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URL: http://www.bailii.org/eu/cases/ECHR/2011/1774.html
Cite as: [2011] ECHR 1774

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FIRST SECTION

DECISION

Application no. 61567/10
Hamda ALI GEDI against Austria

and 3 other applications
(see list appended)

The European Court of Human Rights (First Section), sitting on 4 October 2011 as a Chamber composed of:

Nina Vajić, President,
Elisabeth Steiner,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Linos-Alexandre Sicilianos,
Erik Møse, judges,
and Søren Nielsen, Section Registrar,

Having regard to the above applications lodged on 25 and 26 October 2010,

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

Having regard to the information submitted by the respondent Government 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 Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs.

A. The circumstances of the case

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

The applicants are asylum seekers who entered the European Union via Greece. They arrived in Austria between June and August 2010 and lodged asylum requests.

The Federal Asylum Office (Bundesasylamt) dismissed their asylum requests. Relying on Council Regulation (EC) No 343/2003 (“Dublin II Regulation”, hereinafter “the Dublin Regulation”) it held in each case that Greece was competent to conduct the asylum proceedings. It further declared the applicants’ expulsion to Greece permissible.

The first and second applicants were held in detention with a view to their expulsion. They did not lodge an appeal against the Federal Asylum Office’s decision. They submitted that they did not have any access to legal advice and did not receive any other support in detention.

The third and fourth applicants each lodged an appeal against the Federal Asylum Office’s decision with the Asylum Court (Asylgerichtshof). Their appeals were not granted suspensive effect.

In its decision of 28 October 2010 the Asylum Court found in the third applicant’s case that his allegations of having been subject to refoulement from Greece to Turkey without a proper examination of his asylum claim were not credible. Moreover, referring to various country reports, the Asylum Court dismissed the third applicant’s complaints about lack of access to asylum proceedings and about lack of support for asylum seekers in Greece.

It appears that the fourth applicant’s appeal was still pending before the Asylum Court when he lodged his application, but was subsequently dismissed.

B. The Court’s Rule 39 indications

On 25, 26 and 27 October 2010, respectively, the President of the First Section decided to apply interim measures under Rule 39 of the Rules of Court in the applicants’ cases, requesting the Austrian Government to stay the applicants’ expulsion to Greece until further notice.

The applications were communicated to the Government without questions as to the admissibility and merits pending the outcome of the Grand Chamber proceedings in the case of M.S.S v. Belgium and Greece.

C. The Grand Chamber’s judgment of 21 January 2011 in the case of M.S.S. v. Belgium and Greece

On 21 January 2011 the Grand Chamber gave judgment in the case of M.S.S. v. Belgium and Greece (application no. 30696/09). The case concerned an Afghan national, who entered the European Union through Greece. He travelled on to Belgium where he applied for asylum in February 2009. The Aliens Office decided to return him to Greece under the Dublin Regulation. He was expelled to Greece on 15 June 2009. He was detained there on two occasions, for a few days and a week, respectively, in a detention facility next to Athens airport. The remainder of the time he lived in the street with no means of subsistence.

The Court found violations of Article 3 in respect of the applicant’s detention conditions in Greece (§§ 223-234) and in respect of his living conditions (§§ 249-264). In reaching this conclusion, it had regard to a wide range of sources, including reports and submissions from UNHCR and the Council of Europe Commissioner for Human Rights, who had both participated as third party interveners in the proceedings. Furthermore the Court found a violation of Article 13 taken together with Article 3 (§§ 294-322). It noted that it was in the first place for the Greek authorities to examine the risks to which the applicant would be exposed if returned to his country of origin but noted that the Greek asylum procedure was marked by major structural deficiencies. As a result asylum seekers had little chance to have their applications seriously examined. Moreover, there was a danger of forced returns of asylum seekers to high-risk countries.

Regarding Belgium, the Court found a violation of Article 3 in respect of the authorities’ decision to expose the applicant to the asylum procedure in Greece, whose deficiencies must have been known to them when they issued the expulsion order against the applicant (§§ 338-361). Moreover, the Court found a violation of Article 3 in respect of the Belgian authorities’ decision to expose the applicant to the detention and living conditions in Greece as the relevant facts were well known and freely ascertainable from a wide number of sources before the applicant’s transfer (§§ 362-368). It also found a violation of Article 13 as the applicant did not have an effective remedy under Belgian law against the expulsion order (§§ 385-397).

D. Subsequent developments

On 10 February 2011 the Court requested the Government to indicate what, if any, practical consequences they would draw from the M.S.S. v. Belgium and Greece judgment.

By letter of 10 March 2011 the Government replied in the first two applicants’ cases that Austria would exercise its right under the Dublin Convention (the sovereignty clause) to assume the examination of their asylum claims. In the third and fourth applicants’ cases the Government replied that the Asylum Court’s judgments had become final. Nevertheless, the Asylum Court was examining the possibility to make use of the sovereignty clause under the Dublin Convention.

