European Court of Human Rights

FIRST SECTION

DECISION

Applications nos 30457/09 and 30703/09
Storai BARAKZAI against the Netherlands and Greece
and Ali HABIBI and Fatima ALI ZADEH against the Netherlands and Greece

The European Court of Human Rights (First Section), sitting on 13 December 2011 as a Chamber composed of:

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

Having regard to the above applications lodged on 11 June 2009,

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

Having regard to the observations submitted by the respondent Governments and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants, Ms Storai Barakzai (application no. 30457/09) and Ali Habibi and Fatima Ali Zadeh (application no. 30703/09), are Afghan nationals who were born in 1970, 1977 and 1983 respectively. The first applicant is represented before the Court by Mr E.J.P. Cats, a lawyer practising in Emmen, the Netherlands. The next two applicants are represented before the Court by Ms M.M. Polman, a lawyer practising in Rotterdam, the Netherlands. The Dutch Government are represented by their Agent, Mr R.A.A. Böcker, of the Ministry of Foreign Affairs. The Greek Government are represented by their Agent, Mr K. Georgiadis, Adviser at the State Legal Council.

A.  The circumstances of the case

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

In the first case (application no. 30457/09) the applicant was promised in marriage to a powerful owner of a large estate by her brothers. However, she did not wish to marry this man and fled Afghanistan in order to prevent the marriage from taking place.

The applicant arrived in Greece by boat from Turkey in January 2008. She was immediately arrested and detained. She was released after two weeks and told to leave the country within a month. After having witnessed and experienced how asylum seekers were being treated, she no longer wished to apply for asylum in Greece and decided to go to the Netherlands where a niece of her was living.

She arrived in the Netherlands in April 2008. Her asylum application in that country was rejected since it was considered that, pursuant to Council Regulation (EC) No. 343/2003 of 18 February 2003 (“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 12 May 2009. The Regional Court having reached its decision without a hearing, the applicant lodged an objection (verzet) against it, which proceedings, in so far as the Court has been informed, are currently still pending. However, it was not open to the applicant to apply for an injunction to stay her transfer to Greece pending these proceedings.

The applicant was transferred to Greece on 19 June 2009. On that same day, the Court decided to indicate to the Greek Government, pursuant to Rule 39 of the Rules of Court, 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 pending the proceedings before the Court.

In the second case (application no. 30703/09), the applicants fled Afghanistan in 2004 as their families opposed their marriage and the second applicant ran the risk of being forced to marry a man she did not know. They lived in Iran for about three years, until the second applicant saw her brother in the city they were living in and the couple decided to move on.

In September 2007 the applicants arrived in Greece. They were not given the opportunity to apply for asylum. They were apprehended by the Greek authorities and detained for a number of days, during which the first applicant was separated from his – pregnant – wife. When they were released, the applicants were told to leave Greece. They were not provided with any shelter or food. The second applicant gave birth to the couple’s second child whilst in Greece.

The applicants arrived in the Netherlands in April 2008. Their asylum application in that country was rejected since it was considered that, pursuant to Council Regulation (EC) No. 343/2003 of 18 February 2003 (“the Dublin Regulation”), Greece was responsible for examining the asylum request. The applicants’ appeal against this decision was rejected by the Regional Court of The Hague, sitting in Almelo, on 4 June 2009. The Regional Court having reached its decision without a hearing, the applicants lodged an objection against it, which proceedings, in so far as the Court has been informed, are currently still pending. However, it was not open to the applicants to apply for an injunction to stay their transfer to Greece pending these proceedings.

The applicants were transferred to Greece on 19 June 2009. On that same day, the Court decided to indicate to the Greek Government, pursuant to Rule 39 of the Rules of Court, 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 from their territory pending the proceedings before the Court.

