Dem EuGH werden Fragen zum Verhältnis der Prüfung drohender Rechtsgutsverletzungen zum Konzept der normativen Vergewisserung vorgelegt und zum Umfang der unionsrechtlichen Schutzpflichten zu jenen aus Art. 3 EMRK und der GFK.
121. In her witness statement of 19 February 2010 Ms Angeli exhibited two press articles from September 2009 indicating that the Athens airport detention centre was severely overcrowded with as many as 240 detainees in accommodation designed to hold 26, resulting in a lack of adequate space for detainees to sleep, rest or exercise, and an increased risk of infection with scabies, tuberculosis and hepatitis. These press reports echoed the earlier Human Rights Watch report, that those returned under the Dublin Regulation consistently comment on the treatment received. Human Rights Watch concluded that it did not regard inhuman and degrading treatment as systemic in Greece but it was also not uncommon. On release from the airport, Ms Angeli's evidence is that Dublin returnees are no longer provided with a red card but, rather, with a "service note", which advises them to go to the Alien's Directorate at Petrou Ralli to register their claim. They are given no information about how to find the Aliens Directorate and the note is written in Greek.
122. The note obtained at Athens airport indicates that a person has expressed the wish to claim asylum but it does not give any access to work, benefits or health care. A returnee can only obtain the red/pink card giving him the status of registered asylum seeker from the Aliens Directorate. Without a red/pink card, returnees are therefore prohibited from working and the evidence is that they are overwhelmingly likely to be destitute and homeless, without access to medical rare or any other form of support. Without a red/pink card, Ms Angeli observes that returnees are also vulnerable to detention, which can lead to transfer to the north and informal expulsion.
123. In order to obtain a red/pink card, Dublin returnees must thus join the thousands of others attempting to register a claim at the Petrou Ralli centre each week. Consistent with UNHCR evidence, Ms Angeli explains that if a Dublin returnee finds the Aliens Directorate, he then faces the same problems as other asylum seekers trying to obtain access. There are often hundreds of asylum seekers and migrants outside. The guards prevent access to the building. Police come out at 6.30am and 8.00am and will ask some of those outside what they want and may deal with those queries. However, it is chaotic and many return time and again to stand outside, unable to get the attention of officials to deal with their case. Some are eventually dealt with after two-four weeks waiting, but others never get to the head of the queue.
124. In evidence on his behalf the Secretary of State now accepts that returnees are given a service note, along with an explanation that they must go to Athens Asylum Department at Petrou Ralli so that their claim can be processed. The Greek authorities' formal response of 11 February 2010 explains that at Petrou Ralli they will be given a red/pink card, valid for 6 months. The British Embassy in Athens reported on 16 November 2009:
"Dublin returnees are hold at the Athens airport, usually for a period of 3 days and are then left to their own devices. If they find their way to the Asylum Division at Petrou Ralli Street, Athens, they are usually not allowed access because of the large number of people waiting outside the premises."
125. Even if they are able to obtain a red/pink card, the claimant's evidence is that Dublin returnees are nonetheless likely to face the same problems of destitution and homelessness as other asylum seekers. Ms Angeli states that the right to seek employment is in practice illusory without a tax number. A tax number will not be granted without an address. Thus homeless asylum seekers will not obtain one and an employer will not in practice grant legal employment. Moreover, asylum seekers can only be employed if there is no Greek or EU citizen to do the work. This is consistent with the conditions for employment set out in Article 4(1) of Presidential Decree 189/1998.
126. Ms Angeli's evidence continues that the Greek authorities provide support for only a small fraction of registered asylum seekers. When support is provided, it is accommodation and essential living needs. Those who are not accommodated are denied any support in Cash or in kind. Fewer than 1000 accommodation places are available, including those not funded by government agencies. Most asylum seekers are given no allowance, even for the basic essentials of life. UNHCR confirms this in its paper published on 11th January 2010 as does the Austrian Red Cross/Caritas Report of 2 December 2009. The evidence is that claimants cannot rely upon the Greek authorities to provide them with shelter and subsistence in accordance with the Reception Conditions Directive.
127. As for those without a red/pink card Ms Angeli concludes that there is a risk of being arrested and, depending on the attitude of the police, informal expulsions. When not detained, the Human Rights Watch evidence was that undocumented asylum seekers often live in dire poverty with inadequate food, health care, and shelter. Ms Angeli comments that until the Dublin Regulation returnee can complete the registration process and obtain a red card there is a heightened risk of arrest each day because, while most police recognise the red card, many will not recognise anything else. Research carried out by the Greek Union for Human Rights in November 2009 revealed asylum seekers being held in detention centres, even when their claims were still pending.