The applicant’s representatives were given an opportunity to comment. The first two applicants replied that the Federal Asylum Office’s decisions had not yet been set aside. They submitted that they wished to maintain their complaints under Article 3 of the Convention, claiming in particular that their detention with a view to expulsion in itself amounted to inhuman treatment. They also wished to maintain their complaint under Article 13 of the Convention. They also claimed compensation for non-pecuniary damage and reimbursement of procedural costs. The third and fourth applicants replied that the Federal Asylum Court had not yet set aside its previous decisions. In any case they wished to maintain their complaint under Article 13 of the Convention.

Subsequently, the Government was requested in all four cases to provide further information on the state of proceedings. By letter of 24 June 2011 the Government informed the Court that the asylum authorities were actually making use of the sovereignty clause under the Dublin Convention. They indicated in each case the date of the decision accepting the applicant’s asylum claim for an examination of the merits.

The applicants were informed accordingly. The first and second applicants did not make further submissions. The third and fourth applicants had already sent a letter on 6 June 2011 confirming that the Federal Asylum Office was now examining the merits of their asylum claims. They stated that they did not have objections to striking off the complaint under Article 3 of the Convention, while they wished to maintain the application in respect of the complaint under Article 13. They also asked for reimbursement of procedural costs.

COMPLAINTS

The applicants complained under Article 3 of the Convention that their threatened expulsion to Greece constituted a real risk of ill-treatment because of the lack of access to proper asylum proceedings in Greece and the lack of support for asylum seekers in Greece.

Furthermore the applicants raised complaints under Article 13. The first and second applicants complained that during their detention with a view to their expulsion they had no access to legal counsel or other support and had therefore been unable to challenge the Federal Asylum Office’s decisions. The third and forth applicants submitted that their appeals against the Federal Asylum Office’s decision had not been awarded suspensive effect and could therefore not be regarded as an effective remedy within the meaning of the Convention.

THE LAW

Article 37 of the Convention provides:

“1. 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.

2. The Court may decide to restore an application to its list of cases if it considers that the circumstances justify such a course.”

In order to determine whether an application should be struck out of the list pursuant to Article 37 § 1 (c) of the Convention, the Court must consider whether “the circumstances lead it to conclude that “for any other reason ... it is not longer justified to continue the examination of [it]”. The Court recalls that it enjoys a wide discretion in identifying grounds capable of being relied upon in a strike out decision on this basis; however, it also recalls that such grounds must reside in the particular circumstances of each case (Association SOS Attentats and de Boery v. France [GC], (dec.), no. 76642/01, § 37, ECHR 2006 XIV, and M.H. and A.S. v. the United Kingdom (dec.), nos. 38267/07 and 14293/07, 16 December 2008).

In the Court’s view, the particular circumstances of these applications are such that it is no longer justified to continue their examination (see, Ali Zada and Others v. Austria (dec.), no. 17127/10, 5 July 2011, raising the same issues as the present case, and also, as a comparable case relating to an undertaking not to return asylum seekers under the Dublin Regulation, B.S. and 232 other applications v. the United Kingdom (dec.), no. 7935/09, 30 November 2010).

The applicants’ complaints under Articles 3 are based on the consequences of their return to Greece, on the conditions of reception in that country and the risk of expulsion from that country to their countries of origin without a proper examination of their asylum requests. The applicants will now benefit from the undertaking given by the Austrian Government. The practical effect of this undertaking is that they will not be returned to Greece or any other country without a full examination of their asylum claims by the Austrian authorities. Consequently, there is no longer a basis for the applicants’ complaints under Article 13 either, as these complaints related to the lack of legal representation and the lack of a remedy with suspensive effect against the decision to expel them to Greece. Moreover, the applicants will have the opportunity to lodge new applications with the Court (including the possibility of requesting an interim measure under Rule 39 of the Rules of Court) should that need arise.

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 present applications.

Finally, the Court notes that the applicants asked for reimbursement of procedural costs. The first and second applicants also requested compensation for non-pecuniary damages. Pursuant to Rule 43 § 4 of the Rules of Court, the Court has discretion to award costs if a case is struck out of the list. In the present cases, the Court does not consider it appropriate to make such an award. Furthermore, the Court notes that it is not empowered to award damages if a case is struck out of the list.

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 join the applications;

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

Dismisses the applicants’ claims.

Søren Nielsen Nina Vajić
Registrar President

Appendix

Application number	Applicant’s name and representative’s name	Nationality	Introduction date
61567/10	ALI GEDI Hamda Represented by Mr G. Mory	Somalian	25/10/2010
61570/10	OMAR HAIDER Faisa represented by Mr G. Mory	Somalian	25/10/2010
62152/10	JAFARI Said Ali Sina represented by Ms N. Lorenz	Afghan	26/10/2010
62153/10	GHASSEMI Hanif represented by Ms N. Lorenz	Afghan	26/10/2010