B.  Developments after the introduction of the applications

On 8 July 2009, the President of the Chamber decided, under Rule 54 § 2 (b) of the Rules of Court, that notice of the applications should be given to the Government of Greece and that the Government should be invited to submit written observations on the admissibility and merits of the case. The applicants replied to the observations submitted by the Government of Greece. Written observations were received by the Government of the United Kingdom, whom the President had authorised to intervene (Article 36 § 2 of the Convention and Rule 44 § 2).

On 9 August 2011 the Court requested the Netherlands and Greek Governments 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 17 August 2011 the Government of the Netherlands requested the Court to seek confirmation by the applicants’ counsels of their clients’ continued residence in Greece. It was submitted that this information was essential for answering the Court’s question set out in the letter dated 9 August 2011.

By letter of 22 August 2011 the Government of Greece submitted that in July 2009 the applicants had lodged a request for asylum with the Greek authorities but since then they had shown no interest in pursuing the proceedings pertaining to the examination of their applications. The Government of Greece considered that the cases should be struck out of the list.

On 7 September 2011 the Court requested the applicants’ representatives to submit information on their clients’ whereabouts.

By letter dated 29 September 2011 the first applicant’s representative informed the Court that he had asked the Greek Refugee Council in Athens about the whereabouts of his client and received the answer that they had no knowledge of her.

By letter dated 28 September 2011 the second and third applicants’ representative informed the Court that she was no longer in contact with her clients.

By letter dated 18 October 2011 the Government of the Netherlands requested that since contact between the applicants and their representatives had not been resumed, as was evident from the letters from both representatives, and since the whereabouts of all applicants were unknown, the Court strike the cases out of the list pursuant to Article 37 of the Convention.

COMPLAINTS

A.  Against Greece

The applicants complain that, if returned to Afghanistan, they will be subjected to treatment in breach of Article 3 of the Convention. They allege that their claims will not be examined – let alone rigorously examined – by the Greek authorities, and in this respect they also invoke Article 6 and Article 13 in conjunction with Article 3. They argue that, in Greece, they will not be enabled to elaborate their claim with the assistance of an interpreter, that they will not have an effective remedy to challenge a rejection of their asylum request, and that they will not be provided with legal assistance.

B.  Against the Netherlands

Invoking Article 3 of the Convention, as well as Article 6 and Article 13 in conjunction with Article 3, the applicants complain that by refusing to examine the merits of their asylum application and by returning them to Greece – where they will either not be enabled to apply for asylum or, if they are, where the asylum procedure is characterised by serious failings –, the Dutch authorities exposed them to a real risk of being returned to Afghanistan without a proper examination of their Article 3 claim having taken place.

THE LAW

The Court considers it appropriate to join the applications (Rule 42 § 1 of the Rules of Court).

Moreover, the Court notes that, as it transpires from their letters dated 28 and 29 September 2011, the applicants’ representatives are not aware of their whereabouts. The Court is of the opinion that the applicants’ failure to keep their representatives informed of their whereabouts or at least to provide them with a means to contact them must be taken as indicating that they have lost interest in pursuing their application. Further, the Court notes that on 19 June 2009 it indicated to the Government of Greece, under Rule 39 of the Rules of Court, 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 from Greece pending the proceedings before the Court. It does not appear – nor has it been argued – that the Government of Greece would have disrespected this decision. Given the impossibility of establishing any communication with the applicants, the Court considers that their representatives cannot now meaningfully pursue the proceedings before it (see Ramzy v. the Netherlands (striking out), no. 25424/05, §§ 64-66, 20 July 2010).

In these circumstances, the Court concludes that it is no longer justified to continue the examination of the applications within the meaning of Article 37 § 1 (c) of the Convention. Furthermore, the Court finds no reasons of a general character, as defined in Article 37 § 1 in fine, which would require the examination of the applications by virtue of that Article.

For the reasons set out above, it is appropriate to lift the interim measures indicated to the Government of Greece 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.

Søren Nielsen Nina Vajić
Registrar President