2 8 May 2009

SECOND SECTION

Application no. 12922/09 by Fady Moayad AWDESH against Belgium lodged on 9 March 200 9

STATEMENT OF FACTS

THE FACTS

The applicant is an Iraqi Christian who lived with his family in Bagdad . The applicant claims that he met with serious problems of religious persecution in September/October 2007. He was threatened personally and shot at (by unknown private individuals). He decided to flee to his brother who has received asylum and lives in Belgium . Via Iraqi Kurdistan he went to Turkey with the help of a people trafficker. Subsequently he went to Germany via Greece .

Procedure

The applicant applied for asylum in Germany on 12 February 2008. The German authorities kept him in detention and lodged a so-called Dublin claim against Greece . Apparently the applicant ’ s fingerprints were taken in Athens after being picked up by the police. The Dublin claim was accepted by Greece on 26 February 2008. After that, the German authorities rejected the request for asylum and ordered the applicant ’ s transfer to the Greek authorities.

Before that could happen, the applicant left Germany and applied for asylum in Belgium on 11 August 2008. On 13 August 2008 it was decided that the applicant would be kept in a closed centre for asylum seekers, apparently because the authorities had discovered on the basis of a fingerprint-comparison that the applicant had already applied for asylum in Germany .

On 14 August 2008 the Belgian authorities lodged a Dublin claim against Germany , after which the German authorities, on 19 August 2008, informed the Belgian authorities that Greece , upon their request, had already agreed to receive the applicant. Then Belgium got in touch with Greece and - after some discussions between the two countries - on 19 November 2008 the Greek authorities agreed to the transfer of the applicant to Greece , being the country where the applicant had first entered the Schengen-area.

On 4 March 2009 the Aliens ’ Office refused to stay the applicant ’ s expulsion and told him that he had to leave the country, that he would be transferred to Greece and that he would be kept in a closed centre in the meantime.

The next day, 5 March 2009, the applicant lodged with the Aliens ’ Appeal Council an urgent request for suspension of this decision. This request was denied by judgment of 6 March 2009 (NB: in the Belgian procedure a regular appeal is not suspensive, therefore suspension has to be requested via an urgent procedure).

On 9 March 2009 this Court received a request for the application of R39 in regard to the applicant ’ s removal, which was set for 12 March 2009. R39 was applied by decision of the Acting President of the Section on 11 March 2009 on the ground that there was no certainty that the applicant would have the possibility to apply for asylum in Greece or receive a proper assessment of his application. Furthermore , it was unclear whether there could be a violation of Article 3 in regard to the general situation in Greece for asylum seekers (cf. recent reports from the Human Rights Commissioner and the Human Rights Watch, cited below). Questions were put to the Belgian G overnment.

On 29 March 2009 the applicant lodged a request for the annulment of the Aliens ’ Office decision of 4 March 2009 before the Aliens ’ Appeal Council.

On 6 April 2009 the applicant lodged a request in cassation before the Council of State against the judgment of the Aliens ’ Appeal Council of 6 March 2006 (concerning the request for suspension).

Both procedures are pending.

The application of R39 has been prolonged until 5 June 2009. New questions we re put to the G overnment by letter of 14 April 2009.

QUESTIONS TO THE PARTIES

1 . Would the applicant ’ s removal first to Greece and then, possibly, to Iraq give rise to a real risk that he would be subjected to treatment in violation of Article 3 of the Convention?

- In this connection, would the applicant ’ s removal to Greece of itself give rise to a possible violation of Article 3 of the Convention, given recent reports of allegedly appalling conditions of detention in Greek holding centres? (See the recent reports of Mr. Hammarberg, Commissioner for Human Rights of the Council of Europe - Comm.DH 2009[6] - of 4 February 2009, and of Human Rights Watch - “Stuck in a revolving door”: http://www.hrw.org/en/reports/2008/11/26/stuck-revolving-door- 0 .)

2. Did the applicant have at his disposal an effective domestic remedy to challenge the proposed removal from Belgium, both as regards the Greek and possible Iraqi destinations, which rem edy he has or could have exhausted, as required by Article 35 § 1 of the Convention?

- The applicant is invited to explain and substantiate his fear of persecution in Iraq .

- Was he able to put this matter before the Belgium authorities? Did the Belgian authorities take such elements into consideration before deciding to remove him to Greece ? If not, on what basis have the Belgian authorities been assured that these arguments could be put effectively before the Greek authorities?

- The Belgian Government are invited to submit a response in respect of this particular individual and not a general response based on the Dublin Convention or Greek legislation.

The Greek Government are invited, as a third party intervener under Article 36 § 2 of the Convention, to provide responses from their perspective as the first receiving State of the applicant asylum seeker.