European Court of Human Rights

THIRD SECTION

Applications nos. 62799/11 and 62808/11
O.G.S. against Spain
and D.M.L. against Spain
both lodged on 10 October 2011

STATEMENT OF FACTS

THE FACTS

The applicants, Mr O.G.S. and Ms D.M.L, are a couple of Colombian nationality who seek international protection in Spain. They are represented before the Court by Mr A. García Cores, a lawyer practising in Madrid.

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

On 30 September 2011, the applicants arrived at Madrid-Barajas Airport from Colombia. Upon their arrival they submitted a request for international protection to the Spanish authorities. They argued that they had fled from Colombia because they had been receiving death threats from the FARC-PE (Revolutionary Armed Forces of Colombia-People’s Army) since early 2008 due to O.G.S.’s active political membership of the Colombian Conservative Party. They contended that these threats had forced them to change address on several occasions, to physically separate during certain periods and even to request physical protection from the national authorities. In fact, they explained that sometime in late 2008, after having made several requests to that effect, they had been admitted to a security programme, which was cancelled in January 2009 for reasons unknown to them. They reported that in September 2010, while D.M.L. was at her parent’s house, more than thirty men, who identified themselves as members of the FARC-EP, broke into the house, beat them and gave them a period of twenty-four hours to leave, which they did. After having stayed for some time in another city, D.M.L.’s parents moved to Bogota, where they were allegedly registered as displaced persons after having reported the above-mentioned facts to the police. As O.G.S. and D.M.L. allegedly continued to receive threats from FARC-PE regardless of their several changes of address and location, they took the decision to leave Colombia and seek political asylum in Spain.

On 3 October 2011 the Minister of Home Affairs rejected the applicants’ requests 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 applicants did not fall within the legal grounds for granting international protection, since the persecution they complained of was not by the national authorities, which, furthermore, had not showed any degree of tolerance of the facts reported by the applicants. The Minister also considered that the allegations they had made were insufficient and lacked credibility.

On 5 October 2011, the applicants requested the re-examination of their 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 decisions delivered on 7 October 2011.

As that last administrative decision had been delivered on Friday evening, the applicant was forced to ask the judge on duty, namely, the Juzgado de Instrucción no. 34 of Madrid, to suspend their expulsion to Colombia. The judge refused to do so on procedural grounds on that very evening.

On 8 October 2011, the applicants made the same request to the judge on duty on Saturday, namely, the Juzgado de Instrucción no. 40 of Madrid, who suspended the applicants’ removal until 10 October 2011.

On 10 October 2011, the applicants brought contentious-administrative proceedings in the Audiencia Nacional against the decisions to expel them to Colombia. At the same time, they requested the Audiencia Nacional to suspend their removal to Colombia and grant them authorisation to stay in Spain until it had delivered a substantive decision on their requests for international protection.

On 10 October 2011, the Audiencia Nacional rejected the applicants’ requests to have their expulsions suspended on two grounds: firstly, that the circumstances reported did not constitute a reason for granting international protection, since their alleged persecution was by private agents and not by the national authorities of Colombia which had in fact granted them protection and provided them with bulletproof vests and other means of self-protection; and secondly, that the expulsion of the applicants would not deprive the proceedings of their legitimate aim.

On 11 October 2011 the applicants requested the Court to apply interim measures under Rule 39. Those requests were granted on 11 October 2011. The Court invited the Spanish Government to halt the applicants’ removal to Colombia until one week after the Audiencia Nacional had determined the substance of the case.

COMPLAINTS

The applicants complain under Articles 2 and 3 of the Convention that their lives and physical integrity will be at risk if they are ever removed to Colombia.

They also complain under Article 13 of the Convention in conjunction with Articles 2 and 3 that they have 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

  In the light of the applicants’ claims and the documents which have been submitted, would they face a risk of being killed or subjected to treatment in breach of Articles 2 and 3 of the Convention if the expulsion orders were enforced?

 

  Did the applicants have at their 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 Čonka v. Belgium, no. 51564/99, §79, ECHR 2002‑I)?