European Court of Human Rights

THIRD SECTION

Application no. 45858/11
D. O. R.
against Spain
lodged on 27 July 2011

STATEMENT OF FACTS

THE FACTS

The applicant, Ms D. O. R., is a Colombian national who seeks international protection in Spain. She is represented before the Court by Mr A. Garcia Cores, a lawyer practising in Madrid.

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

On 14 July 2011, the applicant arrived at Madrid-Barajas Airport from Colombia. On 15 July 2011, she submitted a request for international protection to the Spanish authorities. The applicant argued that she was being chased by a paramilitary Colombian group rival to the one to which her brother belonged. She alleged that this group had killed four members of her family, namely, two brothers, an aunt and a cousin, and shot and seriously wounded her father, the Colombian authorities having demonstrated that they were not in a position to protect her from the threat posed to her life and physical integrity by the group.

On 18 July 2011 the Minister of Home Affairs rejected the applicant’s request on the basis of Article 21 § 2 (a) and (b) of Law 12/2009 of 30 October on the right to asylum and subsidiary protection. He considered that the reasons put forward by the applicant did not fall within the legal grounds for granting international protection and that the allegations she had made were insufficient and lacked credibility.

On 20 July 2011, the applicant requested the re-examination of her request. On the basis of the documents submitted, the Spanish Delegation of the United Nations High Commissioner for Refugees supported the admissibility of the applicant’s request. This notwithstanding, the Minister of Home Affairs confirmed its previous rejection by a decision delivered on 22 July 2011.

As that last administrative decision had been delivered on Friday evening, on Saturday 23 July 2011 the applicant had to ask the judge on duty, namely, the Juzgado de Instrucción no. 7 of Madrid, to suspend her expulsion to Colombia. The judge granted the suspension until the applicant was able to lodge a request with the Audiencia Nacional for an urgent measure to be applied in this regard.

On 26 July 2011, the applicant brought contentious-administrative proceedings in the Audiencia Nacional against the decision to expel her to Colombia. At the same time, she requested the Audiencia Nacional to suspend her removal to Colombia and grant her authorisation to stay in Spain until it had delivered a substantive decision on her request for international protection.

On 26 July 2011, the Audiencia Nacional rejected the applicant’s request to have her expulsion suspended on the grounds that the circumstances reported, without prejudice to the final decision after the holding of a hearing, did not constitute prima facie a ground for granting international protection and that the effective expulsion of the applicant would not deprive the proceedings of their legitimate aim.

On 27 July 2011 the applicant requested the Court to apply interim measures under Rule 39. That request was granted on 28 July 2011. The Court invited the Spanish Government to halt the applicant’s removal to Colombia until one week after the Audiencia Nacional had determined the substance of the case.

In application of the decision of the European Court of Human Rights, by a decision of 11 August 2011 the Audiencia Nacional declared its decision of 26 July 2011 without effect and decided that the applicant was not to be removed to Colombia until a week after a decision on the merits of her request for international protection had been issued.

COMPLAINTS

The applicant complains under Articles 2 and 3 of the Convention that her life and physical integrity will be at risk if she is ever removed to Colombia.

She also complains under Article 13 of the Convention in conjunction with Articles 2 and 3 that she has not had access to a remedy with automatic suspensive effect, as is required by the Court’s case-law in cases in which there are grounds to suspect that a person runs a risk of ill-treatment or torture if he or she is removed to a certain country.

QUESTIONS TO THE PARTIES

1.  In the light of the applicant’s claims and the documents which have been submitted, would she face a risk of being killed or subjected to treatment in breach of Articles 2 and 3 of the Convention if the expulsion order were enforced?

2.  Did the applicant have at her disposal an effective domestic remedy as required by Article 13 of the Convention and the Court’s case-law on the matter (Gebremedhin [Gaberamadhien] v. France, no. 25389/05, §66, ECHR 2007-II, and Conka v. Belgium, no. 51564/99, §79, ECHR 2002-I)?