128. In its 2009 position paper UNHCR stated that accommodation capacity in Greece for asylum seekers is grossly insufficient and that as a result many have no shelter or other state support. Single adult male asylum seekers have virtually no chance of benefiting from a place in a reception centre. The centres are generally understaffed and under-resourced, lack appropriate support services and often offer inadequate material conditions. Registered asylum seekers do not receive any financial allowance to cover daily living expenses, notwithstanding Greek law and as a result many live in conditions of acute destitution. Dublin transferees face the same problems.
129. The UNHCR 2009 observations paper said that while detention of asylum seekers who arrive in an irregular manner is not mandatory under Greek legislation, in practice they are systematically detained. At several entry points, the period of detention is prolonged if an individual applies for asylum. UNHCR also notes that conditions in administrative detention facilities are generally inadequate with the exception of two centres. Even there concerns arise due to severe overcrowding, lack of well-trained staff, the absence of formalized regulations and financial constraints. In other locations asylum seekers are detained in unsuitable facilities, such as warehouses and police stations.
130. On 31 July 2009 the British Embassy in Athens conveyed information from the Greek Ombudsman that "conditions in Soufli and Petrou Ralli facilities remain pretty much unchanged. As regards conditions of detainment in themselves ... those chielly depend on the variable of the occasional congestion rate ... If numbers increase - as is usually the case - to 200-300 then conditions are deplorable ... The current period is one of such rising numbers". However, the Secretary of State has received an informal assurance that no claimant returned under the Dublin Regulations would be held in the type of detention facilities referred to in SD v Greece.
(iii) Conclusion on conditions
131. Dublin returnees are generally released within a maximum of 24 hours of arrival at Athens airport. There is a chance of later detention, along with other asylum seekers, but all I can say is that the risk is speculative. In practice it seems that Dublin returnees are not given their red/pink cards at the airport but are required to attend Petrou Ralli. The British Embassy in Athens confirmed the Chaos at Petrou Ralli in July last year. Even if applicants obtain a red/pink card the chances of being granted asylum are very low. There are restrictions an employment opportunities for those with a red/pink card. The conditions facing those who remain in Greece without a red/pink card after having been served with a decision requiring them to leave are harsh. Only very limited accommodation or support is available for asylum seekers. Many asylum seekers continue to live on the street.
Coupled with poor living conditions there was the attempt by the Greek police in the summer of 2009 to remove asylum seekers from various derelict buildings in Athens. However appalling the conditions are, however, they are not materially worse than what was in evidence before the Courts in KRS and Nasseri. [...]
40. THE QUESTIONS REFERRED
1. Does a decision made by a Member State under Article 3(2) of Council Regulation 343/2003 ("the Regulation") whether to examine a claim for asylum which is not its responsibility under the criteria set out in Chapter III of the Regulation fall within the scope of EU law for the purposes of Article 6 of the Treaty of European Union and/or Article 51 of the Charter of Fundamental Rights of the European Union ("the Charter")?
If the answer to Question 1 is "yes":
2. Is the duty of a Member State to observe EU fundamental rights (including the rights set out in Articles 1, 4, 18, 19(2) and 47 of the Charter) discharged where that State sends the asylum seeker to the Member State which Article 3(1) designates as the responsible State in accordance with the criteria set out in Chapter III of the Regulation ("the Responsible State"), regardless of the situation in the Responsible State?
3. In particular, does the Obligation to observe EU fundamental rights preclude the Operation of a conclusive presumption that the Responsible State will observe (i) the claimant's fundamental rights under EU law; and/ or (ii) the minimum standards imposed by Directives 2003/9/EC ("the Reception Directive"); 2004/83/EC ("the Qualification Directive") and/or 2005/85/EC ("the Procedures Directive") (together referred to as "the Directives")?
4. Alternatively, is a Member State obliged by EU law, and if so, in what circumstances, to exercise the power under Article 3(2) of the Regulation to examine and take responsibility for a claim, where transfer to the Responsible State would expose the claimant to a risk of violation of his fundamental rights, in particular the rights set out in Articles 1, 4, 18, 19(2), and/or 47 of the Charter, and/or to a risk that the minimum standards set out in the Directives will not be applied to him?
5. Is the scope of the protection conferred upon a person to whom the Regulation applies by the general principles of EU law, and, in particular, the rights set out in Articles 1, 18, and 47 of the Charter wider than the protection conferred by Article 3 of the European Convention on Human Rights and Fundamental Freedoms ("the Convention")?
6. Is it compatible with the rights set out in Article 47 of the Charter for a provision of national law to require a Court, for the purpose of determining whether a person may lawfully be removed to another Member State pursuant to the Regulation, to treat that Member State as a State from which the person will not be sent to another State in contravention of his rights pursuant to the Convention or his rights pursuant to the 1951 Convention and 1967 Protocol Relating to the Status of Refugees? [...]