countries.

The applicants in application nos. 29936/09, 29940/09, 31930/09, 32212/09 and 33212/09 also raised complaints under Articles 5, 6 and/or 8 of the Convention.

THE LAW

The Court notes that the applicants have been or will be admitted to the Dutch asylum procedure, entailing that they will not be returned to Greece or any other country without a full examination of their asylum claims by the Dutch authorities, and that for this reason they do not intend – or, as regards the applicants in application nos. 29936/09, 32729/09 and 34565/09, may be assumed not to intend – to pursue their applications. In these circumstances, and having regard to Article 37 § 1 (a) of the Convention, the Court is of the opinion that it is no longer justified to continue the examination of the applications. Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the cases.

For the reasons set out above, it is appropriate to lift the interim measures indicated under Rule 39 of the Rules of Court and to strike the cases out of the list.

For these reasons, the Court unanimously

Decides to strike the applications out of its list of cases.

Marialena Tsirli Luis López Guerra
Deputy Registrar President

Appendix

Application number	Applicant’s name and representative’s name	Nationality	Introduction date
28631/09	DJELANI SUFI Mohamed and HASSAN GUDUUD Faduma represented by Mr J.M. Walls	Somali	01/06/2009
29936/09	SAIED AHMED Maryam represented by Mr H.A. Jeuring	Somali	08/06/2009
29940/09	MOHAMMED JELE Suleeqo represented by Mr W. de Kleine	Somali	08/06/2009
30416/09	ABWALI Fahad represented by Ms M. Pals	Somali	11/06/2009
31930/09	AWEYS AHMED Abdulahi represented by Mr P.J. Schüller	Somali	18/06/2009
32212/09	MOHAMED ILMI Safiya represented by Ms J.A. Pieters	Somali	18/06/2009
32256/09	YAHIA YASIR Ali represented by Ms M.J.A. Rinkes	Iraqi	18/06/2009
32729/09	MOOSA MAHAMOUD Mahdi represented by Mr J.M. Walls	Somali	21/06/2009
32758/09	ALEM ABRAHA Temei represented by Mr J.M. Walls	Eritrean	21/06/2009
33212/09	ALI ELMI Shukri represented by Mr B.J. Manspeaker	Somali	23/06/2009
34565/09	NUUR HAJI Mooliid represented by Ms A.M. Westerhuis	Somali	24/06/2009
36092/09	ABSHIR SAMATAR Mahad represented by Mr J.G. Wiebes	Somali	07/07/2009
37728/09	MALAAQ SHOWRI Hassan represented by Ms S. Zwiers	Somali	17/07/2009